PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON

Transcription

1 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON At a session of the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA in the City of Charleston on the 18th day of January CASE NO MC-CC COMMUNITY PASTOR CARE, LLC a limited liability company, Application for a permit to operate as a contract carrier in the transportation of passengers for the Department of Veterans Affairs in West Virginia CASE NO MC-FC METRO TRISTATE, INC., a corporation, Complainant, V COMMUNITY PASTOR CARE, LLC, a limited liability company, COMMISS 0 7 ORDER Defendant. The Commission grants the Motion to Consolidate filed by Community Pastor Care, LLC. Case No MC-FC BACKGROUND On October 1, 201 8, Metro Tristate Inc. (Metro) filed a verified Complaint and Motion for Interim Relief (Complaint) against Community Pastor Care (CPC) alleging that CPC is unlawfully providing transportation of passengers for hire by transporting veterans in Cabell and Wayne Counties to the Huntington VA Medical Center (HVAMC). Metro states that this is the same issue that was being litigated in Case No, MC-FC7 Metro Tristate, Inc. v. Community Pastor Care, LLC (Prior Metro

2 Case). The Prior Metro Case was dismissed because CPC stated it was no longer doing business in West Virginia and had no present intention to return to the state. Metro also points out the statement of CPC in the Prior Metro Case that CPC understood that if it were to seek to engage in the same business it would first need to resolve the issues raised in the Prior Metro Case. Metro requests an interim order requiring CPC to cease and desist from providing HVAMC transportation services until such time that it obtains authority from the Commission. On October 12, 2018, CPC filed an Answer and Motion to Dismiss. CPC admitted that it entered into a contract with the United States Department of Veterans Affairs (USDVA) for the sole purpose of providing non-emergency medical transportation exclusively and on behalf of the USDVA. CPC asserted that the Commission lacks jurisdiction to regulate the transportation of veterans on behalf of the USDVA because of (i) the Supremacy Clause of United States Constitution citing United States v. Carter, 121 So. 2d 433 (FL 1960) (Carter), which relies on Public Utilities Commission of State of California v. United States of America (California), 355 US. 534, 78 S.Ct. 446, 2 L.Ed. 2d 470 (1958); (ii) federal preemption under 49 USCS tj (federal authority over intrastate transportation) as recognized by W.Va. Code tj24a-1-3, and; (iii) the holding in Wil-Care Transportation Service Inc., that the Commission does not have authority to regulate non-emergency medical transportation service for veterans. jvij Care Transportation Service, Inc., Case No MC-C, Administrative Law Judge (ALJ) Recommended Decision (Sept. 14, 2017), Concl. Of Law No. 5. (Wil-Care). On October 16, 2018, Metro filed a Motion for Cease and Desist Order (Motion) and a Response in Opposition to Defendant s Answer and Motion to Dismiss Complaint (Metro Response in Opposition). In support of its motion, Metro argued that CPC s illegal activity is depriving Metro of revenue upon which it relies in order to provide service to the public at reasonable rates, thus causing immediate and irreparable injury. In addition Metro asserted that it is contrary to state law, public safety and the public interest to allow CPC to operate illegally without proper authority from this Commission. Metro cited W.Va. Code 524A-1-1 that confers upon the Commission the power, authority and duty to supervise and regulate the transportation of persons and property for hire by motor vehicles upon or over the public highways of this State. In its Response in Opposition, Metro argued that: (i) CPC s business of transporting veterans is not nonemergency medical transportation of Medicaid members as set forth in the exemptions to Commission authority under W.Va. Code 924A- 1-3( 13); 2

3 (ii) (iii) CPC s service does not fall under the exception to this Commission s jurisdiction under the Wil-Care case because CPC is a private, for profit carrier that owns its vehicles and provides services to the USDVA under contract with set pricing, and; CPC s reliance upon the Supremacy Clause is misplaced. The issue in the Carter case was whether the Florida Public Utilities Commission has jurisdiction over rates charged by a common carrier for the Florida intrastate transportation of property for the United States government. Rates are not the issue in this case. On October 26, 20 18, CPC filed a Preliminary Response to Metro s Motion and a Reply to Metro s Response and a motion for referral to the ALJ Division. CPC states that Metro moved for the same interim relief in the Prior Metro Case and the request was denied because Metro did not allege extraordinary facts of immediate and irreparable injury or public interest. CPC also asserts that Metro has asserted facts not included in its Complaint that require further evidentiary development and generally incorporates the same arguments made in its Motion to Dismiss. CPC requests that the case be immediately referred to the ALJ Division if the Complaint is not dismissed. On November 5, 2018, Staff filed an Initial Joint Staff Memorandum. (Staff Memo). Staff recommended that CPC be ordered to immediately cease and desist operations and that the matter be referred to the ALJ Division. Staff states that it will continue to investigate the matter and file a recommendation within the Commission s established time frame. On November 8, 20 18, Metro filed a letter in response to the Staff Memo agreeing with Staffs recommendations. On November 15, 2018, CPC filed its response to the Staff Memo. CPC reiterated that interim relief was denied in the Prior Metro Case. On December 28, 20 18, Staff filed a Final Joint Staff Memorandum. Staff noted that CPC is not registered with the Secretary of State as a foreign company. Staff also contended that the holding in the Wil-Care case was not applicable in this case because, in Wil-Care, the State of West Virginia leased the vehicles directly to the Veterans Administration. The exemptions found in W.Va. Code 924A-1-3 do not apply to the service being provided by CPC. Staff recommends that CPC be required to register with the Secretary of State and obtain a certificate of authority. Staff also recommended that CPC be required to cease and desist providing services until it obtains a certificate from the Commission. 3

4 On January 3, 20 19, Metro filed a letter stating that Metro concurs with the Staff recommendation. Metro also stated that if CPC is allowed to continue to operate illegally the ability of Metro to continue to provide service to the public could be impaired because CPC is depriving Metro of revenue. On January 4, 2019, Staff filed a letter stating that Staff had incorrectly referred to CPC as Community Pastoral Care. CPC is registered to do business in West Virginia. Staff stated that its recommendation to require CPC to register with the Secretary of State and obtain a certificate of authority is moot. Case No MC-CC On January 4, 2019, CPC filed an Application for a permit to operate as a contract carrier for non-emergency medical transportation of United States veterans to and from the HVAMC and outpatient clinics in Charleston and Lenore, West Virginia, Gallipolis, Ohio and Prestonsburg, Kentucky under the terms of its contract with the USDVA. The proposed service area includes the States of West Virginia, Kentucky, Ohio, Virginia and the District of Columbia. CPC s Application filing was designated as Case No MC-CC. On January 4, 2019, an Order was entered referring Case No MC-CC to the Commission s Division of Administrative Law Judges. On January 9, 20 19, Metro protested the CPC Application, petitioned to intervene and moved for an order directing CPC to cease operation. On January 11, 2019, the Administrative Law Judge issued an Order granting Metro s petition to intervene and set the matter for hearing on May 9, On January 15, 2019, CPC filed a Motion to Consolidate (Motion) Case No MC-FC and Case No MC-CC. CPC states, in support of its Motion, that the two cases involve similar questions of law and fact and the same parties. Consolidation will serve the interest of judicial economy and the public interest will not be prejudiced by consolidation. Motion at 1. DISCUSSION Rule of the Commission s Rules of Practice and Procedure provides that two or more proceedings involving similar questions of law or fact may be consolidated if the rights of the public or public interest will not be prejudiced. The Commission agrees with CPC that consolidation of the two cases involve similar issues, that consolidation will serve judicial economy and that the public interest will not be 4

5 prejudiced by consolidation. It is reasonable to consolidate Case No MC-FC with Case No MC-CC. FINDINGS OF FACT 1. In Case No MC-FC. Metro cotnplained about the operation of CPC in the transportation of beterans to and from the HVAMC and requested that the Commission issue a cease and desist order requiring CPC to cease operation until it obtained authority from the Coinin iss i on. 2. In Case No MC-CC. CPC applied for a perinit to operate as a contract carrier in the tr~i~is~~~)rtatioii of veterans to and from the ITVA C atid certain outpatient clinics located in West Virginia, Ohio and Kentuck). Metro has protested the A~~~~Iic~~ti~~i~, requested a cease and desist order and intervened. CONCLUSION OF LAW Case No MC-CC and Case No MC-CC involve the same parties and common issues of law and fact and should be consolidated. ORDER IT IS THEREFORE ORDERED that the Motion to Consolidate filed by Community Pastor Care, LLC is granted and Case No MC-CC is referred to the Division of Administrative Law Judges and consolidated with Case No MC-CC. IT IS FURTHER ORDERED that the Administrative Law Division due date to issue an order in both cases shall be August 2,

6 IT IS FURTHER ORDERED that the Executive Secretary of the Commission serve a copy of this Order by electronic service on all parties of record who have filed an e-service agreement, by United States First Class Mail on all parties of record who have not filed an e-service agreement, and on Staff by hand delivery. A True Copy, Teste, Ingrid Ferrell Executive Secretary RMA/lcw ~ 6