ALJDEC decisions subject to certification as final

14F-16825-DWM · Department of Weights and Measures · 2014-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 7, 2014

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

WITNESSES: Shannon Bell, DWM Investigator

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

UT Inc. dba AM/PM (“Licensee”) appeals from a Notice of Violation issued by the Arizona Department of Weights and Measures (“Department”) based on a finding that one of Licensee’s gasoline pumps at a location in Scottsdale, Arizona was not in compliance with several technical requirements. The Department seeks to impose civil penalties for the violations. Licensee failed to appear at the hearing. The Department presented evidence at the hearing, including Department’s Exhibits 1 and 2, and testimony from the witness noted above. Based upon the evidence, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order that the Notice of Violation be enforced as it is written. FINDINGS OF FACT 1. Licensee operates a gas station in Arizona. 2. Based on a consumer complaint, DWM Investigator Shannon Bell was assigned to investigate one of Licensee’s gasoline pumps on January 22, 2014.[1] Bell performed the inspection and found that Pump #2 at the location had three violations: a meter jump, a meter creep, and a minus volume violation. “Meter jump” means that the meter starts at a number other than zero before gasoline is dispensed. “Meter creep” means that the meter continues to move after gas has stopped pumping. And “minus volume” means that the amount that comes out of the pump is less than the amount shown on the meter (the volume of gas given is less than shown on the meter), which effectively charges the consumer for gas that is not delivered by the pump. Because Pump #2 dispensed three different octane levels of gasoline, the Department applied the minus volume violation for the pump to each octane as a separate violation. 3. Investigator Bell testified about his findings at the hearing and confirmed that the violations were present. Bell’s testing found that Pump #2 was out of compliance for minus volume by more than double the allowable tolerance.[2] 4. The Department issued a Notice of Violation on February 7, 2014, for the violations found at the January 22, 2014 inspection.[3] The minus volume violation normally carries a $300.00 civil penalty for each of the three octanes. However, the penalty for minus volume in this case was doubled to $600.00 for each octane under Department rules because it was more than twice the allowable tolerance. 5. As noted, Licensee did not appear and contest the evidence. CONCLUSIONS OF LAW 1. The Department may impose a civil penalty for violation of any provision regulating the taxi business.[4] 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.”[5] 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”).[6] Handbook 44 requires that these devices, including gas pumps, operate correctly and meet certain tolerances.[7] Those specifications and tolerances are used by the Department to assess the proper functioning of pumps that are inspected. 3. The Department’s investigation in this matter revealed violations of the technical standards that are required by law. These violations are bases for civil penalties.[8] 4. The Department has authority to impose civil penalties for violations 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 a base penalty of $300.00 for the violations. 4. A.R.S. § 41-2115(B)(1) allows that the $300.00 civil penalty may be doubled for the minus volume violation found in this case. That statute allows the Director to double a civil penalty when a device violates technical requirements in favor of a retailer by more than twice the allowable tolerance. The facts show that such a condition existed with Pump #2. 5. Whether or not to impose civil penalties and under what circumstances to impose them is within the discretion of the Department. 6. The Administrative Law Judge finds that the evidence supports the violations and civil penalties as follows: (1) meter jump, $300.00; (2) meter creep, $300; and (3) three minus volume violations, ($1,800.00-- $600.00 times 3). The double civil penalty for minus volume is within the Department’s authority to asses. The total civil penalties is $2,400.00. 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.

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 19, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

Kevin Tyne , Director Arizona Department of Weights and Measures ----------------------- [1] Exhibit 1. [2] Bell testified that the allowable minus volume tolerance is -7 and that Pump #2’s minus volume reading was -22. [3] Exhibit 2. [4] A.R.S. § 41-2115(A). [5] 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). [6] A.R.S. § 41-2064. [7] Tolerances are stated in Handbook 44 at I-9 (G-T). The requirement to perform accurately is stated in Handbook 44 at I-11 (G-UR 4.2). [8] 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