ALJDEC decisions subject to certification as final

11F-13264-DWM · Department of Weights and Measures · 2011-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 31, 2011

APPEARANCES: Marc H. Harris, Assistant Attorney General representing the Department of Weights and Measures; J. Blake Mayes, Attorney for the Licensee; Eric Braren, Owner of the Licensee

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ The Department of Weights and Measures (“DWM”) issued a notice to AZ Chauffeur A.K.A. Forged Strength, LLC, (“Licensee”) notifying the Licensee it was imposing a $500.00 civil penalty pursuant to A.R.S. § 41-2115 for violating A.R.S. § 41-2096 and 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. On December 31, 2010, J.J. Stroh, Investigator for DWM received a call from the Scottsdale Police Department informing him that a cab was cruising a Scottsdale business area with Nevada license plates. Mr. Stroh found the vehicle stopped in traffic outside of a restaurant. He engaged with the driver, Eric Braren, the owner of the Licensee. 2. During the stop, Mr. Stroh noted that the vehicle had magnetic signs on the outside of it stating the name, price and phone number of the Licensee. Mr. Braren produced a DWM license, but it was for another vehicle. He stated to Mr. Stroh that his car was in the shop and that he had rented this vehicle. 3. Mr. Stroh did an inspection of the vehicle and found numerous violations of the statutes governing vehicles for hire. He found the Licensee did not have in-state license plates, a DWM license for the vehicle being used, commercial insurance (the vehicle in question had only liability insurance), or interior signage, all of which are required by Arizona statute for all for-hire vehicles. 4. Mr. Braren stated at the time that he was only advertising for the Licensee; however, Mr. Stroh found that he was using the vehicle as a for-hire vehicle because he was parked in traffic outside of a restaurant,[1] the vehicle carried signage that would lead a reasonable person to believe it was for hire, and it was already parked in traffic (as if waiting for a fare) when he approached it. 5. Mr. Stroh cited the Licensee with four violations. On January 24, 2011, DWM issued a Notice of Violation to the Licensee. Although the Notice of Violation made reference to the four violations, it proposed only a civil penalty of $500.00. Mr. Stroh testified that DWM was only basing the civil penalty on the Licensee’s failure to carry interior signage in the vehicle. 6. Mr. Braren appeared at hearing and testified that he was not taking fares that night. He had rented the vehicle, a large SUV, in order to drive around with the magnetic signs and advertise for the Licensee. Meanwhile, he stated, his wife was driving the licensed vehicle. He stated that when someone called the Licensee, he could send his wife to pick them up or, if she was busy, he could coordinate a ride with another cab company and earn a referral fee. He said that he could earn a lot of money doing referrals, but he did not know how many calls he received as a result of his advertising idea. He said he had the signs made for the SUV and that was the first and only night he used them. 7. Mr. Stroh testified on rebuttal that the signs, which he impounded, were in good but used condition. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Director of DWM pursuant to A.R.S. §§ 41-2115 and 41-1092 et seq. A.R.S. § 41-2091 authorizes DWM to license, inspect and test for-hire vehicles. 2. Pursuant to A.R.S. § 41-2111(E), if a DWM licensee uses a commercial device (such as a for-hire vehicle) contrary to any provision of that chapter or any rule adopter pursuant to it, DWM shall suspend, revoke or refuse to renew the license in addition to any other penalty imposed by that chapter. 3. A.R.S. § 41-2115(A) provides that anyone violating that chapter, any rule of DWM or any licensing requirement is subject to a civil penalty. It further provides that, except as provided in subsection B (not applicable), the civil penalty shall not exceed $1,000.00 for each infraction. 4. A.R.S. § 41-2096(A) requires taxis and livery vehicles to display interior signage with the licensee’s business name, address and fares. A.R.S. § 41-2051(12) defines a livery vehicle as follows:

17. "Livery vehicle" means a motor vehicle that: (a) Has a seating capacity not exceeding fifteen passengers, including the driver. (b) Provides passenger services for a fare determined by a flat rate or flat hourly rate between geographic zones or within a geographic area. (c) Is available for hire on an exclusive or shared ride basis. (d) May do any of the following: (i) Operate on a regular route or between specified places. (ii) Offer prearranged ground transportation service as defined in section 28-141. (iii) Offer on demand ground transportation service pursuant to a contract with a public airport, licensed business entity or organization.

5. The standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). As the agency proposing to take action against an existing licensee, DWM has the burden of proof. 6. In this case, DWM has established by the greater weight of the credible evidence that Mr. Braren was using his rented vehicle as a livery vehicle. It was not disputed that the vehicle had fewer than 15 seats. The only disputed issue was whether it was being used to carry fares. 7. Mr. Braren’s testimony that he was only using the vehicle for advertising was not believable because his actions were not consistent with his story in many ways. While he claimed that it was very lucrative to rent a large SUV without using it to transport fares, he acknowledged that he did not know how much business this advertising plan had brought him. It was not believable that he carried his original DWM license in the vehicle in case someone doubted his status as a licensed company because, according to him, he was only going to be driving around in it taking calls from customers who saw his signs, whereupon he would refer them to his wife or someone else. Most likely, any customers wanting to see a DWM license could more easily ask for it from the vehicle that came to pick them up. Mr. Braren was driving the vehicle in a crowded commercial area. He was parked in traffic as if to pick of a fare, and his signs were such that potential fares would think the vehicle was available for hire. In fact, a group of potential fares left the restaurant and headed to the vehicle as if they knew it was there waiting for them while Mr. Stroh was conducting his investigation. Although Mr. Braren stated to Mr. Stroh during the stop that his car was in the repair shop, he stated at hearing that it was his private vehicle that was in the shop and his wife was driving the DWM licensed for-hire vehicle. On the other hand, he also stated that he never uses the magnetic signs for his private vehicle because the colors do not match. If that were true, however, there would be no reason for bringing up the fact that his car was in the shop during the stop. The only logical connection between a car in a repair shop and the scenario presented to Mr. Stroh on December 31st was the excuse for using the SUV that night. If it was being used as advertising only, the only reason to mention that the other car was in the shop was to state that the car he usually advertised in was not available, so it does not fit that the colors don’t match, and that is why he does not use his own car to advertise. If he was using the SUV to carry fares, it does make sense that he would say, on the spot, that he was in a jam because his licensed vehicle was not available to him on New Year’s Eve, likely one of the most lucrative nights of the year for a livery vehicle. Moreover, Mr. Braren’s claim that he had the magnetic signs made for the rented SUV and never used them before or since that night was not credible in light of Mr. Stroh’s testimony that they were in good condition, but definitely used. Mr. Stroh is an official with no stake in the outcome of the hearing, and his testimony was consistent while Mr. Braren’s was not. Therefore, Mr. Stroh’s testimony must be accounted more credibility. 8. Since it was established that Mr. Braren was using the vehicle as a livery vehicle, and since it was not disputed that the vehicle had no interior signage, DWM established that the Licensee was in violation of A.R.S. § 41-2096(A) and DWM has the authority to impose a $1,000.00 civil penalty against the Licensee for that violation. Here, DWM has determined that it wishes to encourage compliance with its rules and statutes by temporarily lowering the amount of its civil penalties to $500.00 and by reducing the number of violations against the Licensee. Therefore, it is recommended that the $500.00 civil penalty be sustained. 9. It was also undisputed that the vehicle was not licensed in the State of Arizona, that it did not have a DWM license specific to the vehicle, and that it did not have commercial insurance. However, since DWM made the determination to enforce only one violation, it is unnecessary to establish additional violations against the Licensee in order to sustain DWM’s Notice of Violation.

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 for a violation of A.R.S. § 41- 2096(A) by the Licensee. Done this day, April 6, 2011.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Kevin Tyne, Director Arizona Department of Weights and Measures ----------------------- [1] In fact, a group of people came out of the restaurant during the stop and headed toward the vehicle, but Mr. Stroh turned them away.

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