PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON. December 11, 1984

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1 1: Y- L? 2-, CHARLESTON Entered: December 11, 1984 F I M.C. CASE NO C DODFORD L. LAW, doing business as LAW GARBAGE SERVICE, Gary, McDowe County. Application for a certificate to operate as a common carrier. HEARING EXAMINER'S DECISION PROCEDURE On July 24, 1984, Dodford L. Law, doing business as Law Garbage Service, Gary, McDowell County, filed an application for a certificate of convenience and necessity to operate as a common carrier by motor vehicle in the transportation of trash, rubbish and garbage, excluding containerized service, within and between points and places in Gary, McDowell County, and a 10-mile radius thereof, all within McDowell County. This application is for operation by hand pickup only and excludes containerized service. Pursuant to Commission order the Applicant gave notice of the filing of the application by publishing a copy of the Commission's notice once in a newspaper of general circulation in McDowell County making due return to the Commission of the certification of publication in The Welch Daily News on July 26, Protest to the application was received and the matter was regularly set for hearing on September 4, Appearing at that hearing were J. A. Bibby, Jr., Esquire, Counsel for Applicant; Stephen M. Chambers, Esquire, Counsel for Anna Burbett, doing business as A.B. Garbage Service and Larry Hairston, doing business as Larry's Trucking, CHARLLJTON

2 and Arden Curry, Esquire, representing Lusk Disposal Service. At that hearing the application was amended to exclude containerized service and Counsel for Applicant requested (1) a continuance and (2) that the subsequent hearing be held in Gary, West Virginia. Both motions were granted. On October 10, 1984, a hearing was held in Gary. Appearing at that hearing were J. A. Bibby, Jr., Esquire, Counsel for Applicant and Stephen M. Chambers, Esquire, Counsel for Anna Burbett, doing business as A. B. Garbage Service and Larry Hairston, doing business as Larry Trucking; and Eddie Hairston, doing business as Eddie Hairston's Garbage Disposal Service. The Hearing Examiner has reviewed the complete record and file and makes the following finding of fact and conclusions of law. II FINDINGS OF FACT 1. Charley Lane, a resident of Gary, West Virginia, is presently receiving acceptable garbage and trash services from Larry Hairston although prior to the last six months there were times when Mr. Hairston had missed picking up Mr. Lane's garbage on several occasions. (Tr., p. 2. Mrs. Bud Allen who resides in Gary, West Virginia, is not receiving acceptable garbage services as her garbage lids are not tightly replaced by Larry Hairston's employees causing the lids to be blown about by the wind. Further the service men leave trash in her backyard, which practice has continued intermittently for two years. (Tr., pp and 3. Donne11 Davis who works for the Board of Education was satisfied with trash hauling services in the area. (Tr., p. 19). CHARLESTON -2-

3 4. Tommy Anderson who lives at Thorpe has had difficulty with the trash hauling services of Larry's Garbage because he does not regularly pick up his garbage and when he does the employees do not pickup the trash that falls out of the trash can. (Tr., p. 21). As a police officer, Mr. Anderson had received about 20 complaints per month about Larry's Garbage Service. (Tr., pp ). 5. Bill Lester complained that Larry's Garbage does not come to his house on the same day every week, although within the past couple of weeks trash has been consistently picked up on Tuesday. (Tr., p. 26). In June Mr. Lester did not receive garbage service for two successive weeks and in July Mr. Hairston missed his pickup three weeks. (Tr., p. 27). 6. Ovella Jennings of Wilco Yard, which is within a ten mile radius of Gary, stated that Mr. Eddie Hairston leaves garbage in the cans and will not take old windows and larger items left near the cans. (Tr., pp ). 7. Donna Cottle, who resides at Wilco, indicated that she was receiving fairly good service from Larry Hairston although he will not haul the large items away. Presently she has a bed which has been there three weeks which needs to be hauled away. She has never discussed the hauling of these items with Mr. Hairston. (Tr., pp. 34, 38). 8. Rebecca Neely lives at Wilco Yards, Gary, West Virginia and by agreement shares a neighbor's garbage can and splits the monthly billing. She had some difficulty a few years ago with trash being left in her yard by Larry's Garbage employees and his intermittent schedule of pickups has caused her inconvenience. (Tr., pp ). 9. Dodford L. Law resides at Gary Bottom and filed the application for the certificate. (Tr., p. 45). Mr. Law estimated his net worth to be CHARLESTON -3-

4 $11,000, in a savings account. (Tr., p. 50). Mr. Law was the outside janitor for US Steel and is presently laid-off. He intends to drive the packer vehicle himself until called back to work at US Steel. (Tr., p. 55). Mr. Law has arranged for the purchase of a packer truck for use in his business from Cole Motors which will cost approximately $50,000 and estimated the nonthly payments on that vehicle to be $700 per month. (Tr., p. 57). 10. Anna Burbett is the sole owner of A.B. Garbage Service, holding a certificate for McDowell County, except Gary. (Tr., p. 65). Ms. Burbett has 3 packers and 7 pickups and she services approximately 2,000 residential customers with 9 employees. (Tr., p. 67). All of Mrs. Burbett's commercial customers fall within the requested area of this certificate and the granting of the certificate would work a hardship on her. (Tr., p. 71). 11. Eddie Clay Hairston, Jr., doing business as Eddie Hairston's Garbage Service, has authority to pickup at Havaco, "13" and Munson. (Tr., p. 73). Eddie Hairston has a dump truck in his business and he services approximately 150 residential customers. (Tr., p. 77). Mr. Hairston feels that the granting of this application would be taking his customers away. (Tr., p. 79). 12. Mary Dollinger who resides in "13" (Moses) is very satisfied with the services she receives from Eddie Hairston. (Tr., p. 81). 13. Larry Hairston, doing business as Larry's Trucking Service, has authority to transport trash, rubbish and garbage within the city limits of Gary. (Tr., p. 84). Mr. Hairston has a 1984 Ford F-7,000, 23-yard packer, a 1982 Ford F-700 and a 1979 F-7,000 packers and he is in the process of purchasing another packer. Mr. Hairston estimated the value of his equipment to be $200,000. He is currently making payments on those m CHARLESTON -4-

5 trucks approximating $3,000 per month. (Tr., p. 87). Mr. Hairston has 4 employees and he works full-time in the business. (Tr., pp ). Mr. Hairston serves 800 customers. (Tr., p. 92). He picks up large items once a week after the customer has called City Hall and does not charge the customer extra if they have half a load or less. (Tr., p. 91). Mr. Law feels that an additional trash hauler in the area would hurt his business and that he is presently able to adequately serve all those within his operating area. (Tr., pp ). 14. Albert McDaniel lives in Gary and is receiving adequate garbage hauling services from Larry Hairston. 15. Gail Lawson lives at Gary Bottom is currently receiving garbage hauling services from Larry Hairston is satisfied with those services. 16. William C. Long lives in Gary and is currently receiving garbage services from Larry Hairston and is satisfied with those services. 17. There were 28 other witnesses available to indicate that they were satisfied with the trash hauling services they received from Larry Hairston. CONCLUSIONS OF LAW 1. Based upon the above findings 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 13, 15, 16 and 17, the Applicant failed to establish that the public convenience and necessity require the proposed service. Discussion: It is well established that one applying for a common carrier certificate over a defined area must establish to the satisfaction of the Commission that the public convenience and necessity require the proposed service. Weirton Ice ti Coal Company v. Public CHARLESTON -5

6 CHARLESTON -6- I! Service Commission, 240 S.E.2d 686 (1977). The Commission has interpreted this requirement to mean that the applicant must demonstrate 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 the applica- tion. Harless Excavating Company, Inc., M.C. Case 21256, April 13, The Applicant presented independent witnesses, but most stated that they were well satisfied with their present trash hauling services and did not feel that they needed additional carriers in the area. Other witnesses testified that large items were not picked up by the trash haulers and that garbage was left on the ground by their present trash hauler. Under Section 7.02 of the Commission's Rules and Regulations for the Government of Motor Carriers of Passengers and Property, a carrier is not required to /I pickup trash, rubbish or garbage which is not in a container, although all carriers are responsible for cleaning up any litter spilled while making pickups. Therefore, it is possible that a carrier may not have to pickup trash on the ground if it was not spilled while he is making his pickup. Under the regulations, a carrier is to negotiate with a residential customer a separate and/or additional charge for the occasional pickup of junked, abandoned or unwanted materials other than the normal weekly accumulation of trash, rubbish and garbage or such matters or materials that cannot be reasonably or conveniently picked up during the regularly scheduled operation. So therefore, the hauling of items such as a bed or windows would be subject to special arrangement. Since the customers did

7 not call the existing carrier about such items, it does not show a lack of service by the present trash haulers. Here, the public witnesses did not show a need for additional trash hauling service or that they were being inadequately served by existing carriers. The complaint relating to the large items is one which requires negotiation between the carrier and the customer and the wit- nesses never indicated that they had called the existing carriers about hauling the large items. The other complaints were vague and not suffi- -oient- to show need for an additional carrier. Although the Applicant is not required to demonstrate by posi- tive proof that the services furnished by the existing facilities is not reasonably adequate or efficient, he must show some kind of need to establish 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 or adequate. Here, the Applicant did not establish a need for his services. 2. Based upon the Finding 9, the Applicant has the financial ability, experience and fitness to provide a trash and garbage hauling service. Discussion: The Applicant must demonstrate that he or she has the financial ability, experience and fitness to provide a needed, useful and responsive public service. Ford, supra. Mr. Law has been employed for the past several years as a janitor at US Steel and although such experience is not in trash hauling, it nonetheless shows a working person who would be capable of operating a trash hauling service. Mr. Law has considered and begun negotiations which are necessary to acquire the i f CHARLESTON - I -

8 necessary equipment to run a trash hauling business and has sufficient cash to begin operations. Based upon the above findings of fact and conclusion of law and application is hereby denied. Even though the fitness of the Applicant was shown, Applicant did not establish a public need for the proposed service. ORDER IT IS, THEREFORE, ORDERED that the application of Dodford L. Law, doing business as Law Garbage Service, dated July 24, 1984, is hereby 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 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 CHARLESTON -8-

9 Examiner's Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commission. ACR: dfs Ann Rodak Hearing Exmainer - CHARLESTON -9-