ALJDEC decisions subject to certification as final

11F-13194-DWM · Department of Weights and Measures · 2011-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 2011, with the record held open until April 1, 2011 APPEARANCES: No one appeared for Spiral Inc.; Assistant Attorney General Anne Froedge appeared for the Department of Weights and Measures ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On February 1, 2011, the Department of Weights and Measures (“Department”) issued a Notice of Hearing setting the above- captioned matter for hearing at 3:00 p.m. March 17, 2011, by the Office of Administrative Hearings, an independent state agency. 2. No representative appeared for Spiral Inc. and the matter was convened in its absence at about 3:15 p.m. 3. The Department presented the testimony of its investigator, Shannon Bell. 4. Spiral Inc. has a gas station located at 616 West Baseline Road in Tempe (the “station”). 5. On December 16, 2010, Mr. Bell conducted an inspection of the fuel pumps at the station. 6. Mr. Bell found that 9 of the 12 fuel pumps did not conform to the applicable statutes and rules. 7. On December 29, 2010, the Department issued Notice of Violation No. 11F 13194 DWM (“NOV”) to Spiral Inc. The NOV sets out the specific violations and is incorporated in this Decision by reference. 8. Mr. Bell found that pumps 1, 2, 3, 4, 9, 10, 11, and 12 each had a “meter jump” violation. 9. Mr. Bell found that pumps 1 and 9 each had a “meter creep” violation. 10. Mr. Bell found that pumps 3 and 9 each had a “minus volume” violation. 11. A meter jump occurs when the meter runs before any gas flows. When a meter jump occurs, consumers pay for gas that they did not receive. 12. A meter creep occurs when the meter continues to run after the gas stops flowing. When a meter creep occurs, consumers pay for gas that they did not receive. 13. In a minus volume violation, the pump does not dispense the full volume of gas that is registered on the meter. Minus volume violations result in consumers paying for gas that they did not receive. 14. In the NOV, the Department requested a civil penalty of $4,800. In an affidavit filed on March 30, 2011, the Department provided that it had reviewed the matter and had determined that the appropriate civil penalty is $3,600. 15. In the affidavit, the Department provided that Spiral Inc. had committed 8 meter jump violations, 2 meter creep violations, 1 minus volume violation, and 1 “hose/non vapor” violation. The affidavit shows Spiral was assessed a $300 penalty for each violation. 16. Neither the Notice of Hearing nor the NOV allege that there was “hose/non vapor” violation. 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. If the Department finds during an inspection that a commercial device does not comply with the requirements of A.R.S. Title 41, Chapter 15, or A.A.C. Title 20, Chapter 2, and the lack of compliance favors the owner or operator of the commercial device, the Department shall impose a $300 civil penalty on the person who owns or operates the commercial device. See A.A.C. R20-2-104(F)(10). 5. Fuel pumps are commercial devices as that term is used in the applicable statutes and rules. 6. The preponderance of the evidence shows that Spiral Inc. committed 8 meter jump violations, 2 meter creep violations, and 1 minus volume violation. Spiral Inc. is subject to a civil penalty of $300 for each of the 11 proven violations. 7. There is insufficient evidence to show that Spiral Inc. committed a “hose/non vapor” violation and Spiral Inc. was not provided proper notice of that alleged violation. 8. Spiral Inc. is required to pay a civil penalty of $3,300. ORDER IT IS ORDERED that Spiral Inc.’s appeal of Notice of Violation 11F 13194 DWM is affirmed in part and denied in part; IT IS FURTHER ORDERED that within 10 days of the effective date of the final Order issued in this matter, Spiral Inc. shall pay a civil penalty of $3,300.00 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, April 20, 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