PUBLIC SERVICE COMMISSION OF WEST VIRGINIA. CHARLESTON Entered: October 11, 1985

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1 _-I- M.C. CASE NO C CHARLESTON Entered: October 11, 1985 ROBERT C. WOODS, doing business as BOB'S DELIVERY SERVICE, Gauley Bridge, Fayette County. Application for a certificate to operate as a common carrier. HEARING EXAMINER'S DECISION PROCEDURE On April 10, 1985, Robert C. Woods, doing business as Bob's Delivery Service, Gauley Bridge, Fayette County, filed an application for a certificate of convenience and necessity to operate as a common carrier by motor vehicle in the transportation of-- fresh flowers, mine parts, auto parts, hardware and-app-li-ances sad mdaektred -~ro$zx.rrtsb-etn---po~- s~piaceson a regular basis in Putnam, Kanawha, Fayette, Raleigh, Boone, Logan, and Wyoming Counties, on the one hand, and points and places in West Virginia on the other hand. All shipments will originate or terminate in said counties. Rates to be charged: $5.25 for the first 100 miles and $3.00 per 100 over 100 pounds. By order dated April 10, 1985, the Applicant was required to give notice of the filing of said application by publishing a copy of said order once in a newspaper, duly qualified by the Secretary of State, published and of general circulation in each of the Counties of Putnam, Kanawha, Fayette, Raleigh, Boone, Logan and Wyoming. Proper notice was given as required and letters of protests were received.

2 ~ By order dated May 3, 1985, this matter was set for a hearing to be held in the Commission's Hearing Room, 201 Brooks Street, Charleston, West Virginia, on June 7, The hearing was held as scheduled. The Applicant appeared in person, unrepresented by counsel. The Protestant, Quick Delivery Service, appeared by its Counsel, Mr. Thomas A. Brown, Esquire. The Protestant, Cantrell Motor Lines, Incorporated, appeared by its Counsel, Mr. James D. Kauffelt, Esquire. EVIDENCE PRESENTED Mr. Oliver W. Barokat is Vice-president of Branch Operations of the Cleveland Plant and Flower Company which has twelve stores in nine different states extending from California to upper New York and from upper New York to North Carolina. Their business is as a wholesale distributor of flowers and have a daily need for deliveries to be made. He explained that, in the past, his Company had relied upon_ and&--- Service for shipments within the State, but with the discontinuance of some of the service, it has made some direct shipments almost impossible. Seventy-five (75%) percent of the items which his Company delivers are perishable with 25% being characterized as nonperishable. He further explained that when the Applicant was in business as Van's Delivery ten years before, his Company had used Van's everyday but after the Applicant sold out, his Company was without this type of service for several years. Currently, Cleveland Plant and Flower Company is using Tooter's Delivery Service. His Company also has eight vehicles that they use to make their own deliveries over a 200 mile radius from their Charleston business. Only one of these vehicles is a refrigerated truck. He characterized the

3 business today as not being good. He feels that another carrier is needed in the area so that it will allow his Company to eliminate some of their own delivery service which will reduce their overhead and expense. Mr. Barokat further testified that no one has ever solicited his local manager for any kind of hauling business. He stated that in the past, they have, on occasion, used city buses to deliver flowers to the St. Albans area. He also has called Smith Transfer, which they use now for interstate shipments, but Smith Transfer is not interested in this local hauling. For the local intrastate service that he has need of, he testified that he has not called anyone because he did not know of anyone who was in the business. He is aware of the services of Quick Delivery but considers their -- costs to be too high to make regular use an economic possibility. He further continued his testimony by stating that in making the deliveries for his Company, the trucks do not necessarily have to be refrigerated as they put ice on the flowers and have them in in,sulated-bxes-v.---- _c_- of his own Company are used primarily to make all local deliveries within Kanawha County. Van's Delivery Service was used to service places such as Richwood, making a series of stops between Charleston and Richwood. The most important, in his consideration, was Van's prior service to Marlintor as there are not many florist shops between here and there, so he was forced to only give them service once a week. In rendering this service, he viewed Van's prices as being very reasonable when they were in business previously. The deliveries made are on a "same day" basis and he statec that he has regular deliveries to all of the counties for which the Applicant has applied. Mr. Barokat further testified that it would save his Company money to have someone else to make the deliveries since all of their deliveries are without cost to the customer. He is familiar wit1-3-

4 the equipment that the Applicant operated the last time that he was in business but not with what he would use in his operations now, however, he feels, from past experience, that Mr. Woods will provide adequate service and has the finances to run a successful business. Mr. Barokat continued that his Company has never used Quick Delivery Service, as on some oc- casions, to ship flowers by their service would have resulted in a charge for delivery higher than the cost of the flowers. While he was not sure of the exact rates that the Applicant would be charging for his service, he knew that they would be cheaper than for his Company to make the deliveries themselves. Most of the shipments weigh between 80 to 90 pounds per box. He concluded his statement in support of the application by stating that he was only testifying as concerning the shipment of flowers and related items as his Company is not involved in the shipment of any other commodities. (Tr., pp. 6-40). Mr. Mark Music is the General Manager of Brown's -- Chevrolet anc _. ~ _ Uldsmobile in -Montgomery, West Virginia. He began his testimony by I stating that his Company has need to have parts shipped from suppliers ir Charleston along with shipments from Lewis Chevrolet in Beckley and Day and Night Garage. He pointed out that the day before the hearing had beer the last time when he had need for a part that he could not get delivered. Mr. Music further explained that when performing warranty work that is done at no charge to the customer, his Company cannot afford using expen- sive delivery services such as Quick Delivery Service. He has found that the rates proposed to be charged by the Applicant to be reasonable. WheT a part is needed, Mr. Music explained that the dealership first looked tc Charleston for the supplies, mainly because they can get delivery easier. If the part must come from areas such as Maryland or Tennessee, then the3 m -4-

5 often rely upon UPS. He further testified that his Company does not get parts from Wyoming County, however, they do get the parts regularly from Logan, Boone, Raleigh, Fayette and Putnam Counties. Most of the parts that he has need of are small items. Although his Company has, on occasion, sent its own man to get a part in an emergency case, it is not economically feasible for them to pay a man, by the hour, to get a part and use a company vehicle. (Tr., pp ). The final witness to appear on behalf of the Applicant was Mr. Anthony Lanna, who is the General Manager of Sterling Industrial Products. He stated that his testimony is principally concerning the type of service that was rendered by the Applicant as Van's Delivery prior to his going out of business in the late 1970's. Since that time, he has not used his service regularly because he is not in business. When their business began, as a new company, the service in deliveries was very important, plus the expense involved, so they used principally UPS, Parcel Post and buses, if such service was available. In the past, besides Vans, in the Charleston area, Mr. Lanna stated that his Company has also used Quick Delivery Service, on occasion, or cab companies on a very special basis only. For an emergency situation, Mr. Lanna pointed out that these services are fine but in the long run, it is just too expensive. The service to be provided by the Applicant would be less expensive in that his rates for most of the packages would have a cost ranging from $4.00 to $7.00 with no minimum charge. He has not called any other carriers besides Quick Delivery. The business that they conduct is throughout the entire State. The type of service that he is looking for is "same day" service. In concluding his statement, he indicated that the items that principally would be shipped via Bob's Delivery Service, if authority is -5-

6 granted, would be those things able to be picked up by one person weighing under 75 pounds. The heavier items that they might have call to deliver would be handled by themselves. On most of the shipments that they have.- called for delivery, time is of the essence. (Tr., pp ). With the testimony of Mr. Lanna, the Applicant had no further evi- dence to present in support of its application, whereupon testimony was then taken on behalf of several Protestants appearing at the hearing. The first of these Protestants to give testimony was Mr. Barry Cantrell, who is the President of Cantrell Motor Lines, Incorporated, a common carrier providing service throughout the State with shipments originating from Kanawha, Putnam, Boone, Raleigh, Fayette, Greenbrier and Nicholas Counties. In his operations, Mr. Cantrell stated that their Company operates straight trucks and tractors and trailers, having 10 tractors with 12 trailers and two 20-foot straight trucks. In March, he pointed out that 8 trucks were used, while in April, 7 1/2 trucks, and in & -fay, 1. I tegeswere' used per day, which is far below the Company's capacity. He has drivers for all of his trucks, which are either on call or on temporary layoff. --_.-- The authority that his Company has with the Public Service Commission is for general commodities, which would allow him to ship any thing covered by the authority sought by this application. He feels that the granting of this authority would have an adverse affect in respect to potential business that he might lose to another carrier. Cantrell Motor Lines, Incorporated, has incurred some indebtedness amount- ing to approximately $28,500 in securing two (2) certificates. These certificates were bought and more authority added in order to increase the Company's availability with the hope that it would generate more business. Mr. Cantrell stated that his Company actively solicits business in the _-, -6-

7 entire area of its authority. Besides operating as a common carrier, Cantrell Motor Lines, Incorporated, also has interline service with Yellow Freight, which provides for delivery of items to his facility, where the shipment is broken up and deliveries made. Of the equipment that he has, Mr. Cantrell stated that he has no vans currently registered with the Public Service Commission. All he does own is two pickup trucks. He admitted that if he got a call from the Cleveland Plant and Flower Compa- ny, he would not currently have the equipment registered with the Public Service Commission to make such a haul for them, however, if enough demand were to be there, he could acquire the equipment necessary to make such a shipment. He concluded his statement by indicating that under his state- wide authority, he could handle all of the commodities covered by this application. (Tr., pp ). The final witness in protest was Mr. William P. Jones, the President of Quick Delivery Service. He indicated that Quick Delivery, _- Service has -- _- * - - -, --!Public Service Commission authority covering points and places from Charleston to and from anywhere in the State. His business currently has the capacity to ship small packages including all items covered by the authority sought by the Applicant. To do so, he has vehicles registered with the Public Service Commission. He pointed out that his delivery service could move flowers from Charleston to Lewisburg in about four hours at a cost of $111, but the same cost under his rate structure would apply whether the package was one pound or five thousand pounds. Quick Delivery advertises in the phone books and newspapers of the area but he also has a salesman that visits some of their regular shippers to solicit business. Even with this solicitation, he has not received any business from Cleveland Plant and Flower Company or Sterling. As this is _- OF IRE"* -7-

8 his Company's only second year of operation, he could only testify that during the first year, they lost some $53,000 and the figures are not yet in for the second year. He feels that the future business of his Company will be affected by the loss of an FMC Plant within the Charleston area. Besides himself, there are approximately eleven other haulers in the area that provide delivery service. The average package that his Company moves is about 30 pounds. He described emergency service, which is part of their authority, as being defined as "same day" delivery. Of the four vans that his Company owns and operates, two are heavily insulated. (Tr., pp ). Burden of Proof DISCUSSION OF APPLICABLE LAW It is well established in this State that one applying for a common carrier certificate over a defined territory must establish to the satis- --, _ f~-~t-i~~-f--~o~~sion that public convenience and necessity require the proposed service. Weirton Ice and Coal Supply Company v. Public Service Commission, 240 S.E.2d, 686 (1977), West Virginia Code 524-A-2-5. The Commission has interpreted this requirement to mean that the applicant must demonstrate that he or she has the financial ability, experience and fitness to provide a needed, useful and responsive public service, as well as that the public convenience and necessity require the proposed service. Ford Brothers, Inc., M.C. Case No , April 9, The applicant must produce public witnesses who are able to testify that the proposed service is needed in the area of application. Harless Excavating Company, - Inc, M.C. Case No , April 23, If the evidence of record in the case reveals that there is some kind of need in the proposed area of OF I ROIN'* -8-

9 application, the applicant has established a prima facie case, that the public convenience and necessity require the proposed service and that the service furnished by existing transportation facilities is not reasonably efficient and adequate. Ford Brothers, supra. The applicant is not required to demonstrate by positive proof that the service furnished by existing facilities is not reasonably adequate and efficient. Addition- ally, along with the testimony of public witnesses, factors such as desirability of additional competition and enhancement of a company's ability to provide prompt and efficient public service may warrant a finding that the additional service is required by the public convenience and necessity. Mac's Wrecker Service, Inc., M.C. Case No. 3358, December 13, Once the applicant has presented satisfactory evidence that public convenience and necessity require the proposed service, the burden of proof then shifts to those persons who are protesting the application %-E p-rotestants must then demonstrate by a preponderance of the evidence that the service furnished by the existing transportation facilities is reasonably efficient and adequate and that such entry into the field by the applicant would adversely affect or be detrimental to the public (because, for example, additional competition would be ruinous to the existing common carrier) and that all reasonable needs in the area of application are being met. Harless, supra, at page 3. The protestante must establish that the granting of the requested authority would affect the operations of the existing common carriers to an extent contrary tc the public interest and this evidence must be demonstrated by other thar self-serving statements of the Protestants as to the adequacy and effi- ciency of their concerns in meeting demands. (Id.). _. Thus, in order tc -9-

10 meet their burden of proof as to an application for a certificate of convenience and necessity, the protestants must present witnesses other than themselves before the Commission will deny an application based upon their presentation. FINDINGS OF FACT 1. The Applicant, Robert C. Woods, doing business as Bob's Delivery Service, by this application, has applied for a certificate of convenience and necessity to operate as a comon carrier by motor vehicle in the transportation of fresh flowers, mine parts, auto parts, hardware and appliances, and manufactured products between points and places on a regular basis in Putnam, Kanawha, Fayette, Raleigh, Boone, Logan, and Wyoming Counties, on the one hand, and points and places in West Virginia on the other hand. 2. The Applicant, in the past, has operated Van's Delivery Service, -wedrh~d rublic Service Commission authority. -._-..d The Applicant presented in support of his application the testimony of three public witnesses, Messrs. Oliver W. Barokat, Mark Music and Anthony Lanna. 4. Each of these public witnesses testified that their delivery needs for their businesses were, in part, being met by use of vehicles owned by their respective businesses and other means of delivery, including UPS, Parcel Post and buses. 5. The two Protestants that gave testimony at the hearing were Messrs. Barry Cantrell, President of Cantrell Motor Lines, Incorporated, and William T. Jones, President of Quick Delivery Service, both testifying that their Companies were certificated carriers with Public Service PUBLIC SERVICE COMM19510N -10-

11 Commission authority to make deliveries of the same commodities in the areas sought by this application. Since both were operating under their capacity and both believed that the additional authority would adversely affect their businesses. DISCUSSION Having the initial burden of proof to establish that the public convenience and necessity requires the proposed service, the Applicant did present the testimony of three public witnesses, Messrs. Oliver W. Barokat, Mark Music and Anthony Lanna. The Applicant was unrepresented by legal counsel at the hearing. The evidence presented by the three wit- nesses did not establish a need existing on their part for the authority being sought by the Applicant. A good deal of the questions asked by Mr. Woods pertained to how well the witnesses liked the services that he had performed for them as Van's Delivery Service t there are at 1 ea s t two - ---T ie--ro-txf -to--- thzyhi cc at ion --showedtha delivery services available to haul all of the items within the area being sought by this authority. The principal objection to their use by the witnesses of the Applicant was that the rates of Cantrell Motor Lines, Incorporated, and Quick Delivery Service were too high. It also was testified to that the Applicant's proposed rates would be less. There was no evidence that the Applicant's witnesses had tried to secure services from these two certificated carriers or any others and were refused. Although the Applicant made an attempt to bring witnesses to estab- lish a need for the authority being sought by this application, the testimony that they gave at the hearing failed to establish this need.

12 CONCLUSIONS OF LAW The Hearing Examiner is of the opinion and finds that: 1. The Applicant has the burden of proof to establish to the satisfaction of the Commission that the public convenience and necessity requires the proposed service being sought by producing public witnesses who are able to testify that the proposed service is needed in the area of app 1 i ca t ion. 2. While the Applicant presented three public witnesses in support of his application, their testimony did not establish that there was a prima facie case that the public convenience and necessity requires the proposed service and that the service furnished by existing transportation facilities is not reasonably efficient and adequate. 3. Since the Applicant has failed to meet his burden of proof, the application should be denied. ORDER IT IS, THEREFORE, ORDERED that the application of Robert C. Woods, doing business as Bob ' s Delivery Service, Gauley Bridge, Fayette County, for an application of a certificate of convenience and necessity to operate as a common carrier by motor vehicle, be, and the same hereby is, denied. The Executive Secretary is hereby ordered to serve a copy of this order upon the Commission by hand delivery, and upon all parties of record by United States Certified Mail, return receipt requested. Leave is hereby granted to the parties to file written exceptions supported by a brief with the Executive Secretary of the Commission within fifteen (15) days of the date this order is mailed. If exceptions are -12-

13 . filed, the parties filing exceptions shall certify to the Executive Secretary that all parties of record have been served said exceptions. If no exceptions are so filed this order shall become the order of the Commission, without further action or order, five (5) days following the expiration of the aforesaid fifteen (15) day time period, unless it is ordered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to a Hearing Examiner's Order by filing an appropriate petition in writing with the Secretary. No such waiver will be effective until approved by order of the Commission, nor shall any such waiver operate to make any Hearing Examiner's Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commission. RWG:jas hearing Examcner -13-

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON ADMINISTRATIVE LAW JUDGE'S DECISION PROCEDURE

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON ADMINISTRATIVE LAW JUDGE'S DECISION PROCEDURE ENTERED OF WEST VIRGINIA CHARLESTON Entered: February 23, 1989 M.C. CASE NO. 22332-R S.D.S. EXPRESS, INC., a corporation, Milton, Cabell County. Application to reinstate and resume operations under P.S.C.