ALJDEC - Licensing
23A-0024-BUS · Department of Public Safety - Student Transportation · 2023-05-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Cancellation of the School Bus Driver Certificate of:
Allen F. Thompson
Certificate No. 48794
No. 23A-0024-BUS
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 24, 2023
APPEARANCES: Appellant Allen F. Thompson appeared on his own behalf. The Arizona Department of Public Safety was represented by Assistant Attorney General Kenneth R. Hughes.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Allen F. Thompson (Appellant) was the holder of Arizona School Bus Driver Certificate No. 48794 (Certificate) issued by the Arizona Department of Public Safety (Department).
Appellant was employed as a bus driver with American Leadership Academy.
On or about February 21, 2023, Brenda J. Fernandez, Director of Transportation for American Leadership Academy, informed the Arizona Department of Transportation, of an accident in which Appellant was involved.
The Complaint was forwarded to the Department, and after investigation, the Department issued a Notice of Cancellation on February 23, 2023.
Later that same day, Appellant requested a hearing, and a Notice of Hearing was issued on March 7, 2023, setting a hearing on April 24, 2023 at the Office of Administrative Hearings, an independent State agency.
At hearing, the Department offered the testimony of Kimberly Thomas and submitted nine exhibits into evidence.
Ms. Thomas was the Administrative Supervisor for the Department’s Student Transportation section. Ms. Thomas testified that based upon the video, as well as the incident report, e-mails from Ms. Fernandez, statements from Deborah Ames, and Katherine Martin, and a prior incident report, the Department cancelled Appellant’s certificate for a period of two years.
Ms. Thomas testified further, the Department cancelled Appellant’s certificate because it found that he had violated A.A.C. R13-13-102(K)(1)(a), A.A.C. R13-13-104(E)(1), and A.A.C. R13-13-108(D)(1), as Appellant failed to meet the “Minimum Standards, by failing to immediately report a school bus accident, and failing to conduct a pre-trip inspection of a school bus.
Appellant testified that he was a retired police officer and has spent 26 years driving a bus, the last 16 of which were in Arizona. He testified further that during that time, he never even had been issued a warning.
In addition, Appellant testified that on the date in question, he had to enter the parking lot from a different entrance, and therefore had to make several attempts at maneuvering the bus while parking. He testified that he did not physically feel anything while he was backing up and therefore, believed that he did not hit the other parked bus. Appellant testified however, that because he felt pressure to exit the yard, he did not closely inspect the bus once parked, and completed his post-trip inspection prior to arriving at the yard.
Appellant testified further, that the next morning while he was doing his pre-trip inspection, he did not see the scratches on the bus because it was still dark. When the driver of the other bus noticed scratches on her bus later that day, Appellant then discovered the scratches on his bus, and reported the incident immediately.
Also, Appellant testified that the video did not show an accident, and the words that he mumbled were, “Allen if you keep screwing around, you’re gonna have an accident.”
CONCLUSIONS OF LAW
The Department bears the burden of persuasion. A.R.S. § 41-1092.07(G)(2).
The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119.
A preponderance of the evidence is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).
A.A.C. R13-13-102 provides, in pertinent part, as follows:
K. Denial, cancellation, or suspension of certificate
1. Based on an assessment of the totality of the circumstances, the Department may deny a certificate to an applicant or may cancel or suspend a certificate of a school bus driver for:
a. Failing to meet or comply with the requirements of this Article;
. . . .
The Department shall inform an applicant who is denied a certificate or a school bus driver whose certificate is canceled or suspended of the amount of time that must elapse before the applicant or the school bus driver may reapply for certification. The Department shall include this information in the notice of denial, cancellation, or suspension and the notice of final order, if any, served on the applicant or school bus driver. In determining the amount of time that must elapse before reapplication, the Department shall consider:
a. The seriousness of the offense leading to denial, cancellation, or suspension;
b. The frequency with which the offense occurred; and
c. The amount of time required to correct the offense.
A.A.C. R13-13-104 provides, in pertinent part, as follows:
E. Reports and recordkeeping:
1. Immediately following any accident involving a school bus, the school bus driver shall report the accident to the employer.
. . . .
A.A.C. R13-13-108 provides, in pertinent part, as follows:
D. A school bus driver shall perform the following operations checks and tasks on the school bus:
1. Before a school bus is operated for the first time each day, conduct a pre-trip operations check of the school bus to determine that the following are operational and are not damaged:
. . . .
The evidence established that Appellant had failed to fully conduct the pre-trip inspection. While it was understandable that it may have been dark, Appellant’s experience should have led him to use a flashlight or some other light to properly inspect his bus prior to leaving the yard for his morning route. Therefore, the tribunal finds that Appellant violated A.A.C. R13-13-108(D)(1).
Likewise, had Appellant performed his post-trip inspection at the yard, perhaps the scratches would have been timely discovered. Therefore, the tribunal finds that Appellant violated A.A.C. R13-13-108(E)(1).
Therefore, the Department established grounds under A.A.C. R13-13-102(K)(1)(a) to cancel or suspend Appellant’s Arizona School Bus Certificate. In determining the amount of time that must elapse before reapplication, the Department shall consider: (a) the seriousness of the offense leading to the cancellation; (b) the frequency with which the offense occurred; and (c) the amount of time required to correct the offense. See A.A.C. R13-13-102(K)(5).
The Department has requested a two-year cancellation in this matter. In light of the evidence presented, the tribunal believes this in an excessive and unwarranted penalty. While Appellant acknowledged this neglect in failing to properly inspect the bus for the scratches, this does not justify a two year cancellation. Per the testimony from Appellant, he has already been unable to drive for approximately two months. Thus, the tribunal believes that the Notice of Cancellation shall be rescinded and Appellant be suspended for a total of five (5) months effective March 1, 2023.
Consequently, Appellant’s appeal should be granted in part.
ORDER
IT IS ORDERED that Appellant’s appeal be granted in part. Appellant’s certificate should be suspended March 1, 2023 for a period of five (5) months.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, May 9, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Ken Hunter,
Department of Public Safety - Student Transportation
Kenneth Hughes
[email redacted]
Allen F. Thompson
[email redacted]
By: OAH Staff