ALJDEC decisions subject to certification as final

13F-16186-DWM · Department of Weights and Measures · 2013-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 25, 2013

APPEARANCES: Licensee appeared on his own behalf and was assisted by a court-appointed Spanish language interpreter, Baldo Leon; the State of Arizona, Department of Weights and Measures (“DWM”) was represented by Assistant Attorney General Michael Raine.

WITNESSES: Raul Jordan, DWM Inspector Jose Estrada

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Jose Francisco Estrada dba Uniones Transportes (“Licensee”) appeals from a Notice of Violation issued by the Arizona Department of Weights and Measures (“Department”) based on inspection results for a livery vehicle that revealed three failures to meet statutory requirements. The Department seeks a total of $900 in civil penalties. Licensee challenges the imposition of three violations rather than just one for the whole vehicle, and argues that the penalty is too high. The parties presented evidence at the hearing, including Department’s Exhibits 1 through 6, 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 finding violations and recommending civil penalties in the total amount of $600. FINDINGS OF FACT 1. Licensee is licensed by the Department to operate a livery company. As such, Licensee is subject to regulation by the Department. By Licensee’s testimony, he has only one vehicle. 2. On June 5, 2013, Licensee brought his vehicle to the Department for inspection as a livery vehicle. Department Inspector Raul Jordan inspected the vehicle and found that (1) no driver identification was posted in the interior of the vehicle; (2) business and rate information required by statute was not properly posted in the interior of the vehicle; and (3) there were missing letters and numbers on the vehicle signage.[1] 3. The Department issued a Notice of Violation (“NOV”). The NOV charged Licensee with violating the law regarding taxi and livery vehicle signage requirements, and imposed a $300 civil penalty for each of the three violations noted. 4. At hearing, Licensee testified that he is a sole proprietor small business. He objected to the finding of three violations and asserted that if a vehicle failed inspection it should be allowed to correct its deficiencies before a penalty is imposed and that there should be only one penalty for the whole vehicle. He did not dispute the deficiencies found at the inspection, but disputed the amount of the civil penalties. CONCLUSIONS OF LAW 1. The Department may impose a civil penalty for violation of any provision regulating the taxi and livery business.[2] 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.”[3] Therefore, the Department bears the burden of showing, by a preponderance of evidence, that Licensee has violated the statutes cited in the NOV. The Department has met that burden. 2. The NOV cites A.R.S. § 41-2096, which provides: A. A taxi or livery vehicle shall display interior signage that contains the licensee's business name and address and that is all of the following: 1. Permanent. 2. In letters at least one-half inch in height. 3. Readily visible. 4. Accurately representative of all fares and the fare computation method.

B. A taxi or livery vehicle shall display interior signage that contains the driver's name and is readily visible to passengers.

C. A taxi is required to display exterior signage that contains the licensee's business name and telephone number, that contains the word "taxi" or "cab" and that is all of the following: 1. Permanent. 2. In letters at least three inches in height. 3. Readily visible and a minimum of one inch in height for fare information. 4. Accurately representative of all fares and the fare computation method.

The evidence presented by the Department in this case shows that Licensee’s vehicle did not meet all of these requirements. In particular, Licensee failed to post the driver’s name as required in paragraph (B) of the statute above, failed to post fare information in the interior as required in paragraph (A) of the statute above, and failed to have legible information as required by paragraph (C) above. 3. Licensee’s vehicle did not pass inspection for the three reasons identified by the Department. 4. The Department has authority to impose civil penalties per A.R.S. § 41-2115(A): 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.

This provision allows a penalty of up to $1,000.00 for each violation. 5. The Department has imposed a $300 civil penalty for each violation found at the inspection. Licensee testified that he is a small business with one vehicle that does not do much business, but he did not submit documentation showing the actual income of the business so there is no evidence to support any specific finding about the business’ income. Nevertheless, his testimony is credible as a general statement showing that he is a small business with not much income. The Department clearly has the authority to impose three separate civil penalties, one for each violation, but the amount of the penalty should be related to the business upon which it is imposed. For example, a $300 penalty may not much penalize a large business with a large amount of income. That business may need a higher penalty for a similar violation. On the other hand, $300 per violation may be unfair to a small business. Here, $300 per violation seems a little high for Licensee’s business. Therefore, the Administrative Law Judge recommends a $200 civil penalty for each violation in this case. 6. The evidence supports the violations found by the Department. The Department has full discretion to assess penalties and set an amount that is fair. In this case the Administrative Law Judge recommends a penalty for each violation in the amount of $200, for a total of $600 in civil penalties. RECOMMENDED ORDER Based on the above findings and conclusions, IT IS RECOMMENDED that the Director of the Arizona Department of Weights and Measures find that Jose Francisco Estrada dba Uniones Transportes has committed the violations cited in the Notice of Violation for this case and impose civil penalties of $200 for each violation, in a total amount of $600.00.

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, December 16, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

Kevin Tyne , Director Arizona Department of Weights and Measures ----------------------- [1] Exhibit 2 documents the violations and Exhibit 3 contains photographs of the signage. The photographs show that the name “Transportes Nogales” was exhibited on the exterior of the vehicle rather than the business name on the license, which is a statutory violation that was not cited by the Department. [2] A.R.S. § 41-2115(A). [3] 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).

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