Opinion
No. 1 CA-CV 18-0206
01-31-2019
NABIL ZAYED, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF TRANSPORTATION, Defendant/Appellee.
COUNSEL Nabil Zayed, Mesa Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By Michael Rassas Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. LC2017-000096-001
The Honorable Patricia A. Starr, Judge
AFFIRMED
COUNSEL Nabil Zayed, Mesa
Plaintiff/Appellant Arizona Attorney General's Office, Phoenix
By Michael Rassas
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined. CATTANI, Judge:
¶1 Nabil Zayed appeals the superior court's order affirming the decision and order of the Arizona Department of Transportation ("ADOT") (1) finding that he offered used motor vehicles for sale without the proper license and (2) imposing a $13,000 civil penalty on NZ Transports LLC. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 NZ Transports is a licensed wholesale motor vehicle dealer, and Zayed is its owner and/or managing member. As a wholesale dealer, NZ Transports is licensed to sell used motor vehicles only to other licensed motor vehicle dealers. See Ariz. Rev. Stat. ("A.R.S.") § 28-4301(37).
¶3 In November 2016, ADOT charged NZ Transports and/or Zayed with unlawfully acting as a used motor vehicle dealer (rather than a wholesale motor vehicle dealer) without holding a used motor vehicle dealer license. ADOT requested cancellation of NZ Transports' wholesale license, see A.R.S. § 28-4493(A)(3), and imposition of a $1,000 civil penalty for each of 13 vehicles offered for sale, totaling $13,000. See A.R.S. § 28-4501(A)(1).
¶4 At a hearing before an administrative law judge ("ALJ"), an ADOT investigator testified that he discovered the violations when conducting a business audit of NZ Transports. Using the phone number associated with NZ Transports, the investigator searched a program that archives advertisements posted on Craigslist and other, similar websites. The search results associated with NZ Transports' phone number included 13 distinct vehicles that had been offered for sale by owner on Craigslist during the seven-month period from October 2015 through May 2016. The investigator followed all 13 links to view the archived advertisements, and he printed four of the more recent advertisements. The investigator noted that the vehicle photographs in those four advertisements seemed to have been taken "in [Zayed's] back yard."
¶5 When the investigator asked Zayed about the advertisements, Zayed stated that he advertised the vehicles for sale on Craigslist, but if a buyer responded, he would transfer title first to SBK Motors (a licensed used motor vehicle dealer) and then to the buyer, and that he would then receive a commission for the sale. The investigator testified that this process did not "technically comply with the wholesale licensing" requirements because "under [the] statute, offering, negotiating, exchanging any motor vehicle . . . is the same as actually selling."
¶6 Zayed testified that the phone number for NZ Transports was his personal cell phone number, which he used for both personal and business purposes. He admitted that he listed the 13 vehicles for sale on Craigslist, but he testified that nine or ten of the vehicles were listed on behalf of SBK Motors and the others on behalf of private individuals. When asked whether any of the advertisements indicated that the vehicles were offered for sale on SBK Motors' behalf, Zayed explained, "[N]o they don't say anything like that. . . . [W]hen people call we tell them." He explained that the vehicles were offered for sale "by owner" because, "[a]s I understand, the dealership owns the cars. It's owned [by] the dealer--dealership, which is the owner." Zayed testified that he works for SBK Motors, but that he is paid in cash and is not an employee.
¶7 The ALJ then issued a decision finding that NZ Transports/Zayed offered for sale used motor vehicles without holding the proper license. The ALJ ordered NZ Transports to pay a $1,000 civil penalty for each vehicle ($13,000 total), but declined to cancel NZ Transports' wholesale license. NZ Transports filed a timely rehearing request (signed by Zayed), stating, "I have all the docs to prove my case. Last time I didn't give the state any supporting doc. I will be giving the state all the supporting docs." The ALJ denied the request for rehearing and affirmed the civil penalty.
¶8 Zayed appealed to the superior court. Although he attempted to appeal on behalf of NZ Transports as well, the superior court ordered NZ Transports to obtain counsel, see Boydston v. Strole Dev. Co., 193 Ariz. 47, 49, ¶ 7 (1998) (corporate entity must be represented by counsel), but it did not do so. The court dismissed the appeal as to NZ Transports and, after full briefing, affirmed ADOT's order as to Zayed.
¶9 Zayed timely appealed. We have jurisdiction under A.R.S. § 12-913. See Svendsen v. Ariz. Dep't of Transp., 234 Ariz. 528, 533, ¶ 13 (App. 2014).
DISCUSSION
¶10 On judicial review of ADOT's decision, the superior court must affirm unless the decision "is contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion." A.R.S. § 12-910(E). On appeal from the judgment affirming ADOT's decision, we independently review the administrative record to determine whether the record supports the administrative decision. See Parsons v. Ariz. Dep't of Health Servs., 242 Ariz. 320, 322, ¶ 10 (App. 2017). We view the facts in the light most favorable to upholding the agency's decision, see Shorey v. Ariz. Corp. Comm'n, 238 Ariz. 253, 258, ¶ 14 (App. 2015), and defer to the ALJ's determinations regarding witness credibility, Siler v. Ariz. Dep't of Real Estate, 193 Ariz. 374, 383, ¶ 47 (App. 1998). We will not re-weigh conflicting evidence and will affirm if the decision is supported by substantial evidence. DeGroot v. Ariz. Racing Comm'n, 141 Ariz. 331, 335-36 (App. 1984). We review questions of law de novo. Comm. for Justice & Fairness v. Ariz. Sec'y of State's Office, 235 Ariz. 347, 351, ¶ 17 (App. 2014).
¶11 Arizona law requires all persons in the business of selling motor vehicles to be properly licensed. A.R.S. § 28-4334(A). A "wholesale motor vehicle dealer" license authorizes the licensee to sell used motor vehicles only to other licensed motor vehicle dealers. A.R.S. § 28-4301(37). In contrast, a "used motor vehicle dealer" license is required if a person "buys, sells, auctions, exchanges or offers or attempts to negotiate a sale or exchange of an interest in, or who is engaged in the business of selling, seven or more used motor vehicles in a continuous twelve month period." A.R.S. § 28-4301(35). The statutory definition of used motor vehicle dealer expressly excludes a wholesale motor vehicle dealer. Id. Among other penalties, a person who violates these licensing provisions is subject to a civil penalty of at least $1,000 per violation. A.R.S. § 28-4501(A)(1); see also, e.g., A.R.S. § 28-4493(A)(3) (authorizing cancellation or suspension of license for statutory or regulatory violations).
¶12 Broadly speaking, Zayed challenges the sufficiency of the evidence to support ADOT's decision and order. But the evidence presented during the administrative proceedings supports the ALJ's findings that: (1) Zayed does not have a used motor vehicle license, (2) his wholesale license only allows him to sell vehicles to a licensed dealer, and (3) he offered for sale by owner 13 vehicles within an approximately seven-month period.
Zayed's opening brief largely fails to include citations to the record or to legal authority, which could be deemed a waiver of the issues presented. See ARCAP 13(a)(7); Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 137, ¶ 7 n.2 (App. 2011). In an exercise of our discretion, we decline to treat this as a waiver and instead address all but one of Zayed's arguments. Given the lack of any adequate explanation, citation to the record, or reference to authority, see In re Aubuchon, 233 Ariz. 62, 64-65, ¶ 6 (2013), we do not consider Zayed's argument regarding dismissal of unspecified criminal charges apparently related to a used motor vehicle license. --------
¶13 Zayed argues that ADOT failed to show he and/or NZ Transports—as opposed to third parties—owned the 13 vehicles that were offered for sale. But the text of § 28-4301(35) does not require ownership of the vehicles offered for sale, and Zayed cites no legal authority (nor have we found any) that imposes such a requirement. Zayed further asserts that he was acting as an agent for licensed-used-motor-vehicle-dealer SBK Motors when offering nine or ten of the vehicles for sale. But Zayed testified to that effect at the administrative hearing and the ALJ nevertheless found that Zayed and not SBK Motors was responsible for the advertisements. We defer to this credibility assessment. See Siler, 193 Ariz. at 383, ¶ 47. Zayed also argues that ADOT did not present any evidence regarding 9 of the 13 vehicles, but the investigator testified that he followed the links to the archived advertisements for all 13 of the vehicles listed in the search results even though he printed only the four most recent, and Zayed himself confirmed multiple times that he had offered all 13 vehicles for sale by owner. Zayed's argument to the contrary is thus unavailing.
¶14 In sum, the record reflects that Zayed "offer[ed] or attempt[ed] to negotiate a sale . . . [of] seven or more used motor vehicles in a continuous twelve month period" without being licensed as a used motor vehicle dealer. See A.R.S. § 28-4301(35); see also A.R.S. § 28-4334(A) (a person may not engage in any business regulated by Title 28, Chapter 10 unless the person is properly licensed). Accordingly, there is substantial evidence supporting ADOT's decision and order.
CONCLUSION
¶15 For the foregoing reasons, we affirm. As the prevailing party, ADOT is entitled to an award of costs on appeal upon compliance with ARCAP 21.