ALJDEC decisions subject to certification as final

13F-15826-DWM · Department of Weights and Measures · 2013-05-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 24, 2013

APPEARANCES: Licensee appeared through its owner MCO, Inc., represented by its President Russ McDowell; the State of Arizona, Department of Weights and Measures was represented by Assistant Attorney General Carrie Smith.

WITNESSES: Lloyd Austin, DWM Investigator Russ McDowell, President of Licensee Devin Sullivan, Registered Service Representative

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

MCO, Inc. dba MCO Petroleum Equipment Service (“Licensee”) appeals from a Notice of Violation issued by the Arizona Department of Weights and Measures (“Department”) based on a finding that Licensee failed to properly test a gasoline pumping station (dispenser). The Department seeks a $900.00 civil penalty ($300 each for three violations). Licensee disputes the penalty. The parties presented evidence at the hearing, including Department’s Exhibits 1 through 9, and testimony from the witnesses noted above. Based upon the evidence, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order that the Director uphold the Notice of Violation. FINDINGS OF FACT 1. Licensee is registered by the Department as a third-party Registered Service Agency that performs testing and repair of vapor recovery systems at commercial gas dispensers. As such, Licensee is subject to regulation by the Department. Devin Sullivan (“Sullivan”) is the Registered Service Representative (“RSR”) that performed the testing in question here. 2. On December 11, 2012, Licensee performed testing of gas pumps at a location in Queen Creek, Arizona. Department Investigator Lloyd Austin (“Austin”) observed the testing and documented the results.[1] He observed, and the documentation shows, that Pump #16 failed an Air to Liquid Ratio (A/L) test on all three grades of gasoline.[2] Licensee immediately repaired and retested the pump, which was then in compliance.[3] 3. Both Sullivan and Austin testified about the A/L testing process for Pump #16. The two testimonies were substantially the same. Sullivan first tested the lowest of the three octane levels (87). The first test revealed an A/L reading of 1.110.[4] This was not within the compliance range of 9.0 to 1.100. Sullivan tested the 87 octane level again. This time the A/L reading was even higher at 1.149. Although Sullivan knew that he could test a third time and average the scores to see if the average was in compliance—and that if the three scores averaged to within the range then the pump would be in compliance—he chose not to do so, stating that in his experience he would not get a third reading that would result in compliance. He determined that the A/L test had failed and moved on to testing the next highest octane level. That test (for octane level 89) revealed a score of 1.114, again out of compliance. He did not perform any further tests on that octane level, again stating that in his experience he knew there was a problem with the dispenser that would make all subsequent tests fail unless he made a repair. His test on the highest octane level (91) revealed another failure with a score of 1.107. He did no further tests. He repaired the dispenser and made his report. 4. Austin testified that, according to a Department-issued Standard Operating Procedure (“SOP”) document, the proper and required process for A/L testing as done by Sullivan is to run three tests and average the scores to check compliance. The Department submitted a portion of the SOP, entitled “Vapor Recovery Annual Test for Vacuum Assist and Balance Systems, No. VPR305.”[5] The pages submitted are pages 11 and 12 of 13 and contain section 11 of the document, concerning A/L testing. That section contains subsections addressing the RSR’s responsibilities, the State Investigator’s responsibilities, and the State Investigator’s requirements for documentation. At the end of section 11, the following note appears: Note: If a nozzle is not within the allowable air to liquid ratio, with average of 3 drafts, blue tag the nozzle and issue a Stop Sale/Stop Use Order (DWM 53).[6]

Austin testified that this “3 test average “process requires that if the initial results show a failure, the tester must then perform two more tests and average the scores to see if there is compliance in the averaged score.[7] This was not the process followed by Licensee. He also testified that it is possible for one level of octane to fail and another to pass. 5. It was brought out at the hearing that Pump #16 has one hose and one vacuum motor for all three grades of gas. This means that the same equipment dispenses all three grades. CONCLUSIONS OF LAW 1. The Department may impose a civil penalty for violation of any provision regulating the taxi business.[8] The Department has the burden of showing a violation that warrants a civil penalty. The standard of proof is “preponderance of the evidence,” meaning evidence showing that a particular fact is “more probable than not.”[9] Therefore, the Department bears the burden of showing, by a preponderance of evidence, that Licensee has violated the law regulating taxis. The Department has met that burden. 2. Departmental rule A.A.C. R20-2-104(M)(2) provides that the Department shall impose a $300.00 civil penalty on a RSR who incorrectly tests a vapor recovery system. The Department has presented sufficient evidence that Licensee did not follow the appropriate procedure because Licensee failed to perform three tests on each grade, after the first test failed, to see if the averages came into compliance. 3. Licensee objects to the civil penalty on two grounds: (a) that the failure to perform the subsequent tests was reasonable because it was a futile gesture and the test scores were not going to get better; and (b) there is only one violation, if any, because only one vapor recovery system, that being the whole system at the gas station, was tested. The Administrative Law Judge rejects both of these arguments. 4. First, the vapor recovery system that was being tested during the failure to follow the proscribed process was that for Pump #16. Second, even though Sullivan testified that his experience informed him that the tests were going to continue to fail, that outcome is not certain. Indeed, the scores continued to drop on the subsequent tests. Licensee is not given authority to deviate from the procedure based on its own discretion. This tribunal presumes a good reason for the proscribed process, even if such reason was not presented at the hearing. If Licensee wants the process changed to allow for discretion on the part of the tester, this is not the appropriate forum to seek such a change. 5. With regard to the three separate penalties for the three separate octane levels, the SOP at issue here clearly contemplates separate testing for each grade of gasoline.[10] Again, the Administrative Law Judge presumes a good reason for this. Thus, Licensee is required to follow the SOP to the letter, whether it makes sense to Licensee or not. And since Licensee failed to follow the procedure for each of the three grades of gasoline, there is cause for the Department to treat each failure as a separate violation. 6. In summary, the Department has shown that Licensee failed to correctly test each grade of gasoline on Pump #16 for the testing done by Licensee on December 11, 2012. The applicable rule mandates a $300.00 civil penalty for such violations. Licensee repeated the violation for each grade of gasoline. Thus, a total of $900.00 for the civil penalty is warranted. RECOMMENDED ORDER Based on the above findings and conclusions, IT IS RECOMMENDED that the Director of the Arizona Department of Weights and Measures deny this appeal and uphold the Notice of Violation 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, May 14, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

Kevin Tyne , Director Arizona Department of Weights and Measures ----------------------- [1] Exhibit 1. [2] Exhibit 6. [3] Exhibit 7. [4] Sullivan testified about this number, as it is not documented in Exhibit 6. [5] Part of Exhibit 10. [6] Even though the SOP document in Exhibit 10 is dated “4/5/2013,” Austin testified that the “3 test average rule” has been in effect for many years and was in effect at the time of the tests in question here. Licensee did not dispute that statement. [7] Some confusion was caused during the hearing because Austin testified at times that the second and third tests were optional and also testified at other times that they were mandatory. [8] A.R.S. § 41-2115(A). [9] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996); In the Matter of the Appeal in Maricopa County Juvenile Action No. J- 84984, 138 Ariz. 282, 283, 674 P.2d 836, 837 (1983). [10] “Each time you move the roots meter to a different grade or dispenser, dispense 1 gallon of gasoline to reset gears. Then record new starting point/value for A/L test.” Exhibit 10.

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