ALJDEC decisions subject to certification as final

14F-16827-DWM · Department of Weights and Measures · 2014-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 9, 2014

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

WITNESSES: Kade Creviston, DWM Investigator

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Arizona Cordwood (“Licensee”) appeals from a Notice of Violation issued by the Arizona Department of Weights and Measures (“Department”) based on findings that Licensee was out of compliance with packaging and labeling requirements. The Department seeks to impose civil penalties for the alleged violations. Licensee requested a hearing, but failed to appear. The Department put its evidence into the record unopposed. The Department had its Investigator testify at the hearing and Department Exhibits 1 and 2 were admitted. 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 Notice of Violation. FINDINGS OF FACT 1. Licensee sells firewood in Arizona. As such, Licensee is subject to regulation by the Department. 2. In November 2013, Departmental Investigator Kade Creviston performed a scheduled inspection of Licensee’s place of business.[1] He found natural firewood bundles for sale in various sizes and amounts. The business was set up so that customers were to drive in and self-load whatever amount of wood they wanted to buy. Some of the wood was packaged in unlabeled burlaps bags and some in unlabeled metal racks, which Licensee called “slots,” of two different sizes: small and large. None of these packages were labeled on or near the bundles. Licensee had a “price sheet” inside its building. The price sheet provides prices for various types and amounts of wood. Creviston found six violations based on the lack of appropriate labeling on or near the bundles and based on the use of the term “slots.”[2] 3. The Department issued a Notice of Violation on February 7, 2014, finding Licensee in violation of A.R.S. § 41-2081 and other Departmental rules.[3] 4. Licensee requested a hearing but did not appear. The Department’s evidence is uncontested. 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 statutes cited in the Notice of Violation. The Department has met that burden. 2. The Notice of Violation cites A.R.S. § 41-2081 and Departmental rules A.A.C. R20-2-104(H) and A.A.C. R20-2-302, which establish requirements for packaging and labeling of commodities and incorporate by reference National Institute of Standards and Technology (NIST) Handbook 130 (hereinafter “Handbook 130”). Handbook 130, in relevant sections, requires that natural firewood be labeled and sold only by measure using the term “cord” or giving measurement by cubic meter.[6] Specifically prohibited is the use of terms like “rack” and “truckload.”[7] Licensee’s use of the term “slots” falls within that prohibition. 3. The evidence shows that Licensee has committed the six violations charged in the Notice of Violation. 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. Here, the Department has imposed penalties of $500.00 each for failure to properly label its commodities for sale. These penalties total $3,000.00. 5. The Administrative Law Judge finds the penalties to be appropriate and recommends that they be imposed on Licensee. 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 Arizona Cordwood has committed the violations cited in the Notice of Violation and impose civil penalties totaling $3,000.00, as stated in the Notice of Violation.

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, July 29, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

Shawn Marquez , Acting Director Arizona Department of Weights and Measures ----------------------- [1] Exhibit 1. [2] Id. [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] Handbook 130 at 113-14 (Uniform Regulation for the Method of Sale of Commodities, Section 2: Non-Food Products, 2.4 Fireplace and Stove Wood). “Cord” is defined at 2.4.1.2. [7] Id. at 114 (2.4.4).

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