ALJDEC decisions subject to certification as final

11F-13222-DWM · Department of Weights and Measures · 2011-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 2011 APPEARANCES: Assistant Attorney General Keely Verstagen on behalf of the Arizona Department of Weights and Measures; James Witherspoon for Disco Cab ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal __________________________________________________________________ No. 11F-13222-DWM

FINDINGS OF FACT 1. At 2:14 a.m. on December 6, 2010, Investigator James J. Stroh (“Investigator Stroh”), an investigator with the Arizona Department of Weights and Measures (“Department”), was on duty at a DUI (driving under the influence) check point in Mesa, Arizona along with employees from multiple agencies. 2. Investigator Stroh inspected taxis to ensure that when people were released to taxis to go home, the taxis were properly licensed with the Department and their license plates and insurance were current. 3. One of the taxis that Investigator Stroh inspected was a taxi owned by Disco Cab and driven by Justin. Investigator Stroh testified that the taxi (Vehicle”) was lined up with other taxis waiting for fares. Although Justin provided Investigator Stroh registration for the Vehicle, he did not provide to Investigator Stroh any insurance documents relating to the Vehicle. 4. Investigator Stroh provided Disco Cab with the Department’s Regulatory Bill of Rights and cited Justin. 5. Investigator Stroh obtained the license plate number of the Vehicle, 4ZL104, a taxi license plate, 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 registered with the Department as a taxi, the Vehicle was licensed with DMV, and did not have commercial insurance. 6. Investigator Stroh testified that a taxi licensed with the Department is required to have commercial insurance in effect. 7. Investigator Stroh found that the Vehicle did not have commercial insurance while it was operating as a taxi on December 6, 2010. 8. On January 11, 2011, the Department issued a Notice of Violation to Disco Cab alleging violations of A.R.S. §§ 41-2091 and 41-2111 and assessed a civil penalty of $500.00. 9. Investigator Stroh was not involved in the Department’s determination regarding the amount of civil penalty to be imposed. However, he testified that the Department considers the prior license history in determining the amount of civil penalty to be imposed. According to Investigator Stroh, when there has been a prior violation that has occurred within the past 18- months, the Department considers a second violation of a licensee as cause to impose a $500.00 civil penalty and referred to A.A.C. R20-2-104(B) as the authority for such action. 10. James Witherspoon (“Mr. Witherspoon”), the owner of Disco Cab, testified that he previously had parked the Vehicle in front of his home and that his Homeowner’s Association had taken action against him for having commercial vehicles parked in front of his home in violation of its rules. 11. Mr. Witherspoon canceled commercial insurance on the Vehicle and placed personal liability insurance on it. He arranged to have it parked in the back of Justin’s home. 12. According to Mr. Witherspoon, the Vehicle was not to be driven on the street as a taxi, but acknowledged that he did not inform Justin that the Vehicle did not have commercial insurance and was not to be on the street. 13. Mr. Witherspoon acknowledged that on December 6, 2010, the Vehicle was a taxi and it was wrong for the Vehicle to be driven on the street without commercial insurance. APPLICABLE LAW 1. A commercial device is not to be used by a person unless it is licensed or certified. See A.R.S. § 41-2091(A) 2. A.R.S. § 41-2091(L) provides: The department shall revoke a license if the taxi, livery vehicle or limousine fails to maintain the requirements for either of the following: 1. Motor vehicle licensing as prescribed by the department of transportation. 2. Motor vehicle insurance as prescribed by section 28-4033.

3. The term “commercial device" is defined 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.” 41-2051(7)

4. A.A.C. R20-2-104(F)(10)(a)(i) and (ii) provides: In addition to any enforcement action under subsections (F)(1) through (F)(9): a. 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 this Chapter and the lack of compliance favors the owner or operator of the commercial device: i. The Department shall impose a $300 civil penalty on the person who owns or operates the commercial device; and ii. The Department shall impose a $500 civil penalty on the person who owns or operates the commercial device for each reinspection until the commercial device is in compliance. 1. Motor vehicle licensing as prescribed by the department of transportation. 2. Motor vehicle insurance as prescribed by section 28-4033.

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 taxis 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 proved by a preponderance of the evidence that Respondent violated A.R.S. § 41-2091(A) by the Vehicle not having commercial insurance while the Vehicle was on the street as a taxi on December 6, 2010. 4. The Department sought the imposition of a $500.00 civil penalty for the above-mentioned violation, considering it a second violation by Disco Cab. However, A.A.C. R 20-2-104(F)(10) provides for the imposition of $300.00 civil penalty for a violation upon inspection and a $500.00 civil penalty for a violation upon reinspection. There was no credible evidence presented that established that the violation at issue was the result of a reinspection. Consequently, pursuant to A.A.C. R20-2-104(F)(10), the appropriate penalty to be imposed against Disco Cab is $300.00. ORDER Based on the above, Respondent shall pay a $300.00 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.

No. 11F-13286-DWM

FINDINGS OF FACT 1. On the evening of January 7, 2011, Investigator James J. Stroh (“Investigator Stroh”), an investigator with the Arizona Department of Weights and Measures (“Department”), was at home and answered a telephone call made by Scottsdale Police concerning a taxi with license plate, 4ZP798, (“Vehicle ”) issued to Disco Cab (“Disco Cab”). Scottsdale Police had detained the Vehicle at a traffic stop. At that time, the Vehicle was driven by George, a former employee of Disco Cab. 2. Scottsdale Police requested that Investigator Stroh determine if the Vehicle was a taxi licensed by the Department and verify the documents that had been provided to the Scottsdale Police Officer. The Scottsdale Police provided Investigator Stroh with pertinent information contained in the documents. 3. Investigator Stroh obtained the license plate number of Vehicle, a taxi license plate, and the name on the Vehicle from the Scottsdale Police and ran them through the Division of Motor Vehicles’ (“DMV”) database and the Department's database. 4. Investigator Stroh found that the Vehicle was registered with the Department as a taxi, the Vehicle was licensed with DMV, and it did not have commercial insurance. Investigator Stroh reported his findings to the Scottsdale Police and requested that the Vehicle be cited and that the license plates be impounded to deter further driving of the Vehicle on the street. 5. Investigator Stroh mailed Disco Cab the Department’s Regulatory Bill of Rights and issued to Disco Cab an Administrative Stop Use Order with respect to the Vehicle. 6. Investigator Stroh testified that a taxi licensed with the Department is required to have commercial insurance in effect. 7. Investigator Stroh found that the Vehicle did not have commercial insurance while it was on street as a taxi. 8. On February 1, 2011, 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. However, he testified that the Department considers the prior license history in determining the amount of civil penalty to be imposed. According to Investigator Stroh, when there has been a prior violation that has occurred within the past 18-24 months the Department considers a second violation of a licensee as cause to impose a $500.00 civil penalty and referred to A.A.C. R20-2-104(B) as the authority for such action. 9. James Witherspoon (“Mr. Witherspoon”), the owner of Disco Cab, testified that he previously had parked the Vehicle in front of his home and that his Homeowner’s Association had taken action against him for having commercial vehicles parked in front of his home in violation of its rules. 10. Mr. Witherspoon canceled commercial insurance on the Vehicle and placed personal liability insurance on it. He arranged to have the Vehicle parked at a George’s residential parking space. According to Mr. Witherspoon, the Vehicle was not to be driven on the street but George did not own a motor vehicle and used the Vehicle to go to the store when he was stopped by the Scottsdale Police. 11. It was undisputed that at the time of the traffic stop, the Vehicle had signage and the appearance of being a taxi and had taxi license plates. 12. Mr. Witherspoon acknowledged that on January 7, 2011, the Vehicle was a taxi and it was wrong for the Vehicle to be driven on the street without commercial insurance. APPLICABLE LAW 1. A commercial device is not to be used by a person unless it is licensed or certified. See A.R.S. § 41-2091(A) 2. A.R.S. § 41-2091(L) provides: The department shall revoke a license if the taxi, livery vehicle or limousine fails to maintain the requirements for either of the following: 1. Motor vehicle licensing as prescribed by the department of transportation. 2. Motor vehicle insurance as prescribed by section 28-4033.

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 taxis 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 proved by a preponderance of the evidence that Respondent violated A.R.S. § 41-2091(A) by not having the Vehicle licensed by the Department and not having commercial insurance while the Vehicle was operating as a taxi. 4. The Department sought the imposition of a $500.00 civil penalty for the above-mentioned violation, considering it a second violation by Disco Cab. However, A.A.C. R 20-2-104(F)(10) provides for the imposition of $300.00 civil penalty for a violation upon inspection and a $500.00 civil penalty for a violation upon reinspection. There was no credible evidence presented that established that the violation at issue was the result of a reinspection. Consequently, pursuant to A.A.C. R20-2-104(F)(10), the appropriate penalty to be imposed against Disco Cab is $300.00. ORDER Based on the above, Respondent shall pay a $300.00 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, April 26, 2011.

/s/ Lewis D. Kowal Administrative Law Judge

Transmitted electronically to:

Kevin Tyne, 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