ALJDEC decisions subject to certification as final

13F-15419-DWM · Department of Weights and Measures · 2013-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 10, 2013 APPEARANCES: Licensee failed to appear. The Department of Weights and Measures was represented by Assistant Attorney General Elizabeth Campbell. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. On September 26, 2012, the Arizona Department of Weights and Measures (the Department) inspected a vehicle belonging to Licensee A Team Taxi and Shuttle LLC (A Team Taxi), including the exterior and interior signage and the taxi meter. 2. Inspector Raul Jordan observed that the meter was not properly illuminated. The “Hired,” “Vacant,” “Fare,” and “Extra” lights were not readable and the last digit of the meter had partial digital burn out. Inspector Jordan also observed the lettering on the interior signage with the business name, business address, and rates was less than one- half inch in height. The vehicle was also determined to be over registration because the meter dropped prior to the allowable margin of error. 3. On October 30, 2012, the Department issued a Notice of Violation that alleged A Team Taxi violated A.R.S. § 41-2064 and A.R.S. § 41-2096. 4. The Department assessed a civil penalty against A Team Taxi, pursuant to A.R.S. § 41-2115, in the amount of $1,200.00. 5. A Team Taxi filed an appeal, and the matter was set for hearing. The Department issued a Notice of Hearing setting the above-captioned matter for hearing to be conducted at the Office of Administrative Hearings in Phoenix, Arizona. The Notice of Hearing provided that the issue for hearing was A Team Taxi’s appeal of Notice of Violation No. 13F15419DWM and Notice of Violation No. 13F15420DWM issued to A Team Taxi by the Department. 6. The Department presented the testimony of Investigator Jordan. 7. A Team Taxi did not appear for the requested hearing. 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 an affirmative defense bears the burden of proving the claim or defense. The standard of proof on all issues in this matter is by 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. Meters in taxis are commercial devices that are required to comply with the standards set out in the appropriate and applicable National Institute of Standards and Technology (NIST) Handbook, the 2010 edition. See A.R.S. § 41-2064; A.A.C. R20-2-101(12) – (15). 5. The preponderance of the evidence established that A Team Taxi’s taxi meter did not meet the requisite standards. On September 26, 2012, the meter was not in compliance with respect to the illumination of the meter. Further, on September 26, 2012, the meter dropped prior to 53 feet before the one-mile mark on the standardized track. 6. The preponderance of the evidence established that A Team Taxi’s interior signage did not meet the requisite standards. On September 26, 2012, the lettering on the interior signage referencing the business name, business address, and rates was less than one-half inch in height. 7. Because A Team Taxi’s taxi meter and signage was not in compliance with the applicable requirements, A Team Taxi is subject to a civil penalty of up to $1,000 for each infraction. See A.R.S. § 41-2115. In this case, the Department determined to assess only a $300.00 civil penalty for the determined violations. The Administrative Law Judge concludes that the assessment of a $300.00 civil penalty for the proven violations is reasonable and supported by the evidence of record. Consequently, A Team Taxi’s appeal should be denied and the $1,200.00 civil penalty should be affirmed. ORDER IT IS ORDERED that A Team Taxi’s appeal is denied, and the assessed a $1,200.00 civil penalty must be paid to the Department of Weights and Measures within 15 days of the effective date of the final Order issued 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 five days from the date of that certification. Done this day, January 30, 2013.

/s/ Tammy L. Eigenheer 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