ALJDEC decisions subject to certification as final

11F-12791-DWM · Department of Weights and Measures · 2010-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 15, 2010 APPEARANCES: Mona Baskin, Assistant Attorney General representing the Department of Weights and Measures; J.J. Stroh, Department witness; Doug Keller, Department witness ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ The Department of Weights and Measures (“the Department”) issued a notice to the Appellant informing Appellant that the Department was imposing a $500.00 civil penalty pursuant to A.R.S. § 41-2115 for violating A.R.S. § 41-2091 and/or A.R.S. § 41-2111. The greater weight of the evidence at hearing established that the imposition of the civil penalty was supported by rationality, by legal authority, and by legal principle. 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’s taxi driver was driving his livery/for hire vehicle while his driver’s license was suspended, the Department issued a Notice of Hearing informing the Appellant that the Department had determined that this constituted a violation of the statutes that govern livery/for hire vehicles, and a $500.00 civil penalty was imposed. 2. The Appellant requested a hearing in the matter. When the hearing convened, the Appellant’s representative requested a continuance in order to secure the attendance of a witness. The matter was continued, but when it reconvened, the Appellant failed to appear at hearing. 3. The weight of the evidence adduced at hearing established that the Appellant’s taxi driver was driving his livery/for hire vehicle while his driver’s license was suspended. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Director of the Department of Weights and Measures pursuant to A.R.S. §§ 41-2115 and 41- 1092 et seq. 2. In this case, the Department argued that a civil penalty of $500.00 was the appropriate amount because it is a reasonable penalty for violation of the applicable statute and because the driver did, indeed, violate that statute. 3. Pursuant to A.R.S. § 41-2111(E), if a Department licensee uses a commercial device contrary to any provision of that chapter or any rule adopter pursuant to it, the Department shall suspend, revoke or refuse to renew the license in addition to any other penalty imposed by that chapter.

4. A.R.S. § 41-2091(L)(1) requires licensees to maintain the motor vehicle licensing required by the Department of Transportation. 5. A.R.S. § 41-2115(A) provides that anyone violating that chapter, any Department rule or any licensing requirement is subject to a civil penalty, though the licensee may request a hearing to review the proposed penalty, which will be conducted pursuant to Chapter 6, Article 10, Title of the Arizona Revised Statutes. This statute 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), the Department was authorized to impose a civil penalty against the Appellant for failing to meet the Department licensing requirements for a taxi, livery vehicle or limousine under A.R.S. § 41-2091(L)(1). 6. The Department established that Appellant violated the above statutory requirement by the greater weight of the evidence at hearing. Further, its decision to impose a $500.00 civil penalty for the violation was supported by rationality, by legal authority, and by legal principle. 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, December 17, 2010

/s/ Dorinda M. Lang 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