ALJDEC decisions subject to certification as final

11F-12918-DWM · Department of Weights and Measures · 2010-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 2010 APPEARANCES: Assistant Attorney General Mona Baskin on behalf of the Arizona Department of Weights and Measures; Rodolfo Plascencia on behalf of Haven Executives, LLC. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. This matter involves an appeal of a Notice of Violation issued by the Arizona Department of Weights and Measures (“Department”) against Haven Executive, LLC (“Respondent”). 2. At all times relevant to this matter, Rodolfo Plascencia (“Mr. Plascencia") was the managing member of Respondent. 3. At all times relevant to this matter, Respondent owned and operated a Lincoln Town Car with license plate number CE 32127 (“Vehicle”). 4. On September 21, 2010, Debra Rader (“Investigator Rader”), an investigator with the Department, was driving towards her home when she observed the Vehicle on the road and noticed it had commercial license plates. Investigator Rader noted the license plate and the next business day conducted an investigation by checking the Vehicle in the Department’s database as well as that of the Motor Vehicle Division’s database. The searches resulted in her learning that the Vehicle had been licensed by the Department as a limousine on May 28, 2009, and that the license expired on June 1, 2010. This meant that the decal issued by the Department for the Vehicle had also expired. She also learned that the Vehicle had commercial insurance that was in effect as of September 22, 2010. 5. On September 22, 2010, Investigator Rader issued a Notice of Violation, finding a violation of A.R.S. § 41-2091(M) and assessing a $500.00 civil penalty. The Notice of Violation was sent to the address of record that the Department had for Respondent. 6. Mr. Plascencia did not dispute that on September 21, 2010, he was driving the Vehicle as a limousine for hire but presented evidence in mitigation of the civil penalty to be assessed. 7. Mr. Plascencia testified as to extenuating circumstances regarding his failure to have the Vehicle licensed by the Department. He testified that in July 2009, while in Guadalajara, Mexico, he contracted viral encephalitis and suffered memory problems as a result of the condition. 8. Mr. Plascencia contended that because of the above-mentioned medical condition, he forgot to renew the Vehicle’s license. In support of that contention, Respondent presented into evidence a hospital report that provided the diagnosis of viral encephalitis and detailed his treatment. The report also indicated that he was discharged from the hospital without having fully recovered. 9. Respondent failed to present reliable medical evidence that established that the condition Mr. Plascencia experienced in July 2009 still had had an effect on his memory as of September 21, 2010. 10. Mr. Plascencia also testified that, during the relevant time, he was undergoing a divorce and did not live at the address to which the Department sent the Notice of Violation. Mr. Plascencia asserted that he did not receive the Notice of Violation. However, Mr. Plascencia did not explain how he learned of the Notice of Violation and appealed it if he did not receive the Notice of Violation. He also failed to explain why, if he was not living at the address of record the Department had for him, he did not arrange for mail to be forwarded to his most current residence. 11. For the time period between December 2009 and the present, Mr. Plascencia’s testimony vacillated between testifying that he drove the Vehicle as a limousine while it did not have insurance, that he drove another vehicle he owned as a limousine that was not licensed by the Department as a limousine, to just driving the other vehicle for his personal use. 12. Although Mr. Plascencia testified that since December 2009, he had difficulty remembering his regular client’s pick-up locations and destinations, he failed to explain how he could be driving the Vehicle and not be aware that it required licensure. If anything, driving the Vehicle as a limousine should have reinforced to Mr. Plascencia that the Vehicle required licensure to remain in compliance with the law. Applicable Law 1. “A taxi or livery vehicle shall have a license issued under this chapter posted on the outside of the rear window as required by the department. A limousine shall carry a license issued under this chapter inside the vehicle at all times.” A.R.S. § 41-2091(M). 2. 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 contended and presented evidence to support its finding that the Vehicle was operating as an unlicensed limousine during the relevant time. 4. 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 and operating as a limousine. 5. Respondent’s evidence presented in mitigation of the proposed civil penalty is found to be of questionable reliability and is not as convincing or persuasive as the evidence presented by the Department. 6. 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, December 22, 2010.

/s/ Lewis D. Kowal Administrative Law Judge

Transmitted electronically to:

Kevin Tyne, Interim Director Arizona Department of Weights and Measures

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