ALJDEC decisions subject to certification as final

12F-14319-DWM · Department of Weights and Measures · 2012-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 31, 2012

APPEARANCES: Marc Harris, Assistant Attorney General representing the Department of Weights and Measures; David Whitney, owner of Cahill, Inc., dba MS Transportation; Raul Jordan and Deborah Rader, Department witnesses

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ The Arizona Department of Weights and Measures issued two Notices of Violation based on the fact that old stickers and ads were on two cars and the company had a history of using for-hire vehicles. This was not sufficient to establish that the cars were currently used to carry paying passengers because no suspicious activity was observed, commercial insurance may be appropriate for a number of reasons not related to for- hire transportation, and there is no requirement that old stickers or ads must be removed. Therefore, it is recommended that this appeal be sustained and that the Notices of Violation be reversed. FINDINGS OF FACT 1. The Arizona Department of Weights and Measures (“DWM”) issued two Notices of Violation to Cahill, Inc., doing business as MS Transportation (“Licensee”). The October 21, 2011 Notice of Violation informed Licensee that a civil penalty of $1,000.00 was proposed for Licensee’s vehicle, license plate #653WCP, for lack of a current DWM license and lack of a current DWM decal. The November 25, 2011 Notice of Violation informed Licensee that a civil penalty of $500.00 was proposed for Licensee’s vehicle, license plate #CF30802, for lack of a DWM license and lack of proper insurance. 2. Licensee appealed both Notices of Violation. In response, a hearing was set with the Office of Administrative Hearings, an independent agency conducting hearings in contested matters arising out of State regulation. 3. At the hearing, DWM offered the testimony of two DWM Investigators, who both testified that they observed two vehicles and noted that they had DWM decals and signage stating “MS. Transportation Group & Individual Transportation 520-327-4674 www.gomstransport.com” on them. (Exhibit 5, page 6, is a photo of one of the cars.) Although the Investigators did not speak to the drivers, they both followed up by checking Licensee’s current information in the DWM database. Both investigators testified that they did not see either car carrying or waiting for fares, but they concluded that the cars were for hire because they were advertising, they were owned by a company with a history of transporting passengers for hire, and one had commercial insurance and commercial license plates. 4. Licensee’s owner, David Whitney, testified that Cahill, Inc. owns several cars and does more types of business than transportation of passengers for hire, though the business still includes some of that. He stated that some of his cars are no longer used to carry passengers, though they are still used in the business and they still carry ads. He denied that the un-photographed vehicle had such an ad. He said that the two cars at issue are not available to carry passengers for hire. Mr. Whitney also stated that he is an insurance agent and he writes the insurance for his own vehicles. He said that commercial insurance is not much more expensive than private insurance, and he bought commercial insurance for one car because it had commercial plates and he thought commercial plates should have commercial insurance. He said the car was being used by a courier, not for-hire transportation. Mr. Whitney acknowledged that he had not removed the stickers. He said he was not aware that he was required to do so. 5. DWM acknowledged that there is no statute or rule that requires a licensee to notify DWM when taking a vehicle out of the business of being for hire or to remove the stickers, but it claimed that licensees are verbally advised to do so. DWM also acknowledged that not all commercial license plates are required to have DWM licenses. CONCLUSIONS OF LAW 1. DWM has jurisdiction over this matter pursuant to A.R.S. §§ 41- 2115 and 41-1092.01 et seq. 2. Pursuant to A.R.S. § 41-2115(A), DWM has the authority to impose civil penalties of up to $500.00 for each violation of the statutes governing the regulation of DWM licensees. 3. Pursuant to A.R.S. § 41-2091(M), taxis must have a license issued by DWM. A.R.S. § 41-2111(A) provides that for-hire vehicles must be licensed by DWM and DWM is authorized to employ the use of seals to prevent continued use of a vehicle operating in violation of the statute. A.R.S. § 41-2111(E) provides that DWM may suspend, revoke or refuse to renew the license of a licensee who violates the provisions of the DWM licensing statutes or the associated rules. 4. The greater weight of the evidence in this matter did not establish that the two cars at issue were being used as for-hire vehicles. They were not observed carrying, cruising for and waiting for passengers, and there is no prohibition against having commercial insurance or leaving old stickers, ads or decals on a car that has been used as a for-hire vehicle. Although a reasonable person may find that carrying commercial insurance and failing to remove old stickers is evidence that the driver might be for hire, these are not activities that only a for-hire vehicle would engage in. Although it may ultimately be found that the cars were for hire, more evidence is needed to come to that conclusion. Therefore, it is recommended that the Notices of Violation in this matter be reversed.

RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Licensee’s appeal be granted and that the two Notices of Violation at issue in this case be reversed.

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 is the date of certification.

Done this day, February 9, 2012.

/s/ Dorinda M. Lang 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