PDF copy: ALJDEC decisions subject to certification as final

14F-16624-DWM · Department of Weights and Measures · 2014-07-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of: Nos. 14F-16624-DWM 14F-16625-DWM HOT WOOD, INC. 14F-16626-DWM licensee of the Department of Weights and ADMINISTRATIVE Measures. LAW JUDGE DECISION

HEARING: March 4, 2014

APPEARANCES: Licensee was represented by attorney Barbara Pashkowski, Gust Rosenfeld PLC, who was accompanied by corporate representative Karl Scheifelbein, Manager of Arizona Operations; the State of Arizona, Department of Weights and Measures was represented by Assistant Attorney General Seth Hargraves.

WITNESSES: Debbie Rader, DWM Investigator Robert Molzan, Plant Op. Manager, Canyon Wood Supply Karl Scheifelbein

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Hot Wood, Inc. (“Licensee”) appeals from three Notices of Violation, stop-sale

orders, and impositions of civil penalties issued by the Arizona Department of Weights

and Measures (“Department”) for mislabeling the volume of bundled firewood for sale in

Arizona. The Department seeks a total of $1,500.00 in civil penalties, $500.00 for each

of the three alleged violations. Licensee denies that the bundles were in violation of the applicable standards. The Department presented evidence at the hearing, including Department’s Exhibits 1 through 9, and Licensee’s Exhibits A through F (Exhibits E and F are relevant only to Exhibit A). This tribunal heard 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 recommending dismissal of the Notices of Violation and rescission of the stop-sale orders.

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

1. Licensee prepares and supplies bundles of firewood to retailers for sale in

Arizona. The firewood bundles at issue here are “shrink-wrapped” bundles, meaning

that each one has a band of thin plastic wrapping that is shrunken around the middle of

the bundle of logs that holds the bundle together. These bundles are then sold by

retailers like supermarkets, hardware stores, and elsewhere.

2. On October 31, 2013, DWM Investigators Debbie Rader and Kade Creviston

were assigned a random inspection of firewood for sale at a Safeway store in Tucson,

Arizona.1 Bundles of firewood prepared by Licensee were for sale at that location.

Each bundle was marked as being .7 cubic feet of wood by volume.2

3. The parties agree that the relevant and controlling standard in this case is

found in NIST Handbook 133 (2005), published by the National Institute for Standards

and Technology. Chapter 3 of that book addresses “Test Procedures – For Packages

Labeled by Volume.” Section 3.18 governs “Bundles and Bags of Firewood.” It will be helpful to recite that section here before addressing the specific facts of this case. Section 3.18 states the following: How is the volume of bundles and bags of firewood measured? Follow the Basic Test Procedure in Section 2.3. Define the inspection lot. Use a Category A sampling plan in the inspection; select a random sample; then use the following test procedure to determine lot compliance. 1. Average area of ends: secure a strap around each end of the bundle or bag of wood to prevent movement during testing and to provide a definite perimeter. Use two or more straps to secure the wood. 2. Set one end of the bundle or bag on tracing paper large enough to cover the end completely. Draw a line around the perimeter of the bundle or bag on the tracing paper.

3. Transfer the tracing paper to a template graduated in square centimeters or square inches. Count the number of square centimeters or square inches that are enclosed within the perimeter line. Estimate Exhibit 1. 2 Exhibit 2. Exhibit 8 contains the best photograph of bundles labeled by Licensee. portions of square centimeters or square inches not completely within the perimeter line to the nearest one-quarter square inch. 4. Repeat this process on the opposite end of the bundle or bag.

5. Calculate the Average Area. Average Area = (Area 1 + Area 2) ÷ 2

6. Average length of the pieces of wood: select the five pieces with the greatest girth and measure the length of the pieces. Calculate the average length of the pieces of wood: Average Length = (L1 + L2 + L3 + L4 + L5) ÷ 5

7. Calculate Volume:

Volume in liters = (Average Area [cm2] x Average Length [cm]) ÷ 1 000 Volume in cubic feet = (Average Area [in2] x Average Length [in]) ÷ 1 728

Evaluation of Results

Follow the procedures in Chapter 2, Section 2.3., Evaluating Results to determine lot conformance.

Note: Specified in Table 2-10., Appendix A, maximum allowable variations for individual packages are not applied to packages of firewood.

This is the procedure that both parties agree should be used to determine volume by cubic feet for each of the sample bundles. 4. Rader described the process that she used to measure the volume of wood for the bundles. First, she used a sampling method that will not be described here because Licensee does not object to that part of the process used by the Department. After determining her sampling, she and Creviston placed each sample bundle on its end on large graph paper (with square inches marked) and traced the shape of the end of the bundle onto the paper. They then turned the bundle over and traced the other end. They traced the ends of the bundles exactly as they appeared (with all nooks and

indentations).3 They did not use binding straps when doing this. Rader testified that binding straps were not needed because the bundles were packaged tightly and the wood was not loose. After tracing the ends of the bundle, they used the graphing

paper to calculate the average area of the ends of the bundles (per the mathematical

formula above). They then measured the lengths of five pieces of wood to calculate the

average length of the pieces of wood in the bundle. Finally, they used those

measurements to calculate the volume in cubic feet.4

5. The results of the calculations did not meet the labeled volume for the

bundles. According to the measurements obtained by Rader, the bundles did not

contain .7 cubic feet of wood. This is known “short volume.” A stop sale order was

issued and the wood was set aside so that it would not be sold.5

6. On November 13, 2013, Rader and Creviston performed the same random

inspection at an Ace Hardware store in Tucson.6 That store also had Licensee’s wood

bundles for sale. The Investigators obtained similar results showing that the bundles

did not contain the volume of wood that was stated on the labels. Another stop sale

order was issued.7

7. On November 14, 2013, the same inspection with the same results by Rader and Creviston occurred at a different Safeway store in Tucson.8 A third stop sale order was issued.9 8. On December 11, 2013, the Department issued three Notices of Violation for failing to comply with requirements for packaging and labeling firewood.10 They also imposed civil penalties of $500.00 for each violation. 9. Robert Molzan and Karl Scheifelbein testified for Licensee about the proper way to measure the volume of the bundled firewood. According to them, two binding straps are to be placed around the bundles at each end, and then the tracing is to 3 Exhibit B. Exhibit 1. Id. Exhibit 4. Id. 8 Exhibit 7. Id.

occur around the straps so that it forms a mostly circular shape. In this method, the indentations would not affect the measurement because the strap would go across any voids, resulting in a mostly round shape. Scheifelbein performed his own

measurements of the same bundles a few days after Rader and Creviston, and found

that they did indeed come to .7 cubic feet by volume.11

10. Rader testified that she had been taught to use the straps only when

needed to secure the bundle, not for tracing a smoother circle. She testified that the

purpose of the straps was to secure the wood. Be that as it may, the governing

standard is NIST Handbook 133, Section 3.18, which provides the process for

measurement and calculation of volume of firewood bundles.

CONCLUSIONS OF LAW

1. The Department regulates the use of commercial devices in this State.12

“Commercial devices” are defined by statute to include weight scales.13 The

Department may impose a civil penalty for violation of any provision relating to commercial devices.14 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.”15 Therefore, the Department bears the burden of showing, by a preponderance of evidence, that Licensee has violated the law regulating the labeling of firewood in Arizona. Due to its flawed method of measurement, the Department has not met that burden. 2. A seller of a commodity is prohibited from selling less than the quantity represented.16 For standards of packaging and labeling, the Department has adopted

Exhibits 3, 6, and 9. Exhibits C and D. A few of the bundles could not be measured because they had been destroyed during the interim. A.R.S. § 41-2111. A.R.S. § 41-2051(7). A.R.S. § 41-2115(A). 15 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). 16 A.R.S. § 41-2081(A). NIST Handbooks 130 and 133.17 As noted above, Section 3.18 of NIST Handbook 133 is applicable to this case. The first two steps of the process, as stated in pertinent part in Section 3.18, are:

1. Average area of ends: secure a strap around each end of the bundle or bag of wood to prevent movement during testing and to provide a definite perimeter. Use two or more straps to secure the wood.

2. Set one end of the bundle or bag on tracing paper large enough to cover the end completely. Draw a line around the perimeter of the bundle or bag on the tracing paper. (Emphasis added.)

The first step mentions two reasons for using the straps: (1) preventing movement

during testing, and (2) providing a definite perimeter. The second step requires

drawing a line around the perimeter. Clearly, the second step refers to the perimeter

that was established with the straps in step one. Thus, the straps are not used only for

securing the bundles. They are also used to establish a smooth perimeter to draw around. This is confirmed by the requirement to use two straps instead of only one or two. It would seem that one strap around many bundles could secure them. Yet, two straps, one on each end, are required by Section 3.18. 3. The Administrative Law Judge finds Rader’s failure to use the straps and draw around them a flaw that invalidates the measurements she obtained. Thus, the factual bases for the stop orders, Notices of Violation, and civil penalties are flawed because the measurements they are based upon are not accurate. Thus, those orders must be dismissed. 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 Notices of Violation for these matters, rescind the stop sale orders, and assess no civil penalties. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the A.A.C. R20-2-302(A) (adopting NIST Handbook 133 as the standard for measuring packages); A.A.C. R20-2-101(15) (defining “Handbook 133” as the 2005 edition of NIST Handbook 133). effective date of the Order will be 5 days from the date of that certification.

Done this day, March 24, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

Kevin Tyne , Director Arizona Department of Weights and Measures