ALJDEC decisions subject to certification as final

13F-15623-DWM · Department of Weights and Measures · 2013-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2013 APPEARANCES: Stanford D. Collins appeared personally. The Arizona Department of Weights and Measures was represented by Assistant Attorney General Marc H. Harris. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ The Arizona Department of Weights and Measures (“Department”) issued a Notice of Violation to Sanford D. Collins that assessed a total civil penalty in the amount of $2,500.00. Mr. Collins requested a hearing. The Department forwarded Mr. Collins’ appeal to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. On December 7, 2012, a Phoenix police officer was dispatched to a Wal- Mart parking lot located at 1607 W. Bethany Home Road, Phoenix, Arizona. A telephone call to the Phoenix Police Department stated that an illegal taxi was operating at the store. 2. Upon arriving at the store, the police officer observed Mr. Collins standing on the passenger side of a 1987 Chevrolet Celebrity with signage indicating that the vehicle was a taxi. Jennifer Westerfield was sitting in the driver’s seat. There was a male passenger getting into the back seat of the vehicle. 3. The police officer observed the following regarding the vehicle: (i) The word “Taxi” was present on the back of the vehicle; (ii) The vehicle did not have a license plate indicating that it was a taxi; (iii) A taxi sticker was not present on the lower right side of the vehicle’s rear window; (iv) There was no signage on the exterior or interior of the vehicle showing rates; (v) and there was no meter inside the vehicle. 4. The police officer asked the passenger in the back seat of the vehicle if he was getting a taxi. The man indicated that he was. The officer advised the man that the vehicle was not a valid taxi. The man exited the vehicle, retrieved his items from the vehicle’s trunk and left the scene. 5. The police officer spoke to Roberto Bernal, a taxi driver. Mr. Bernal stated to the officer that he had observed Mr. Collins soliciting taxi rides at the entrance to the store and that he overheard Mr. Collins negotiate with the passenger found in the backseat of the vehicle for a fare of $8.00 for a taxi ride. 6. Mr. Collins informed the police officer that he was giving rides for free and that he was not operating a taxi. 7. Mr. Collins produced a non-commercial proof of insurance card for the vehicle. However, he could not produce a commercial proof of insurance card. 8. The police officer detained Mr. Collins’ vehicle and contacted the Department’s Senior Investigator, J.J. Stroh, who arrived at the scene. 9. Upon his arrival, Mr. Stroh explained the Regulatory Bill of Rights to Mr. Collins, who acknowledged in writing that he had been informed of his rights.[1] Mr. Stroh performed a Taxi Cab Inspection at the scene.

10. Mr. Stroh observed the following signage on the vehicle: (i) “623-202- 0705 STANFORD TAXI” on the vehicle’s right side doors; (ii) “STANFORD TAXI” on the vehicle’s driver’s door; and (iii) ”TAXI” on the vehicle’s rear trunk. 11. Inside the vehicle, Mr. Stroh noticed the following: (i) No driver’s identification card posted; (ii) No interior posted rates; and (iii) No taxi meter. 12. The exterior of the vehicle did not have rates posted or a taxi license plate. 13. As a result of his investigation, Mr. Stroh determined that Mr. Collins had committed the following infractions: (i) Operating a taxi without being licensed by the Department; (ii) No taxi license plate on the vehicle; (iii) No taxi insurance for the vehicle; (iv) No rates posted in the interior or exterior of the vehicle; (v) No driver identification posted inside the vehicle; and (vi) No taxi meter in the vehicle. Mr. Stroh also determined that Mr. Collins was a repeat violator. Mr. Collins’ first offense of operating an unlicensed taxi was in 2010. 14. On December 14, 2012, the Department issued Mr. Collins a Notice of Violation ordering Mr. Collins to pay a fine in the amount of $2,500.00 for the following violations: 41-2115(A,E) Civil penalties, 41-2111(A,E) Unlawful use of device, authorization to prevent such use, seizure, violation, classification, 41-2096(A, B, C) Taxi and Livery Vehicle Signage, 41-2113(B.4) Violation, classification, jurisdiction, 41-2091(C, K) Licensing devices used for commercial purposes, authorization to test devices used for all other purposes, fees, certification, transaction privilege tax license records, notification. Plate #ALV7915 (which is not a valid plate # for a vehicle operating as a taxi) ($500) was not licensed with the Department of Weights and Measures ($300), it did not have the proper insurance according to Motor Vehicle Division ($500), it did not have the proper interior rates posted ($300), it [did] not have the proper exterior rates posted ($300), the required Driver ID was not posted ($300) and it did not have the required taxi meter ($300).

15. At hearing, Mr. Collins testified that he had not been operating a taxi service on December 7, 2012, but rather was “selling his image” and conducting “coming soon” business advertising. However, Mr. Collins’ testimony is deemed not credible given the totality of the evidence of record. 16. The weight of credible evidence supports a finding that Mr. Collins was operating a taxi service on December 7, 2012. Mr. Bernal overheard Mr. Collins negotiate a fare with the said passenger. The said passenger admitted to the police officer that he was a passenger for a fare. CONCLUSIONS OF LAW 1. The Department bears the burden of persuasion. See A.R.S. § 41- 1092.07(G)(3). The standard of proof is that of a preponderance of the evidence. See 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 at 1182 (6th ed. 1990). 3. A person who violates A.R.S. Title 41, Chapter 15, any rule of the Department, or any license requirement is subject to a civil penalty not to exceed $500.00 per violation. See A.R.S. § 41-2115. 4. The preponderance of the evidence shows that on December 7, 2012, Mr. Collins was operating a vehicle as a taxi at a time when the vehicle was not licensed with the Department as a taxi, Mr. Collins did not have the insurance required for taxis, and Mr. Collins’ vehicle had a license plate that was not appropriate for a taxi, all of which are violations of the licensure requirements set out in A.R.S. § 41-2091. 5. The preponderance of the evidence shows that on December 7, 2012, Mr. Collins was operating his vehicle as a taxi and Mr. Collins’ vehicle did not have a taxi meter as required by A.R.S. § 41-2091(C). 6. The preponderance of the evidence shows that on December 7, 2012, Mr. Collins was operating a vehicle as a taxi and Mr. Collins’ vehicle did not display interior signage that was “[a]ccurately representative of all fares and the fare computation method” as required by A.R.S. § 41- 2096(A). 7. The preponderance of the evidence shows that on December 7, 2012, Mr. Collins was operating a vehicle as a taxi and Mr. Collins’ vehicle did not display interior signage containing the driver’s name as required by A.R.S. § 41-2096(B). 8. The preponderance of the evidence shows that on December 7, 2012, Mr. Collins was operating a vehicle as a taxi and Mr. Collins’ vehicle did not display exterior signage that was “[a]ccurately representative of all fares and the fare computation method” as required by A.R.S. § 41- 2096(C). 9. The preponderance of evidence shows that on December 7, 2012, Mr. Collins was operating a vehicle as a taxi without licensure in violation of A.R.S. § 41-2113(B)(4).[2] 10. The evidence of record supports the conclusion that Mr. Collins violated the provisions of A.R.S. § 41-2111(A) by operating an unlicensed taxi after receiving notice of the licensing requirements from the Department when he engaged in similar activity in 2010.[3] 11. The evidence of record does not support a conclusion that Mr. Collins violated the provisions of A.R.S. § 41-2111(E).[4] That statute applies to a licensed commercial device, which is not applicable in this case. 12. The Department may impose a civil penalty for each infraction by Mr. Collins in this matter pursuant to A.R.S. § 41-2115(A).[5] The civil penalties proposed by the Department against Mr. Collins are supported by the evidence of record.[6] RECOMMENDED ORDER IT IS ORDERED that Stanford D. Collins shall pay to the Department a civil penalty in the total amount of $2,500.00 within thirty days of the effective date of the Order entered in Civil Penalty # 13F15623DWM.

In the event of the certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be five days from the date of the certification.

Done this day, March 4, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Kevin Tyne, Director Arizona Department of Weights and Measures ----------------------- [1] See Exhibit 1 at 3. [2] A.R.S. § 41-2113(B)(4) provides that “[a] person is guilty of a class 2 misdemeanor who: . . . [k]eeps for the purpose of selling, advertising or offering or exposing for sale or sells any commodity, thing or service in a condition or manner contrary to law or rule.”

[3] A.R.S. § 41-2111(A) provides as follows:

When any commercial device specified in this chapter is in commercial use and a valid license for the device has not been procured by the owner, the owner's agent or the operator of the device, the department, after giving notice of the licensing requirements to the owner, the owner's agent or the operator, shall prohibit the further commercial use of the unlicensed device until the proper license has been issued. The department may employ and attach to the device such forms, notices or security seals as it considers necessary to prevent the continued unauthorized use of the device. [4] A.R.S. § 41-2111(E) provides as follows: “If a commercial device licensed pursuant to this chapter is used contrary to any provision of this chapter or any rule adopted pursuant to this chapter, the department, in addition to any other penalty imposed by this chapter, shall suspend, revoke or refuse to renew the license.” [5] A.R.S. § 41-2115(A) provides as follows: A person who violates this chapter, any rule of the department or any license requirement is subject to a civil penalty imposed by the director. A person who violates this chapter, any rule of the department or any license requirement may request a hearing to review a civil penalty imposed under this section. The department shall conduct the hearing in accordance with chapter 6, article 10 of this title. Except as prescribed in subsection B of this section, the civil penalty shall not exceed one thousand dollars for each infraction nor more than ten thousand dollars for any thirty day period at each business location, for each registered service representative or for each public weighmaster, provided that no person shall be assessed more than fifty thousand dollars per thirty day period. [6] See Exhibit 2 at 2. The Department’s proposed total civil penalty in the amount of $2,500.00 is broken down per infraction on page 2 of the Notice of Violation.

-----------------------

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