ALJDEC decisions subject to certification as final

14F-17275-DWM · Department of Weights and Measures · 2014-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2014 APPEARANCES: John Foster appeared on behalf of Licensee Elite VIP Shuttle III. The Department of Weights and Measures was represented by Assistant Attorney General Seth T. Hargraves. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ Elite VIP Shuttle III (“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 livery vehicle requirements. The Department seeks to impose a civil penalty for the alleged violation. Licensee requested a hearing and appeared by telephone. 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 Licensee is licensed by the Department as a livery service company. As such, Licensee is subject to regulation by the Department. On or about June 24, 2014, the Department received a complaint that Licensee was operating a livery vehicle with license plate number CJ02352 (“Vehicle”) that was not licensed with the Department. The complaint indicated that the Vehicle was seen by the complainant on the road picking up and dropping off customers in and around the Lake Havasu City area. On or about June 25, 2014, an inquiry with the Motor Vehicle Department indicated that the Vehicle was a 2000 Toyota registered to Licensee with liability insurance only and no commercial insurance. On or about June 26, 2014, the Department contacted Mr. Foster to arrange an inspection of the Vehicle. On or about June 30, 2014, Mr. Foster appeared for an inspection of the Vehicle. When Mr. Foster arrived for the inspection, the Vehicle had signage in the windows indicating it was a livery vehicle. An inquiry with the Motor Vehicle Department on that date indicated that the Vehicle had liability insurance only and no commercial insurance. Mr. Foster went to the Motor Vehicle Department to address the issue with the insurance information. When Mr. Foster returned, the investigator conducted another inquiry with the Motor Vehicle Department that indicated the Vehicle had commercial insurance coverage. On or about July 9, 2014, the Department issued Notice of Violation 15F17275DWM finding Licensee in violation of A.R.S. §§ 41-2091(A), 41- 2091(B), 41-2091(K)(2), and 41-2111(A) as of June 30, 2014.[1] At the time of the hearing, the Department withdrew the alleged violation of A.R.S. § 41-2091(K)(2). During the hearing, Mr. Foster acknowledged that he let friends borrow the Vehicle prior to it being licensed with the Department as a livery vehicle. Mr. Foster indicated the Vehicle was not being operated as a livery vehicle during the time in question. Mr. Foster stated there was some signage on the Vehicle that would indicate it was a livery vehicle while it was in use, but that it was covered when he lent the Vehicle to his friends. Mr. Foster testified that at some point during the evening one of the coverings had been removed by accident and the signage was showing. Mr. Foster maintained that there was no financial incentive for him to not license the Vehicle as a livery vehicle as there was no additional cost, but the delay was due merely to the schedule of the Department staff who could conduct inspections. CONCLUSIONS OF LAW The Department may impose a civil penalty for violation of any provision regulating the livery service business.[2] 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.”[3] Therefore, the Department bears the burden of showing, by a preponderance of evidence, that Licensee has violated the statutes cited in the Notices of Violation. The Department has met that burden. The Notice of Violation cites A.R.S. § 41-2091(A), a provision that requires livery vehicles to be licensed by the Department. While Licensee testified that the Vehicle was not being operated as a livery vehicle, the visible signage would give that impression to the public. As such, the evidence shows that Licensee’s Vehicle was operating as a livery vehicle without a license from the Department. The evidence shows that Licensee committed one violation charged in the Notice of Violation. 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 imposed a penalty of $500.00 for the failure to have the livery vehicle licensed by the Department. The Administrative Law Judge finds the penalty is not appropriate and recommends that the penalty be reduced to $250.00. 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 Elite VIP Shuttle III committed the violation cited in the Notice of Violation and impose a civil penalty, in a total amount of $250.00. 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, September 19, 2014.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Shawn Marquez, Acting Director Arizona Department of Weights and Measures ----------------------- [1] Exhibit 2. [2] A.R.S. § 41-2115(A). [3] 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).

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