ALJDEC decisions subject to certification as final

14F-16224-DWM · Department of Weights and Measures · 2013-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 2013

APPEARANCES: Licensee failed to appear; the State of Arizona, Department of Weights and Measures was represented by Assistant Attorney General Michael Raine.

WITNESSES: Lloyd Austin, DWM Investigator Glynn Myers, DWM Investigator

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Power Gas and Food Mart (“Licensee”) appeals from several Notices of Violation issued by the Arizona Department of Weights and Measures (“Department”) based on findings that Licensee was out of compliance for several of its gasoline pumps. The Department seeks to impose civil penalties for the violations. Licensee requested a hearing, but failed to appear. The Department put its evidence into the record unopposed. In addition, on August 16, 2013, the Department withdrew the Notice of Violation for OAH Docket No. 13F-16070-DWM (Departmental Case No. 13F- 16070DWM) because it was a duplication of the Notice of Hearing for OAH Docket No. 14F-16224-DWM. Based on the withdrawal, no hearing was held for OAH Docket No. 13F-16070-DWM and it is recommended below that the case be closed with no action. The hearing held on October 21, 2013, related only to the other consolidated docket numbers listed above. The Department had its Investigators testify at the hearing. Based upon the evidence, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order that the Director uphold and enforce the Notices of Violation. FINDINGS OF FACT 1. Licensee operates a gas station in Arizona. 2. Based on a consumer complaint, DWM Investigator Lloyd Austin was assigned to investigate “meter creep” on a gas pump at Licensee’s station.[1] He went to the location on December 12, 2012, and tested the pump. He explained at the hearing that meter creep occurs when the price and volume meters on the pump keep moving after the nozzle has been shut off and gas is no longer coming out of the nozzle. There is no technical tolerance for meter creep; it must not happen in any amount. He found meter creep on Pump #9 at Licensee’s station, documented it, and informed the cashier/manager that was on duty.[2] The pump was tagged as out of order. 3. The Department issued a Notice of Violation (14F16224DWM) on July 5, 2013, for the meter creep found at the December 12, 2012 inspection, imposing a $300.00 civil penalty for the one violation.[3] 4. On January 23, 2013, Austin inspected Licensee’s gas station again, this time as a routine inspection that is performed every three years. This inspection looked at every pump in the station.[4] Austin found meter creep on pumps #11 and #13; he found that pump #9 was still tagged from his last inspection; and he found that pump #13 also had a “minus volume” violation.[5] He explained that minus volume means that the amount that comes out of the pump is less than that amount shown on the meter (the volume of gas given does not match the meter), effectively charging the consumer for gas that is not given by the pump. There is a technical tolerance for minus volume, but pump #13 was outside of that tolerance. Again, the cashier/manager on duty was informed about the violations.[6] 5. The Department issued a Notice of Violation (13F16071DWM) on May 6, 2013, for two meter creep violations and one minus volume violation found at the January 23, 2013 inspection, imposing a $300.00 civil penalty for each of the three violations.[7] 6. On February 20, 2013, DWM Investigator Glynn Myers performed a follow-up inspection at Licensee’s gas station.[8] He found that pump #13 had been repaired but continued to have a minus volume violation.[9] He documented his findings and informed the cashier/manager on duty. 7. The Department issued a Notice of Violation (13F15845DWM) on February 21, 2013, for the one minus volume violation found at the February 20, 2013 inspection, imposing a $300.00 civil penalty for the violation.[10] 8. At hearing, Investigators Austin and Myers testified in support of their investigative findings. Licensee failed to appear and, therefore, provided no evidence. CONCLUSIONS OF LAW 1. The Department may impose a civil penalty for violation of any provision regulating the taxi business.[11] 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.”[12] Therefore, the Department bears the burden of showing, by a preponderance of evidence, that Licensee has violated the law regulating fuel dispensing. The Department has met that burden. 2. Arizona law requires that motor fuel dispenser devices meet specifications, tolerances, and technical requirements for commercial devices that are referenced in National Institute of Standards and Technology (NIST) Handbook 44 (hereinafter “Handbook 44”).[13] Handbook 44 requires that these devices, including gas pumps, meet certain tolerances. Those tolerances were used by the Department to assess the proper functioning of the pumps at issue on the relevant dates above. 3. The Department’s investigation revealed violations of the technical standards that are required by law. This is a basis for civil penalties.[14] 4. The Administrative Law Judge finds that the $300.00 civil penalties per violation is required by A.A.C. R20-2-104(F)(10) for the violations found in this case. 5. In summary, the Department has shown that Licensee failed to meet technical and legal requirements for its gas pump devices on the dates of inspection noted above. This is the basis for five violations found on the three dates at issue. Therefore, civil penalties in the total amount of $1,500.00 are 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 these appeals and uphold the Notices of Violation for Departmental Case Nos. 14F16224DWM (violation date 12/12/2012), 13F16071DWM (violation date 1/23/2013), and 13F15845DWM (violation date 2/20/2013) as well as the civil penalties assessed therein. IT IS FURTHER RECOMMENDED that Departmental Case No. 13F16070DWM be closed with no action.

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, October 22, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

Kevin Tyne , Director Arizona Department of Weights and Measures ----------------------- [1] Exhibit 2. [2] Exhibit 3 and 4. [3] Exhibit 1. [4] Exhibit 6. [5] Exhibit 7. [6] Exhibit 8. [7] Exhibit 5. [8] Exhibit 10. [9] Exhibits 11 and 13. [10] Exhibit 9. [11] A.R.S. § 41-2115(A). [12] 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). [13] A.R.S. § 41-2064. [14] A.R.S. § 41-2115(A).

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