                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                 STANFORD COLLINS, Plaintiff/Appellant,

                                        v.

      ARIZONA DEPARTMENT OF WEIGHTS AND MEASURES,
                    Defendant/Appellee.

                             No. 1 CA-CV 13-0733
                              FILED 12-11-2014


           Appeal from the Superior Court in Maricopa County
                        No. LC2013-000300-001
               The Honorable Crane McClennen, Judge

                                  AFFIRMED


                                   COUNSEL

Stanford D. Collins, Phoenix
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michael Raine
Counsel for Defendant/Appellee
                           COLLINS v. AZDWM
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.


J O N E S, Judge:

¶1             Appellant Stanford Collins appeals the superior court’s
judgment affirming the decision of an administrative law judge (ALJ),
which found Collins: (1) operated a taxi without a license; (2) failed to
obtain and use taxi license plates; (3) failed to maintain commercial
insurance on a taxi; (4) failed to post fare rates inside or outside a taxi;
(5) failed to post driver identification in a taxi; and (6) failed to obtain and
use a taxi meter, all in violation of Arizona law regulating operation of a
livery vehicle. Collins’ sole argument on appeal is that insufficient evidence
supports the ALJ’s finding that he was operating a taxi. For the following
reasons, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2             In December 2012, the Phoenix Police Department received a
report of an illegal taxi operating outside the Wal-Mart at 16th Avenue and
Bethany Home Road. Another taxi driver reportedly saw Collins soliciting
rides at the entrance of the Wal-Mart, and heard him negotiate with a
prospective passenger regarding the price of a ride.

¶3            Upon arrival, the officer found Collins standing on the
passenger side of a 1987 Chevrolet Celebrity sedan marked with the word
“taxi” on the back, while a man climbed into the back seat. The officer did
not observe a license plate indicating the vehicle was a taxi, a “taxi” sticker
on the vehicle’s rear window, signage on the vehicle’s exterior or interior
containing rates, or a meter.

¶4         The officer asked the man if he was getting into a taxi, and
when he answered in the affirmative, the officer advised that the vehicle



1      When reviewing an administrative decision, we view the evidence
in the light most favorable to upholding the decision of the ALJ. Special
Fund Div. v. Indus. Comm’n, 182 Ariz. 341, 346, 897 P.2d 643, 648 (App. 1994).


                                       2
                            COLLINS v. AZDWM
                            Decision of the Court

was not a valid taxi. The man removed his belongings from the vehicle’s
trunk and left the scene.

¶5            When requested, Collins was unable to provide the officer
with proof of commercial insurance. He explained to the officer that he was
not operating a taxi, but was giving rides for free.

¶6            An investigator from the Arizona Department of Weights and
Measures (DWM), who was called to the scene, informed Collins of his
rights under the Regulatory Bill of Rights, and performed a taxi cab
inspection. The investigator observed the words “STANFORD TAXI” and
“TAXI” on the rear and both sides of the vehicle’s exterior. However, there
was no taxi license plate or fare rates on the exterior. Additionally, there
was no driver’s identification or rates posted inside the vehicle; nor did the
investigator observe a taxi meter.

¶7            Based upon its investigation, DWM issued a Notice of
Violation to Collins, which found numerous violations of state law and
assessed civil penalties as follows: (1) $300 penalty for operating a taxi
without a license, in violation of Arizona Revised Statutes (A.R.S.) section
41-2113(B)(4);2 (2) $300 penalty for operating a taxi without a taxi meter, in
violation of A.R.S. § 41-2091(C); (3) $300 penalty for operating a taxi without
displaying interior signage containing fare information, in violation of
A.R.S. § 41-2096(A); (4) $300 penalty for operating a taxi without displaying
exterior signage containing fare information, in violation of A.R.S. § 41-
2096(C); (5) $300 penalty for operating a taxi without displaying driver’s
identification, in violation of A.R.S. § 41-2096(B); (6) $500 penalty for
operating a taxi without displaying taxi license plates, in violation of A.R.S.
§ 41-2091(K); and (7) $500 penalty for operating a taxi without proper
insurance, in violation of A.R.S. § 41-2091(K).

¶8             Collins appealed the Notice of Violation, and DWM
conducted a hearing before the Office of Administrative Hearings. At the
hearing, DWM presented the evidence obtained from the investigation.
Collins testified he had not been operating a taxi, but rather “selling his
image” and promoting a future taxi business.

¶9           The ALJ specifically “deemed [Collins’ testimony] not
credible given the totality of the evidence of the record,” and concluded
DWM had proven each violation by a preponderance of the evidence. It


2       Absent material revisions after the relevant dates, statutes cited refer
to the current version.


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                           COLLINS v. AZDWM
                           Decision of the Court

therefore affirmed the total civil penalty of $2,500 assessed against Collins.
DWM subsequently adopted the ALJ’s findings and conclusions as a final
administrative decision.

¶10           Collins thereafter filed a complaint for review with the
superior court pursuant to the Administrative Review Act. See A.R.S.
§§ 12-901 to -914. The superior court affirmed DWM’s conclusions, and
Collins timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-913
and -2101(A)(1).

                               DISCUSSION

¶11            In reviewing an agency decision, the superior court “shall
affirm the agency action unless after reviewing the administrative record
and supplementing evidence presented at the evidentiary hearing the court
concludes that the action is not supported by substantial evidence, is
contrary to law, is arbitrary and capricious or is an abuse of discretion.”
A.R.S. § 12-910(E). On appeal, we review the superior court’s judgment de
novo, “independently examin[ing] the record to determine whether the
evidence supports the judgment.” Webb v. State ex rel. Ariz. Bd. of Med.
Exam’rs, 202 Ariz. 555, 557, ¶ 7, 48 P.3d 505, 507 (App. 2002) (citing Carley v.
Ariz. Bd. of Regents, 153 Ariz. 461, 463, 737 P.2d 1099, 1101 (App. 1987)).

¶12            Thus, “our respective roles begin and end with determining
whether there was substantial evidence to support the administrative
decision,” Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods.,
Inc., 167 Ariz. 383, 387, 807 P.2d 1119, 1123 (App. 1990) (citing Plowman v.
Ariz. State Liquor Bd., 152 Ariz. 331, 335-36, 732 P.2d 222, 226-27 (App. 1986),
and Sundown Imports, Inc. v. Ariz. Dep’t of Transp., 115 Ariz. 428, 431, 565
P.2d 1289, 1292 (App. 1977)). Substantial evidence exists even if the record
also supports a different conclusion. DeGroot v. Ariz. Racing Comm’n, 141
Ariz. 331, 336, 686 P.2d 1301, 1306 (App. 1984) (citing Webster v. State Bd. of
Regents, 123 Ariz. 363, 365, 599 P.2d 816, 818 (App. 1979)). The superior
court errs when it substitutes its own judgment for that of the fact finder —
here, the administrative law judge — and may not re-weigh the evidence
upon which the decision was based. Richard E. Lambert, Ltd. v. City of Tucson
Dep’t of Procurement, 223 Ariz. 184, 187, ¶ 9, 221 P.3d 375, 378 (App. 2009).
An agency’s determination may be overturned only if it “‘is without any
evidence to support it, or is absolutely contrary to uncontradicted and
unconflicting evidence upon which it purports to rest.’” Ariz. Dep’t of Pub.
Safety v. Dowd, 117 Ariz. 423, 426, 573 P.2d 497, 500 (App. 1977) (quoting E.
Camelback Homeowners Ass’n v. Ariz. Found. for Neurology & Psychiatry, 18
Ariz. App. 121, 126, 500 P.2d 906, 911 (1972)).


                                       4
                             COLLINS v. AZDWM
                             Decision of the Court

¶13            Collins does not dispute the physical attributes of the vehicle
or the lack of commercial insurance. Rather, he argues only that there was
insufficient evidence to support the ALJ’s finding that he was operating a
taxi. We disagree, as we find there is substantial evidence in the record to
support this determination. Collins was observed soliciting taxi rides at the
entrance of Wal-Mart. His vehicle displayed the word “taxi” in three
locations, and at least one person — his purported passenger — believed
him to be lawfully operating as a taxi.

¶14             Although Collins presented his own testimony to controvert
these facts, the ALJ did not find it credible in light of the other evidence.
             3

Therefore, nor do we. State v. Alawy, 198 Ariz. 363, 365 n.2, ¶ 7, 9 P.3d 1102,
1104 (App. 2000) (noting “it is not for [the appellate] court but for the trier
of fact to determine the credibility of the witnesses”); see Ritland v. Ariz. State
Bd. of Med. Examn’rs, 213 Ariz. 187, 190, ¶ 10, 140 P.3d 970, 973 (App. 2006)
(explaining the “‘predicate upon which our deference is given to the finder
of fact is the assumption that he has indeed had the opportunity to look the
witness in the eye and reach a conclusion with respect to his veracity or lack
thereof.’” (quoting Adams v. Indus. Comm’n, 147 Ariz. 418, 421, 710 P.2d
1073, 1076 (App. 1985))).

¶15          Alternatively, Collins argued below that the taxi was not
“operational” in that “[n]o one moved an inch in [his] car.” Collins
presented no authority for the position that, as long as an unlicensed
commercial vehicle is not in motion, it is not being “operated.” To the

3       Collins argues the ALJ “totally disregarded or ignored” testimony
from his fiancé, “a witness to this issue.” The record reflects Collins was
the only witness offered on his behalf at the hearing. There is no indication
Collins attempted to, or was denied the opportunity to, present his fiancé’s
testimony. Moreover, Collins failed to provide a transcript of the hearing
to this Court. See State ex. rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30,
¶ 16, 66 P.3d 70, 73 (App. 2003) (noting appellant’s responsibility to ensure
complete record on appeal and holding “[w]hen a party fails to do so, we
assume the missing portions of the record would support the [ALJ]’s
findings and conclusions” (citing Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d
764, 767 (App. 1995))). On this record, we do not find any error. Even
assuming the record was complete, the ALJ is within his discretion to
disregard or ignore testimony from an interested witness that is contrary to
other credible evidence. See Stanley v. Moan, 71 Ariz. 359, 361, 227 P.2d 389,
391 (1951).




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                          COLLINS v. AZDWM
                          Decision of the Court

contrary, A.R.S. § 41-2114 creates a rebuttable presumption that a
commercial device is “regularly used” for a business purpose if it “is in or
about any place in which or from which buying or selling is commonly
carried on.” Here, evidence was presented that Collins was preparing to
provide passenger services for a fare outside a busy Wal-Mart, where at
least one other taxi driver was available to provide transportation. Collins
offered nothing to rebut the presumption that his vehicle was “in use,” and
we therefore reject this argument.

                             CONCLUSION

¶16          We affirm the superior court’s order upholding DWM’s
determination that Collins operated a taxi without a license and without
required equipment and insurance, and imposing a civil penalty for these
violations.




                              :gsh




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