ALJDEC decisions subject to certification as final

12F-14182-DWM · Department of Weights and Measures · 2012-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 16, 2012 APPEARANCES: Assistant Attorney General Ann Froedge on behalf of the Arizona Department of Weights and Measures; Abdideeq Ahmed Hersi on behalf of Ready Cab Co. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. This matter involves an appeal of a civil penalty assessed by the Arizona Department of Weights and Measure (“Department”) against Ready Cab Co. (“Licensee”). 2. Investigator Stroh testified that the Department administratively inspects taxi cabs (“taxis”) to ensure that their commercial insurance is current. 3. On May 4, 2012, an administrative aide with the Department administratively inspected the Licensee. According to the Department’s records, the Licensee is owned by Abdideeq Ahmed Hersi (“Mr. Hersi”) and has five taxi cabs licensed by the Department. 4. J. J. Stroh (“Investigator Stroh”), an investigator with the Department, testified that the Department randomly conducts administrative inspections of taxis. In performing the administrative inspection of the Licensee’s five taxis, the administrative aide ran their license plates through the Division of Motor Vehicles’ (“DMV”) database and the Department's database. The administrative aide found that the Taxis owned by the Licensee had the following license plates issued by the DMV: (i) 4ZJ362; (ii) 4ZJ364; (iii) 4ZJ863; (iv) 4ZL955; and (v) 4ZM047 (Collectively referred to herein as the “Taxis”). The administrative aide found that the Taxis did not have any insurance. 5. At an unspecified date subsequent to May 4, 2011, the administrative aide again ran the license plates through the same databases, and found the same results. 6. About 5 days after the May 4, 2011 administrative inspection, Investigator Stroh conducted an administrative inspection of the Taxis using the same databases. The results of his independent review resulted in the same findings. 7. Investigator Stroh testified that the results of the Department’s inspections of the Taxis showed that on May 4, 2011, and shortly thereafter, the Licensee did not have any insurance in place for the Taxis. 8. Investigator Stroh testified that a taxi licensed with the Department is required to have insurance in effect. 9. According to Investigator Stroh, around the end of May or beginning of June 2011, a Notice of Violation was issued to the Licensee in the amount of $2,500.00 for the Taxis failing to have insurance.[1] The Notice of Violation that was sent to the Licensee alleged violations of A.R.S. §§ 41-2091[2] and 41-2111.[3] 10. Investigator Stroh testified that on August 11, 2011, Mr. Hersi came to the Department with an appeal of the civil penalty but claimed to not have received the Notice of Violation. See Exhibit 3. According to Investigator Stroh, the Department provided Mr. Hersi on that date with a copy of the Notice of Violation. 11. Investigator Stroh testified that on October 24, 2011, Mr. Hersi came to the Department with documents, one of which was a Certificate of Liability Insurance to show the Department that he had insurance on the Taxis. See Exhibit 1. Investigator Stroh further testified that on October 24, 2011, Mr. Hersi again represented that he did not receive the Notice of Violation. A copy of the Notice of Violation was again provided to Mr. Hersi. 12. On October 27, 2011, the Department issued the same Notice of Violation that was issued previously that reflected an issuance date of October 27, 2011. See Exhibit 2. 13. At hearing, the Licensee referred to the Certificate of Liability Insurance (Exhibit 1) showing that four taxis owned by the Licensee had insurance. However, only two of the Taxis with license plates numbered 4ZJ362 and 4ZM047 had insurance that was in effect on May 4, 2011. Investigator Stroh testified that he confirmed that there was insurance on two of the Taxis and that the insurance was the appropriate type of insurance that was required by law. 14. Although the Licensee showed the Department on October 24, 2011, proof of insurance on two of the Taxis, the Department maintained that the records of the DMV did not show that the above-mentioned two taxis had insurance, and the Licensee did not provide such documentation until almost five months after the administrative inspections, even though the Licensee was provided time to provide such documentation to the Department. 15. Investigator Stroh testified that although the Department can issue a civil penalty up to $1,000.00, the Department issues a civil penalty for half that amount, i.e., $500.00 per violation. Investigator Stroh testified that he was not involved in the Department’s determination regarding the amount of civil penalty to be imposed, but he did determine that the Licensee was in violation of the Department’s laws regulating taxis by not having insurance in effect on the Taxis. 16. Mr. Hersi testified that he had insurance on the Taxis and that subsequent to May 4, 2011, he did not own all of the Taxis. Mr. Hersi also testified about vehicles he owned as taxis, that he has sold some of those vehicles after May 4, 2011. The Licensee maintained that it had done nothing wrong and should not have any civil penalty imposed against it. / / / / / /

CONCLUSIONS OF LAW 1. This matter is a disciplinary matter and, as such, the Department must prove by a preponderance of the evidence that the Licensee violated the statutes and rules pertaining to livery 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. A commercial device is not to be used by a person unless it is licensed or certified by the Department. See A.R.S. § 41-2091(A). 4. The term “commercial device" as defined in A.R.S. § 41-2051(7) would include a taxi. 5. The Department proved by a preponderance of the evidence that the Licensee violated A.R.S. § 41-2091(K) by not having insurance on three of the Taxis, namely, those with license plates 4ZJ364, 4ZJ863, and 4ZL955, while they were licensed with the Department as taxis. The weight of the evidence of record established that two of the Taxis, license plates numbered 4ZJ362 and 4ZM047, had the appropriate insurance as of the date of the May 4, 2011 inspection, even though the DMV did not have any record of such insurance being in effect. 6. The Department may impose a civil penalty of up to $1,000.00 per violation. See A.R.S. § 41-2115. 7. The Administrative Law Judge concludes that pursuant to A.R.S. § 41- 2115, the appropriate penalty to be imposed against the Licensee is $1,500.00, $500.00 for 3 violations of law for 3 taxis not having insurance in effect on May 4, 2011. / / / / / / ORDER Based on the above, the Licensee shall pay a $1,500.00 civil penalty to the Department within 30 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, March 1, 2012.

/s/ Lewis D. Kowal Administrative Law Judge

Transmitted electronically to:

Kevin Tyne, Director Arizona Department of Weights and Measures

----------------------- [1] This Notice of Violation was not presented as an exhibit at hearing. [2] Investigator Stroh acknowledged during the hearing that A.R.S. § 41- 2091(L) did not apply to this matter because the Department was not seeking revocation. [3] Investigator Stroh testified that the Notice of Violation contained a typographical error and instead of referring to license plate 4ZL995, the reference should have been made to license plate 4ZL955.

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