FORREST REX DONAHUE, 115 Forest Drive, Ona, Cabell County, Defendant.

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1 OF WEST VIRGINIA CHARLESTON At a session of the OF WEST VIRGINIA in the City of Charleston on the 19th day of April, CASE NO S-C SHEILA H. STARK, 118 Forest Drive, CASE NO S-C LOIS K. OLSON, 116 Forest Drive, ha, Cabell County, CASE NO S-C ROBERT D. HEGWOOD, 106 Forest Drive, CASE NO S-C SHERWOOD ESTATES PROPERTY OWNERS ASSOCIATION, INC., a corporation, C omp lainan t, SHERWOOD ESTATES, INC., a corporation; FORREST R. DONAHUE; STEVE LOVEJOY and

2 JIM DODDS, dba SHERWOOD UTILITIES; STEVE LOVEJOY, and JIM DODDS, individually, JOE BILL BEASLEY, and JUDITH BEASLEY, CASE NO S-C Defendants. JOSEPH K. McDONIE, 120 Forest Drive, COMMISSION ORDER AFFIRMING HEARING EXAMINER'S DECISION On July 2, 6, 9, 11 and 16, 1984, four individuals and one corpo- ration filed complaints, duly verified, against Forrest Rex Donahue for failure to obtain a certificate of convenience and necessity to operate the sewer system serving Sherwood Estates subdivision. One of the com- plaints also named Sherwood Estates, Inc., a corporation; Jim Dodds and Steve Lovejoy dba Sherwood Utilities and individually; and Judith and Joe Bill Beasley, as defendants. By orders entered on July 2, 6, 9, 11, and 16, 1984, Forrest Rex Donahue and other named defendants were ordered to satisfy the complaints or make answer thereto within ten (10) days of the service upon them of copies of the complaints and copies of the Commission's orders. Answers were submitted by all defendants in all five cases. By an order entered by the Commission on July 13, 1984, Sherwood Estates, Inc., a corporation, Forrest Rex Donahue, Steve Lovejoy, Jim Dodds dba Sherwood Utilities, Steve Lovejoy and Jim Dodds, individually, L

3 Joe Bill Beasley and Judith Beasley were required to continue providing sewer service to the residents of Sherwood Estates, pending an investigation and final decision by the Commission in these cases. By order entered on September 6, 1984, these matters were consolidated and set for hearing to be held in the Commission's Hearing Room at the Capitol in the City of Charleston on October 9, 1984, at 9:30 a.m. Proper notice was given and the hearing was held as scheduled on October 9, Forrest Rex Donahue and Sherwood Estates, Inc., were represented by Robert C. Chambers, Esquire. Steve Lovejoy and Jim Dodds were present without counsel. Joe Bill Beasley and Judith Beasley were represented by James St. Clair, Esquire. Sherwood Estates Property Owners Association, Inc., complainant in Case No S-C, was represented by Clovis D. Kuhn, Esquire. One complainant, Sheila H. Stark, was present. The Commission Staff was represented by Ann A. Spaner, Esquire. At the close of the hearing, the matters were submitted for decision pending receipt of post-hearing exhibits. On March 1, 1985, Hearing Examiner McDonnell entered a Recommended Decision. On March 13, 1985, Defendants Judith and Joe Bill Beasley filed exceptions to the decision. DISCUSSION Although the exceptions of the Beasleys are untimely filed, we shall consider them. The Public Service Commission will not revise, modify or reverse a Hearing Examiner's Decision unless the findings therein are arbitrary, unjust, contrary to the evidence or unsupported by the evidence, - B&O,-. J

4 Railroad v. Public Service Commission, 99 W.Va. 670, 130 S.E. 131 (1925); Weirton Ice and Coal Supply Company v. Public Service Commission, - W.Va. -, 240 S.E.2d 686 (1977); Virginia Electric and Power Company, - W.Va. -, 242 S.E.2d 698 (1978); or the decision is based on a mistake of law or a misapplication of legal principles, Preston County Light and Power Company v. Public Service Commission, 297 F.Supp. 759 (S.D. W.Va., 1969); Atlantic Greyhound Corporation v. PSC, 132 W.Va. 650, 54 S.E.2d 169 (1949); or the decision is contrary to Commission practice or policy, Mac's Wrecker Service, Inc., M.C. Case No (1979); Washington Oil Company, Case No G-X, 68 ARPSCWV 1573 (1981). See Pauley, M.C. Case No C (1984); Bartram, M.C. Case No (1983). We have carefully reviewed the Hearing Examiner's Decision, the exceptions filed by the Beasleys and the representations made in support thereof and are of the opinion that the Hearing Examiner's Recommended Decision of March 1, 1985 should be affirmed based on the discussion below. In his Recommended Decision Examiner McDonnell finds that since the system in question attained twenty-five users in June of 1982 (Tr. p. 591, the system was thereafter subject to the jurisdiction of the Public Service Commission. West Virginia Code $ The Hearing Examiner also noted that, under cross-examination, Mr. Beasley admitted that at least some of the portion of the package treatment plant is on the property which he purchased. (Tr. p. 95). Furthermore, the Hearing Examiner noted that in the answer filed on behalf of the Beasleys the assertion is made that the Beasleys are the owners of the property. (Answer of Defendant Beasley, p. 3, paragraph 5). Accordingly, the Hearing Examiner ultimately concluded that since the utility in question attained the minimum number Lt

5 of persons receiving sewer service, namely, twenty-five persons, in June of 1982, the Public Service Commission's jurisdiction was triggered at that time. Therefore, the Hearing Examiner correctly ordered the Defendants Joe Bill and Judith Beasley to file an application with the Commission for a certificate of convenience and necessity to operate and maintain a sewer utility in Sherwood Estates, Ona, West Virginia, within sixty (60) days of the date that the Recommended Decision became the final order of the Commission. Since we conclude that the Hearing Examiner's Recommended Decision contains no reversible error, it shall be affirmed. FINDING OF FACT The Commission finds that the Hearing Examiner's Decision entered in March 1, 1985, contains no reversible error. CONCLUSION OF LAW The Commission concludes as a matter of law that the Recommended Decision should be affirmed. ORDER IT IS, THEREFORE, ORDERED that: 1. The exceptions filed by Joe Bill and Judith Beasley on March 13, 1985, shall be, and they hereby are, denied for the reasons hereinbefore stated. 2. The Hearing Examiner's Recommended Decision entered on March 1, 1985, in this case, shall be and it hereby is, affirmed and adopted as the final order of the Commission. 2

6 t rt 3. The Findings of Fact and Conclusions of Law stated in the Hearing Examiner s Decision of March 1, 1985, shall be and they hereby are, incorporated as a part of this decision by reference. 4. The Executive Secretary of the Commission shall serve a copy of this order upon all parties of record by Certified Mail, return receipt requested. &{ fi, pa75 Commissioner Otis D. Casto MPB: lc Commissioner Charlotte R. Lane w@l Chairman Michael D. Greer b