ALJDEC decisions subject to certification as final

11F-13209-DWM · Department of Weights and Measures · 2011-03-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 1, 2011 APPEARANCES: Loma Catalina Co. was represented by its president Robert Mahlstede; the Department of Weights and Measures was represented by Assistant Attorney General Elizabeth Campbell ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On January 5, 2011, the Department of Weights and Measures (“Department”) issued a Notice of Hearing setting docket number 11F-13161-DWM for hearing at 1:00 p.m. March 1, 2011, by the Office of Administrative Hearings, an independent state agency. 2. On January 8, 2011, the Department issued a Notice of Hearing setting docket number 11F-13209-DWM for hearing on March 7, 2011. 3. The matters were consolidated and heard on March 1, 2011. 4. Loma Catalina Co. (“Loma”) was represented by its president Robert Mahlstede, who also testified. The Department presented the testimony of its investigator Kenneth Ford. Docket Number 11F-13161-DWM 5. On December 2, 2010, Mr. Ford conducted an inspection of the fuel pumps at Loma’s gas station located at 8080 North Oracle Road, Tucson. 6. Mr. Ford reported that there was a “meter jump” for pump 11 and that the price per gallon display was not readable for pump 6. 7. Mr. Ford testified that he does not know how fuel pumps work and that his job is limited to testing the fuel pumps, not determining what might cause an alleged violation. 8. On December 8, 2010, the Department issued Notice of Violation No. 11F13161DWM (the “first NOV”) to Loma. 9. The first NOV alleges that the alleged meter jump was a violation of National Institute of Standards and Technology (“NIST”) Handbook 44 sections G-UR 4.2 and S.1.6.3. 10. At the hearing, the Department dropped the allegation with respect to pump 6’s display. 11. In the first NOV, the Department requested a civil penalty of $1200, which was assessed as $600 for the alleged meter jump on pump 11 and $600 for the alleged violation at pump 6. 12. Because the Department withdrew its allegation with respect to pump 6, it reduced its requested penalty to $600 (i.e., $300 each for the alleged violations of Handbook 44 sections G-UR 4.2 and S.1.6.3). 13. Mr. Ford testified that the meter jump occurred when he pushed the button to turn on pump 11 and the meter went from 0.00 for both the cost and volume of fuel, to $0.31 and to 0.114 gallons. 14. Mr. Ford testified that he followed the appropriate procedures in conducting his investigation, but he could not recall what those procedures are. When conduction an investigation, Mr. Ford uses a manual that sets out the required procedures. Mr. Ford did not have that manual with him at the hearing. 15. Mr. Mahlstede asserted that Mr. Ford was required to print a receipt when he conducted the investigation. Mr. Ford testified that he was not required to print a receipt. 16. Mr. Mahlstede’s assertion is not supported by the preponderance of the evidence because there was no evidence adduced to show that the Department is required to follow the procedures set forth the document he relied on, “EPO No. 21,” and that document shows on its face that it is a recommendation only. See Exhibit B. 17. Exhibit C is a copy of 4 pump-test receipts that Mr. Mahlstede had printed after Mr. Ford completed his inspection. One of those receipts shows a volume of 0.141 gallons at a total price of $0.41. 18. Mr. Ford testified that he found other violations during his inspection on December 2, 2010, but these other violations were not at issue in the instant hearing because he made errors in his paperwork. Docket Number 11F-13209-DWM 19. On December 20, 2010, Mr. Ford conducted an inspection of the fuel pumps at Loma’s gas station located at 4390 North 1st Avenue, Tucson. 20. Mr. Ford reported that pump number 1 allowed fuel to drain from the nozzle when the pump was not turned on, which is known as an “antidrain” violation, and that pump number 1 had a “meter creep.” 21. On January 6, 2011, the Department issued Notice of Violation No. 11F13209DWM (the “second NOV”) to Loma. 22. The second NOV alleges that Loma violated Handbook 44 sections G-UR 4.2 and S.3.7. Handbook 44 section G-UR 4.2 covers abnormal performance of equipment (i.e., the meter creep) and Handbook 44 section S.3.7 covers antidrain. 23. In the second NOV, the Department requested a civil penalty of $600, which is based on a requested penalty of $300 for the alleged abnormal performance and $300 for the alleged antidrain. 24. In conducting his testing on pump 1, Mr. Ford observed that diesel fuel drained out of the nozzle when the pump was not operating. Mr. Mahlstede acknowledges that an antidrain violation did occur and Loma has had the pump repaired. 25. The parties dispute whether a meter creep violation occurred. 26. Mr. Ford testified that a meter creep occurs when the meter runs after the dispensing handle is released. However, Mr. Ford could not provide a specific citation to Handbook 44 to confirm this definition. 27. Mr. Mahlstede testified that the alleged meter creep was not a separate violation because it was a result of the antidrain condition and how Mr. Ford conducted his tests. 28. According to Mr. Mahlstede, a customer’s volume is based on the assumption that the hose will be full both when she starts pumping and when she stops pumping. 29. Mr. Ford allowed fuel to drain from the hose when he conducted the antidrain test. Mr. Ford then pumped the 10.04 gallons for his next test but could not say that he allowed the hose to refill before pumping those 10.04 gallons. 30. Mr. Mahlstede asserts the alleged “meter creep” from 10.04 to 10.20 gallons was merely the hose refilling. 31. Mr. Ford did not have sufficient knowledge of how fuel pumps operate to confirm or rebut Mr. Mahlstede’s testimony. 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. Loma was required to comply with the standards set out in the 2003 version of the NIST Handbook 44. See A.R.S. § 41-2064; A.A.C. R20-2-101(12). 5. 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). 6. Fuel pumps are commercial devices as that term is used in the applicable statutes and rules. Docket Number 11F-13161-DWM 7. The preponderance of the evidence shows that there was a meter jump on pump 11 during Mr. Ford’s inspection on December 2, 2010. Based on the meter jump, pump 11 was not in compliance with the applicable statutes and rules, and that lack of compliance favored Loma. Consequently, Loma is subject to a civil penalty for the meter jump violation. 8. The Department argues that because this can be classified as a violation of both Handbook 44 section G-UR 4.2 and Handbook section S.1.6.3, there are two violations, which results in a $600 civil penalty. The Department’s argument however is not consistent with A.A.C. R20-2-104(F)(10), which limits the civil penalty to $300. 9. Loma is subject to a $300 civil penalty for the meter jump violation at pump 11. Docket Number 11F-13209-DWM Antidrain Violation 10. The preponderance of the evidence shows that there was an antidrain violation on pump 1 during Mr. Ford’s inspection on December 20, 2010. Based on the antidrain violation, pump 1 was not in compliance with the applicable statutes and rules. 11. Mr. Mahlstede testified that a consumer’s measured volume is based on the hose being full when the consumer starts pumping. As such, the antidrain violation would result in a consumer paying Loma for diesel fuel that she did not receive, which favors Loma. 12. Consequently, Loma is subject to a $300 civil penalty for the antidrain violation at pump 1. Meter Creep/Abnormal Device Violation 13. The Department alleges that Loma violated Handbook 44 section G-UR 4.2 (abnormal performance of equipment) based on the allegation that there was a meter creep at pump 1. 14. The Department has failed to meet the burden of proof to show that there was a meter creep violation. 15. The Department relied solely on Mr. Ford’s testimony to show that the meter creep violation occurred. But Mr. Mahlstede testified that what Mr. Ford observed was the meter running as the hose refilled and that this occurred based on how Mr. Ford conducted his series of tests at pump 1. 16. In light of Mr. Mahlstede’s testimony, Mr. Ford’s testimony is not sufficiently persuasive to meet the burden of proof, considering that: (1) Mr. Ford does not understand how fuel pumps work; (2) Mr. Ford could not precisely define meter creep or provide a citation to Handbook 44 for such a definition; (3) Mr. Ford could not describe the procedures he followed during his testing, because he did not have his manual with him; and (4) although Mr. Ford testified that he followed the appropriate procedures, he also acknowledged that he had made paperwork errors during his December 2nd investigation, which calls into question his reliability. ORDER Docket Number 11F-13161-DWM IT IS ORDERED that Loma Catalina Co.’s appeal of Notice of Violation 11F13161DWM is affirmed in part and denied in part; IT IS FURTHER ORDERED that within 15 days of the effective date of the final Order issued in this matter, Loma Catalina Co. shall pay a civil penalty of $300.00 to the Department of Weights and Measures for the violation found in Docket Number 11F-13161-DWM. Docket Number 11F-13209-DWM IT IS ORDERED that Loma Catalina Co.’s appeal of Notice of Violation 11F13209DWM is affirmed in part and denied in part; IT IS FURTHER ORDERED that within 15 days of the effective date of the final Order issued in this matter, Loma Catalina Co. shall pay a civil penalty of $300.00 to the Department of Weights and Measures for the violation found in Docket Number 11F-13209-DWM. 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, March 18, 2011.

/s/ Thomas Shedden Thomas Shedden 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