ALJDEC decisions subject to certification as final

10F-12365-DWM · Department of Weights and Measures · 2011-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 2011

APPEARANCES: Anne Froedge, Assistant Attorney General representing the Department of Weights and Measures; J.J. Stroh, Department witness; Dan Egge, observer

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ The Department of Weights and Measures issued a notice to Jay Kliener (“Appellant”) informing him that it was imposing a $500.00 civil penalty against him. The greater weight of the evidence at hearing established that the imposition of the civil penalty was reasonable and supported by legal authority. Therefore, it shall be recommended that the determination be sustained. FINDINGS OF FACT 1. Following a traffic stop during which it was discovered that the Appellant was transporting passengers in a livery or “for hire” vehicle with several regulatory violations, the Department of Weights and Measures (“DWM”) issued a Notice of Violation informing the Appellant that DWM had determined that the violations warranted the imposition of a $500.00 civil penalty. Appellant appealed the decision and the matter was set for a hearing at the Office of Administrative Hearings, an independent administrative agency conducting hearings in contested matters arising out of State regulation. DWM issued a Notice of Hearing to Appellant, which set the date, time and location of the hearing and informed the Appellant that failure to appear at the hearing could result in the hearing proceeding without him. 2. Although additional time was given to allow for unforeseen delays, no one appeared at the hearing on behalf of the Appellant or on behalf of his license. 3. DWM Investigator, J.J. Stroh, testified as to the circumstances surrounding the discovery of the violations at issue wherein he was contacted by a police officer during a traffic stop, and either he or the police officer personally witnessed the violations. Mr. Stroh stated that he found Appellant responsible for five violations: no DWM license for the vehicle; no DWM decal; no commercial insurance; expired license plate/registration; and no interior or exterior signage. Mr. Stroh stated that he submitted his findings to DWM, which uses a computer program to determine the appropriate civil penalties. DWM determined to issue a Notice of Violation (Exhibit 3) charging the Appellant with only three violations and imposing only a $500.00 civil penalty because its goal is to encourage voluntary compliance with the applicable laws and rules governing for hire vehicles and other commercial devices. The violations charged against the Appellant were lack of a DWM license, lack of proper insurance, and lack of required signage. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Director of DWM pursuant to A.R.S. §§ 41-2115 and 41-1092 et seq. 2. A.R.S. § 41-2115(A) provides that anyone violating the provisions of that chapter, any rule of DWM or any licensing requirement is subject to a civil penalty. A hearing may be requested, which will be conducted pursuant to Chapter 6, Article 10, Title 41 of the Arizona Revised Statutes. A.R.S. § 41-2115(A) further provides that, except as provided in subsection B (not applicable) the civil penalty shall not exceed $1,000.00 for each infraction. Therefore, by the authority of A.R.S. § 41-2115(A), DWM might have issued higher civil penalties against the Appellant. 3. DWM alleged that Appellant was in violation when he commercially used a for hire vehicle that did not have a current DWM license. A.R.S. § 41-2111 provides that a commercial device, such as a for hire vehicle, must have a DWM license. See also A.R.S. § 41-2091(M). The greater weight of the evidence at hearing established that Appellant did not have a current DWM license when he was cited. 4. DWM alleged that Appellant did not have proper insurance for his vehicle. Mr. Stroh testified that he confirmed with Department of Transportation records that Appellant had no insurance at all at the time of his traffic stop. (Exhibit 1, pages 5 and 6.) Proper insurance is required on for hire vehicles, pursuant to A.R.S. § 41-2091(K) and (L). See also A.R.S. §§ 28-4032 and 28-4033. The greater weight of the evidence at hearing established that the Appellant did not have insurance on his for hire vehicle when he was cited. 5. DWM alleged that Appellant’s for hire vehicle did not have proper signage. A.R.S. § 41-2096 requires livery vehicles to have interior signage at all times, though the driver may take off its exterior signage when he has accepted a passenger. The evidence at hearing established that the Appellant had no exterior or interior signage. While he was illegally transporting passengers without a license or insurance, the greatest lenience may be granted for his failure to have exterior signage since his vehicle, if licensed by DWM, could have been considered a livery vehicle. However, he was required to have interior signage at all times, and the evidence at hearing established that he did not. 6. DWM established that Appellant violated the above statutory requirements by the greater weight of the evidence at hearing. Furthermore, DWM’s decision to impose a $500.00 civil penalty was reasonable and supported by legal authority. Therefore, it shall be recommended that the determination be sustained.

RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the determination to impose a civil penalty of $500.00 be sustained.

Done this day, October 25, 2011.

/s/ Dorinda M. Lang 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