ALJDEC decisions subject to certification as final

10F-12509-DWM · Department of Weights and Measures · 2011-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 28, 2010 APPEARANCES: Assistant Attorney General Mona Baskin for the Arizona Department of Weights and Measures; Larry Payne Ware did not appear at the hearing. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On the evening of April 9, 2010, Investigator James J. Stroh (“Investigator Stroh”), an investigator with the Arizona Department of Weights and Measures (“Department”), was on duty and responded to a telephone call made by Scottsdale Police concerning a stretch limousine with license plate AJR2419 (“Vehicle”) issued to Larry Payne Ware (“Mr. Ware”). Scottsdale Police had detained the Vehicle that had been stationary in an unloading zone and had observed the Vehicle driving around nightclubs in the “Scottsdale bar area.” 2. Scottsdale Police requested that Investigator Stroh determine if the Vehicle was a limousine licensed by the Department and whether it had commercial insurance. Investigator Stroh obtained the license plate number of the Vehicle from the Scottsdale Police and ran the license plate through the Division of Motor Vehicles’ (“DMV”) database and the Department's database. Investigator Stroh found that the Vehicle was licensed with DMV and had not been issued commercial plates. 3. Investigator Stroh also determined that the Vehicle did not carry commercial insurance, which was required of a limousine for hire, and the Vehicle was not licensed by the Department. 4. Investigator Stroh had a discussion with the Scottsdale Police Officers and learned that Mr. Ware had informed them that he had just dropped off fares. Mr. Ware admitted to Investigator Stroh that he was driving the Vehicle without commercial insurance while it was not licensed by the Department. During his conversation with Investigator Stroh, Mr. Ware vacillated from stating that he had been driving the Vehicle as a limousine to several other reasons for driving the Vehicle, none of them relating to its use as a limousine. 5. Mr. Ware acknowledged to Investigator Stroh that he was aware of the Department licensure requirement, commercial plate requirement, and commercial insurance requirement for limousines. 6. Investigator Stroh’s investigation revealed that previously the Vehicle was licensed by the Department but that upon expiration of the license issued by the Department, Mr. Ware had not renewed the license. 7. Mr. Ware could not produce a valid registration for the Vehicle to the Scottsdale Police, who issued a citation to him for not having the Vehicle registered with the DMV and for driving a limousine that was not licensed by the Department. 8. Investigator Stroh provided Mr. Ware with the Department’s Regulatory Bill of Rights and informed him that he was taking the Vehicle off the road. Investigator Stroh arranged for the Vehicle to be towed and impounded its plates. Investigator Stroh also initiated the suspension of the Vehicle’s plates through the DMV database. 9. Investigator Stroh testified that for a limousine for hire, the limousine is required to be licensed with the Department, it is to have commercial insurance in effect, it is to be registered with the DMV, and an agreement showing its use as a limousine is to be in possession of the driver of the Limousine. Investigator Stroh also testified that in order to show that a vehicle has a valid license with the Department, its license plates must be registered with the Department. 10. Investigator Stroh found the following violations: a) that the Vehicle was not licensed by the Department while it was operating as a limousine; and b) that the Vehicle did not have commercial insurance while it was operating as a limousine.[1] Additionally, Investigator Stroh testified that Mr. Ware could not produce the requisite agreement showing that the limousine had been hired to transport passengers on the evening of April 9, 2010. 11. On May 18, 2010, the Department issued a Notice of Violation alleging violations of A.R.S. §§ 41-2091 and 41-2111 and assessed a civil penalty of $500.00. Investigator Stroh testified that he cited Mr. Ware for two violations and that the purpose for the imposition of a civil penalty is to bring the cited person into compliance with the law. 12. Mr. Ware failed to present any evidence to refute or rebut the evidence presented by the Department. Applicable Law 1. A.R.S. § 41-2091(K) provides: The department shall not issue a license for a taxi, livery vehicle or limousine, unless the taxi, livery vehicle or limousine meets the requirements for both of the following: 1. Motor vehicle licensing as prescribed by the department of transportation. 2. Motor vehicle insurance as prescribed by section 28-4033.

2. A.R.S. § 41-2091(M) requires a limousine have a license issued by the Department inside the vehicle at all times. 3. A.R.S. § 41-2111(C) provides: The owner of any business who has not applied for and has not been issued a license for the right to do business, involving the use of a commercial device, by the department and who is found selling or offering for sale or delivering or distributing to a consumer is guilty of a class 2 misdemeanor, and the department shall confiscate and seize the commercial device or any vehicle tank, or vehicle tank and meter, or any other such measuring device used by the business for the sale, delivery or distribution as evidence.

4. The term “commercial device” is defined in A.R.S. § 41-2051(7) as: any weighing, measuring, metering or counting device that is used to determine the direct cost of things sold or offered or exposed for sale, or used to establish a fee for service if the cost is based on weight, measure or count, except that it does not include those devices used for in-house packaging, inventory control or law enforcement purposes.

5. The term “limousine” is defined in A.R.S. § 41-2051(15) as: 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.

6. Pursuant to A.R.S. § 41-2115, the Director of the Department has discretion to assess a civil penalty against a licensee of the Department up to $1,000.00 for each violation. CONCLUSIONS OF LAW 1. This matter is a disciplinary matter and, as such, the Department must prove by a preponderance of the evidence that Respondent violated the statutes and rules pertaining to limousines, as set forth in the Notice of Hearing issued in this matter. See A.R.S. § 41-1092.07(G)(3) and A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). It is evidence 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). 3. The Department argued that Respondent violated the above-mentioned provisions of A.R.S. § 41-2091 because the Vehicle did not have commercial insurance and the Vehicle was not licensed by the Department when it was operating as a limousine on April 9, 2010. Respondent failed to present any argument in response to the Department’s assertions. 4. The weight of the evidence of record established that Respondent violated A.R.S. § 41-2091(K)) by not having the Vehicle licensed by the Department and not having commercial insurance while the Vehicle was operating as a limousine. 5. The weight of the evidence of record established that Respondent violated A.R.S. § 41-2091(M) by not having the Vehicle licensed by the Department while it was operating as a limousine. 6. The Department argued that Respondent violated the provisions of A.R.S. § 41-2111 because it was a commercial device that was in business without being licensed by the Department. There was no argument presented that the Department’s violation determination was incorrect. 7. The weight of the evidence established for purposes of this hearing that Respondent violated A.R.S. § 41-2111(C) by the Vehicle not meeting the Department’s licensure requirements while it was operating as a limousine. 8. The Department met its burden of proving by a preponderance of the evidence that Respondent violated the above-mentioned provisions of law and that the civil penalty assessed against Respondent in the amount of $500.00 is reasonable and appropriate. ORDER Based on the above, Respondent shall pay a $500.00 civil penalty to the Department within forty days of the effective date of the Order entered 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 5 days from the date of that certification. Done this day, January 13, 2011.

/s/ Lewis D. Kowal Administrative Law Judge

Transmitted electronically to:

Kevin Tyne, Interim Director Arizona Department of Weights and Measures ----------------------- [1] Investigator Stroh confirmed that on April 9, 2010, the Vehicle had liability insurance but did not have commercial insurance as required by law for a limousine.

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