ALJDEC decisions subject to certification as final

14F-16273-DWM · Department of Weights and Measures · 2013-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 11, 2013

APPEARANCES: Licensee appeared through CEO Chad Christensen; the State of Arizona, Department of Weights and Measures was represented by Assistant Attorney General Michael Raine.

WITNESSES: Raul Jordan, DWM Investigator Chad Christensen

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Gentle Care Transport, Inc. (“Licensee”) appeals from a Notice of Violation issued by the Arizona Department of Weights and Measures (“Department”) based on Licensee’s failure to appear for a scheduled vehicle inspection. The Department seeks a total of $6,000.00 in civil penalties ($500 per vehicle for twelve vehicles). Licensee disputes the allegations. The parties presented evidence at the hearing, including Department’s Exhibits 2 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 no violation and, in the alternative, that the proposed penalty is excessive. FINDINGS OF FACT 1. Licensee is licensed by the Department to operate a livery company. Licensee operates in 10 rural counties in Arizona. Licensee performs non-emergency transports for Medicaid patients to and from medical appointments. As such, Licensee is subject to regulation by the Department. 2. All taxi, livery, and limousine vehicles in Arizona are required to renew their licenses with the Department annually by June 1.[1] The Department’s website explains the renewal process for doing this in three steps: (1) Submit Application; (2) Vehicle Inspection Appointment; and (3) Get Your License. For the last part of step (1), the website states, “Once your Application has been received, AZDWM will review and process [sic] (if the documents are complete) then set-up [sic] a day for your Vehicle Inspection Appointment.” For the start of step (2), the website states, “AZDWM will contact you to set-up [sic] the Vehicle Inspection Appointment.” Later, it states: “Failure to appear for your scheduled appointment will result in a civil penalty (A.R.S. § 41-2115).” 3. Also on the web page, there is a list of “satellite inspection locations” for Yuma, San Luis, and Flagstaff. This statement follows that list: If you would like to be [sic] have your inspection conducted at a satellite location, submit a completed application to the Department. Once your Application has been received, AZDWM will review and process [sic] (if the documents are complete) then set-up a Vehicle Inspection Appointment (time and location). All inspections are scheduled based on order of submission and space is limited.

4. On June 3, 2013, the following email exchanges took place between Licensee and the Department: [Licensee]: Just wanted to follow up and see what times you have available to inspect our remaining vehicles.

[Department]: Tuesday June 11 at 6:30 am. Please let me know how many vehicles so I can determine your time slot.

[Licensee]: It looks like we have 25 left, based on the list that you emailed. . . . They are all in the general area of Tucson. It would be really nice if we could split them up between two mornings. . . .

[Department]: I scheduled for June 11, from 6:30 to 9:00 am for 12 vehicles and I also will schedule 6-17-13, from 8:30 to 10:00 am for vehicles. Please email me a list of vehicles for each day.

[Licensee]: That sounds great. I will get you a list of vehicles either the end of this week or first thing next week. It’s hard to know what our schedule will be like a week in advance, but we will have 12 vehicles there the 11th and 13 the 17th.[2]

The parties stipulated that on June 11, 2013, twelve of Licensee’s vehicles were inspected. 5. On June 17, 2013, DWM Investigator Raul Jordan was ready at 8:30 am to perform an inspection of the other vehicles at an inspection site in Tucson.[3] When no one had appeared for inspection after a length of time, he called Licensee’s office and left a message. Licensee’s office responded by telephone at 8:51 AM and, according to Jordan, stated that Licensee had thought the inspection was for the next day. Licensee scrambled around at that point and was able to get one of the thirteen vehicles over to the inspection on that day. 6. On July 17, 2013, the Department issued a Notice of Violation stating the following: “Company failed to show or call to cancel 12 appointments for licensing vehicles on June 17, 2013 ($500 x 12 vehicles).” The Notice of Violation imposed $6,000.00 in civil penalties and cited A.R.S. § 41-2113 as the basis for the twelve violations. 7. At hearing on October 11, 2013, Licensee’s CEO Chad Christensen credibly testified that Licensee was not able to do the scheduling necessary to get the vehicles routed from the rural counties to the inspection site in Tucson that day. Licensee did not file the pre- inspection documents for the thirteen vehicles ahead of time and believed that because of that failure to file the documents, the inspection would not proceed and the Department would be on notice that Licensee was not going to appear. Christensen testified that Licensee was following the process given on the website. 8. The Department put evidence into the record about prior instances wherein Licensee did not appear for a scheduled inspection.[4] Those instances did not result in any finding of violation (or even a warning letter) and there is no indication that Licensee was given notice that those instances would be at issue on October 11, 2013. In addition, none of those instances is like the one here. In one prior instance, Licensee called and canceled the appointment. In the others, half of the vehicles showed for inspection and others did not. Moreover, Christensen testified credibly that there have been occasions in which Licensee’s vehicles were present at the appointed time and the Department’s personnel was not. 9. The Administrative Law Judge does not find any of the prior history information to be material or of sufficient weight for consideration in this matter. CONCLUSIONS OF LAW 1. The Department may impose a civil penalty for violation of any provision regulating the taxi business.[5] 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.”[6] Therefore, the Department bears the burden of showing, by a preponderance of evidence, that Licensee has violated the statutes cited in the Notice of Violation. The Department has not met that burden. 2. A.R.S. § 41-2113(A)(1) declares a class 1 misdemeanor when a person “[k]nowingly hinders, interferes with or obstructs in any way the director or any of the director's agents or inspectors in entering the premises where a commercial device may be kept for inspecting or testing or in the performance of the director's or the director's agent's or inspector's official duties.” The Department argues that this statute has been violated by Licensee’s conduct described above when it failed to appear with twelve of the thirteen vehicles on June 17, 2013. In order to evaluate the Department’s argument, the statute must be properly construed. 3. The statute prohibits knowingly hindering, interfering with, or obstructing in any way either of two of the agency’s activities: (1) entering premises to inspect or test a commercial device, or (2) the performance of official duties. There is no question that vehicle inspections performed by the Department are part of its official duties. Therefore, licensees are not allowed by law to knowingly hinder, interfere with, or obstruct those inspections in any way. 4. The terms “hinder,” “interfere with,” and “obstruct” are not defined by the statute. Therefore, according to A.R.S. § 1-213, they “shall be construed according to the common and approved use of the language.” Because the violation of the statute is a misdemeanor, it is a penal statute that “shall be construed according to the fair import of [its] terms, with a view to effect [its] object and promote justice.”[7] 5. The term “knowingly,” however, is defined in statute. It “imports only a knowledge that the facts exist that bring the act or omission within the provisions of the statute using such word” and “does not require any knowledge of the unlawfulness of the act or omission.”[8] This means that a person must have knowledge that they are acting in a way that is within the description in the statute, but does not require that they know that what they are doing is illegal. For example, if riding a bicycle on a nature trail is illegal, a person would knowingly do so as long as the person knows that he is riding a bike on a nature trail. He is not required to know that it is prohibited by law. 6. When construing a statute, the primary goal is to ascertain the legislature’s intent.[9] This is accomplished by first looking to the text of the statute.[10] If the language is clear, its plain meaning is ascribed, unless it would lead to absurd results.[11] If ambiguity exists, secondary principles of statutory construction are used to determine the intent.[12] The Administrative Law Judge does not find A.R.S. § 41- 2113(A)(1) to be ambiguous. Therefore, it is to be given its plain meaning. 7. “Hinder” means “to make slow or difficult the progress of,” to “hamper,” to “hold back.”[13] “Interfere” means “to interpose in a way that hinders or impedes.”[14] “Obstruct” means “to block or close up by an obstacle” and “to hinder from passage, action, or operation.”[15] “Hinder,” interfere,” and “obstruct” are synonymous according to standard thesauruses.[16] 8. For the purposes of the facts before the tribunal in this matter, the Administrative Law Judge finds that the statute prohibits knowingly preventing, hindering, or interfering with an inspection. 9. The facts found above do not show that Licensee knowingly hindered an inspection. The communication between Licensee and the Department was not as clear as the Department suggests. Licensee’s statements in the June 4 emails indicate that it was difficult for them to know their schedule the week before the next. Also, there seems to be an understanding between the parties that a list of vehicles is needed before the inspection occurs. This implies that if no list is given, the inspection is will not follow. Finally, there is no clear confirmation from the Department of the inspection dates. The last communication from Licensee states that Licensee will send vehicle lists and will have the vehicles there, but that it is hard to know the schedule that far in advance.[17] This raises the possibility that something unanticipated may happen that would call for a change of plans. 10. In addition to the lack of clear confirmation about the firmness of the appointment, the Department has not shown that it was following the process outlined on the website by declaring that Licensee’s documentation was complete before setting up an inspection. If the Department wants to hold Licensee to the process, it must follow it as well. 11. The Administrative Law Judge finds Licensee’s explanation for why the vehicles were not present for the inspection to be a reasonable mistake, attributable to miscommunication between the Department and Licensee. Therefore, Licensee did not knowingly hinder, interfere with, or obstruct the Department’s inspection. 12. Although this Decision concludes that there is no violation, the Administrative Law Judge will address the reasonableness of the civil penalty imposed, in the event that the Director rejects that conclusion. 13. 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. Here, the Department has imposed penalties of $500.00 for each of the twelve violations. This totals $6,000.00 in civil penalties. 14. The Department has given no reason why $500 is appropriate in this case, rather than $50 or $100 per violation. The Department has presented no reason for choosing that amount over any other amount. As such, the Department’s $500 amount is found to be arbitrary. Rather, $100 per violation is found to be more reasonable, given the available range and the circumstances described above. There are several mitigating factors. The communication between the parties was not clear and the appointment not clearly confirmed by the Department after Licensee’s last email. Neither is there any evidence showing intent to inconvenience the Department by not showing at the inspection. $500 per violation in these circumstances is excessive. RECOMMENDED ORDER Based on the above findings and conclusions, IT IS RECOMMENDED that the Director of the Arizona Department of Weights and Measures dismiss the Notice of Violation issued to Gentle Care Transport, Inc, in case 14F16273DWM.

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 25, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

Kevin Tyne , Director Arizona Department of Weights and Measures ----------------------- [1] Exhibit 6. [2] Exhibit 3. [3] Exhibit 4. [4] Exhibit 5. [5] A.R.S. § 41-2113(A). [6] 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). [7] A.R.S. § 1-211(C). [8] A.R.S. § 1-215(17). [9] State ex rel. Thomas v. Contes, 515 Ariz. Adv. Rep. 29, 30, 169 P.3d 115, *** (Oct. 25, 2007). [10] Id. [11] Id.; Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991). [12] Contes, 515 Ariz. Adv. Rep. at 30. [13] Merriam-Webster’s Collegiate Dictionary 588 (11th ed. 2004). [14] Id. at 652. See also Black’s Law Dictionary 831 (Bryan A. Garner ed., 8th ed. West 2004) (“interference” means an obstruction or hindrance). [15] Merriam-Webster’s Collegiate Dictionary at 857. [16] E.g. Roget’s College Thesaurus 225-26 (Philip D. Morehead ed., New American Library 1978) and http://thesaurus.com/browse/hinder (accessed October 24, 2013). [17] And that last communication was 13 days prior to the inspection appointment.

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