PUBLIC SERVICE COMMISSION CHARLES TON. Entered: June 1, 2009

Transcription

1 ~~ PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLES TON alJ O60109, wpd CASE NO MC-C Entered: June 1, 2009 EXCEPTIONS FILED PLATINUM LIMOUSINE, LLC, Hurricane, Putnam County. Application for a certificate. RECOMMENDED DECISION On May 21, 2008, Platinum Limousine, LLC (Applicant or Platinum), filed an application for a certificate to operate as a common carrier by motor vehicle - to operate as a common carrier by motor vehicle in the transportation of passengers in limousine service between points and places in Cabell, Kanawha, Putnam and Wayne Counties, on the one hand, and points and places in West Virginia, on the other hand, subject to the following exclusions : (a) excluding the transportation of employees of railroad companies for railroad-work-related purposes, and (b) further excluding the transportation of passengers whose transportation is to be paid for, or reimbursed by, Medicaid or Medicare. Rates to be charged for the service sought by this application are as follows: Passenger C30 stretch: $95.00 per hour 4-hour package $ hour package $ hour package $ Passenger H3 stretch: $ per hour 4-hour package $ hour package $ hour package $ Passenger H2 stretch: $ per hour 4-hour package $ hour package $ hour package $ Passenger H2 stretch: $ per hour Public Semce Commission of West Vugmia

2 4-hour package $ hour package $ hour package $ On June 4, 2008, C&H Company filed a protest to the application. On June 12, 2008, Hickory Limousine Service filed a protest to the application. On June 13, 2008, Ambassador Limousine filed a protest to the application. On June 16, 2008, Bilco Inc., dba Taxi One, filed a protest to the application. On June 25, 2008, a notice of appearance was filed by the attorney representing the Applicant in this case, Celeste Webb-Barber of Vital & Vital, L.C. On June 27, 2008, Richard M. Allen, Esquire, Staff Attorney, filed an Initial Joint Staff Memorandum. The Applicant needed to provide three items of additional information before Staff could complete its processing of this application. By Commission Order dated July 9, 2008, this matter was referred to the Division of Administrative Law Judges for a decision to be rendered on or before December 17, On July 10, 2008, Chandler Limousine Service, LLC, filed a motion for intervener status. On July 11, 2008, the Applicant filed the information requested by Staff. The Applicant amended the application to reflect that it would not be arranging trips beginning or ending in Mercer County. The Applicant intends to operate in the Huntington Tri-State and the Kanawha Valley areas. On August 19, 2008, Staff Attorney Allen filed a Final Joint Staff Memorandum. Staff recommended that a publication order be prepared which describes the proposed certificate and rates as set forth above. By Order dated September 3, 2008, the Applicant was required to give notice of the filing of the application by publishing a copy of the Notice of Filing one time each in newspapers, duly qualified by the Secretary of State, published and generally circulated in Cabell, Kanawha, Putnam and Wayne Counties. On September 5, 2008, counsel for the Applicant filed a notice of substitution of counsel, although the Law Firm of Vital & Vital, L.C., continued to represent the Applicant at that time. On September 30, 2008, the Applicant submitted proper affidavits of publication reflecting that publication had been made in accordance with the Commission's requirements. of West Vlrgmia 2

3 ~~ ~ By order dated October 2, 2008, this matter was set for a hearing to be held in Hearing Room No. 2, Building, 201 Brooks Street,, West Virginia, on October 30, On October 10, 2008, Bilco Inc., dba Taxi One, withdrew its protest to the application upon the amendment of the authority to exclude Mercer County. In a letter filed October 22, 2008, Protestant C&H Company advised that it had reached an aqreement with the Applicant wherebv, if the following additional restrictions were added td the requested authority, C&H Company would withdraw its protest. The restrictions are as follows: PROVIDED, that there is excluded from this authority (1) the transportation of railroad employees for railroad-work-related purposes, (2) the transportation of persons whose transportation is to be paid for, billed to, or reimbursed by Medicaid or Medicare, (3) the direct curb-side and/or insidethe-terminal solicitation of passengers in or around Yeager Airport (although this exclusion does not prevent transportation of passengers to or from Yeager Airport by prearrangement), and (4) the use of vans, non-stretch SWs or standard passenger sedans, up to and including Lincoln Town Cars. By Order dated October 22, 2008, Platinum Limousine, LLC, was directed to advise the Administrative Law Judge whether it accepted the restrictions set forth in C & H s letter. In a letter filed October 23, 2008, Platinum advised that it accepted the proposed restrictions that C & H set forth in its letter of October 21, The hearing was held as scheduled on October 30, The Applicant appeared by Mr. Todd Joyce, its owner, and by counsel, Jason L. Leasure, Esquire. Protestant C & H Company appeared by its counsel, James D. Kauffelt, Esquire. Protestant Chandler s Limousine appeared by its counsel, Arden J. Curry, Esquire. Protestant Hickory Limousine appeared by its counsel, Mr. Chip Williams, Esquire. In a letter filed October 31, 2008, the Applicant advised that it would not be filing a brief. In a letter filed November 3, 2008, Chandler Limousine Service advised that it would not file a written brief. By Recommended Decision dated December 17, 2008, the application in this case was denied. On December 23, 2008, the applicant filed exceptions to the Recommended Decision. By Commission Order dated January 23, 2009, this case was remanded to the Administrative Law Judge for further hearing so that the Applicant could present public witnesses in support of its certificate application. of West Virpia 3

4 The Commission established a decision due date of April 30, By Order dated January 28, 2009, this matter was set for a hearing to be held in Hearing Room No. 2, Building, 201 Brooks Street,, West Virginia on February 19, On February 10, 2009, counsel for the Applicant advised that he was withdrawing as counsel and requested a continuance of the hearing scheduled for February 19, 2009, in order to allow the Applicant to obtain replacement of counsel. The motion for a continuance of the hearing subsequently was amended to request an extension of the Administrative Law Judge's decision due date. By Commission Order dated February 11, 2009, the Administrative Law Judge's decision due date of April 30, 2009, was extended until June 29, By Procedural Order dated February 12, 2009, the hearing scheduled to be held on February 19, 2009, was cancelled. The Order also required the Applicant to advise the Administrative Law Judge the name of its new counsel so the matter could be reset for hearing. On March 3, 2009, the Applicant advised that it had obtained new counsel. In a motion filed March 26, 2009, counsel for Hickory Limousine, a Protestant to the application, requested a continuance df the hearing date of April 6, 2009, citing unavailability of counsel on the scheduled hearing date. By Order dated March 26, 2009, this matter was set for hearing to be held in, West Virginia, on April 7, The hearing was held as scheduled. counsel, Brian D. Morrison, Esquire. The Applicant appeared by On May 15, 2009, Chandler Limousine Service filed its brief in this matter. No other briefs were filed in this matter. The Protestant, Hickory Limousine, appeared by its counsel, Chip Williams, Esquire. Chandler Limousine appeared by its counsel, Arden J. Curry, Esquire. C&H appeared by its counsel, James D. Kauffelt, Esquire. On April 21, 2009, the Court Reporter submitted a 165-page transcript (Tr.) of the April 7, 2009 hearing and a one-page certificate that the transcript is an accurate record of the April 7, 2009 hearing. EVIDENCE Mr. Todd Joyce is the president and owner of Platinum Limousine. It is based in the Teays Valley area and has been in operation since early Platinum operates three limousines: a 2007 Chrysler 300; a 2007 H3 Hummer; and a 2007 H2 Hummer. All of the vehicles have extension packages. (See, Tr. p. 15). After the first hearing held in this case on October 30, 2007, Mr. Joyce was aware that he needed Public Service Commission authority in order to operate, but he continued to operate, 4

5 (See, Tr. p. 34). Platinum did have advertisements on billboards in Huntington and, but the contracts for these billboards have not been renewed and they have been taken down. (See, Tr. p. 28). Witnesses Mark Snyder and Ms. Susan Miller had each used Platinum Limousine Service which was arranged for by someone else. They did not know whether there was a need for more limousine service in the area based upon their experience. (See, Tr. pp , 58-64). Mr. Arnold Legros had used Platinum Limousine Service, but he had also used Chandler Limousine Service and found Chandler Limousine's service to be satisfactory and could not testify that it was inadequate. (See, Tr. p. 74). Although he had called Chandler three to four times and was unable to have them provide service, he was able to find a limousine on each of those occasions. (See, Tr. pp. 80, 85). Mr. Legros has not had a need for a limousine recently. The service provided by Chandler was good service. (See, Tr. pp ). Ms. Sarah Dillard used Platinum Limousine Service for a trip to for a concert and did not make the arrangements for this trip. (See, Tr. p. 97). She does not have need for a limousine on a regular basis and could not testify as to the service provided by Chandler, whether it was adequate or inadequate, nor could she testify as to the adequacy of the service of Hickory Limousine Service. (See, Tr. pp ). Ms. Dillard had also used Platinum Limousine Service for a trip to with Ms. Holiday, which had been arranged by someone else. (See, Tr. p. 97). Ms. Terri Dodwell rented a limousine from Platinum Limousine Service for her husband's 50th birthday for a trip from the Teays Valley Area to Huntington, This arrangement was in February, She indicated that she had not researched whether there was a need for another limousine service in the area and had never used Chandler, so she could not say whether its service is adequate. Ms. Dodell does not have an extensive need for limousine service. (See, Tr. pp. 99, 109, 111). Although called as a witness, Ms. Debbie Joyce is involved with the operations of Platinum Limousine Service and, therefore, is not a public witness in this case. She described the day-to-day operations of the Applicant. The Applicant's prom season is fully booked. (See, Tr. p. 112). Mr. Gary Chandler owns and operates Chandler Limousine Service which has been in operation since 2003 and has authority in 47 counties in West Virginia. (See, Tr. p. 135). The authority that he has and is currently operating under includes Cabell, Putnam and Kanawha Counties. His business is based in. The limousines that he uses are all Lincolns. The prom season is the time of greatest demand for limousine companies and is the time that he is typically booked up. When he is booked up, he will try to refer customers to another limousine service. (See, Tr. p. 139). Except for the prom season and June weddings, Chandler Limousine can handle the business without turning any business away. (See, Tr. p. 143). Mr. Chandler indicated that, because he has authority, he must pay a

6 franchise fee and has expenses to pay that a non-regulated limousine service does not have to pay. (See, Tr. p. 147). With the testimony of Mr. Chandler, no further evidence was presented in this matter and the case was submi.tted for a decision. DISCUSSION OF APPLICAKLE LAW BURDEN OF PROOF It is well-established in this State that one applying for a common carrier certificate over a defined territory must establish, to the satisfaction of the Commission, that public convenience and necessity require the proposed service. Weirton Ice and Coal Supplv Companv v. Public ServiGe Commission, 161 W.Va., 240 S.E.2d 686 (1977), and West Virsinia Code 524A-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 Excavati,nq Company, Inc., M.C. Case No , April 23, The pertinent statutory language regarding the granting of applications for certificates of convenience and necessity is set forth in West Virqinia Code 24A-2-5(a), which provides, in part, as follows: [Ilf the Commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the right granted by such certificate such terms and conditions as in its judgment, the public convenience and necessity may require... Before granting a certificate to a common carrier by motor vehicle, the commission shall take into consideration existing transportation facilities in the territory for which a certificate is sought and, in case it finds from the evidence that the service furnished by existing transportation facilities is reasonably efficient and adequate, the commission shall not grant such certificate. On December 20, 1989, the Supreme Court of Appeals issued a decision in which the Court stated that the quality of existing services was a controllinq factor in reaching a decision on whether or not a competing certificate of convenience and necessity should be granted under West Virsin,ia Code 24A-2-5(a). Stowers and Sons Truckinq Company, Inc. v. Public Service Cornmission of West Virqinia, 387 S.E.2d 841 (1989). The Court determined that the has a mandatory duty, established by the West Virqinia Code 24A-2-5, to consider evidence as to the sufficiency of existing service and, if the services are adequate, the certificate shall not be granted. Pubhc Service Commission of West Virgnia 6

7 I_ The Supreme Court of Appeals issued a decision in which it stated that a common carrier engaged willfully in illegal operations may be found unfit for the purpose of obtaining a certificate of public convenience and necessity. Stephens v. PubAic Servi, Commission of West Virsinia, 177 W. Va. 698, 356 S.E.2d 191; 1987 W. Va. LEXIS S16 (1987). DISCU-N The application in this case filed by Platinum Limousine was for a certificate of public convenience and necessity to operate as a common carrier of a motor vehicle in the transportation of passengers in limousine service. At the first hearing held in this case, on October 30, 2008, the Applicant did not have authority and was operating at that time without authority. At that hearing, the Applicant did not present any public witnesses and the application was dismissed. On exceptions, the Commission found that a further hearing should be held to give the Applicant a chance to present public witnesses. Another hearing was held on April 7, At that hearing, the Applicant presented the testimony of nine witnesses. Two of these witnesses were not public witnesses, as they were the owner of the Applicant arid his wife. The remaining witnesses testified to having used Platinum Limousine on various occasions. Each of these occasions was at a time when the Applicant did not have authority to operate a limousine service. The witnesses' testimony, except for being someone who preferred riding in a Hummer limousine, could not give any solid testimony that there was a need in the area for the authority being applied for, as they had not actually made the arrangements for the limousines. Overall, the witnesses did not really have a need for limousine service, but had ridden in Platinum's limousines as a part of promotions or events in which they participated. The principal problem for the Applicant in this case is that he continued to operate illegally without authority after becoming aware that this was necessary on October 30, Although the Applicant had discontinued his active advertising campaign to the public, he was still providing limousine service. Also, no public witness testified that the existing services are insufficient or inadequate. Also testifying at the hearing was a representative of Chandler Limousine which has authority to provide limousine service in the area applied for by the Applicant. Mr. Chandler indicated that his limousine business is down approximately 40%. Upon reviewing the evidence by the Applicant, there were no witnesses who indicated that they had a need for limousine service which was not met. Since most of the testimony presented by the Applicant concerned his illegal operations, under the SteDhens case, this is evidence of his unfitness to operate as a holder of a certificate of public convenience and necessity. The Commission cannot reward the Applicant for his unlawful activities. When eliminating the testimony of those witnesses who had used the Applicant when he provided illegal service, there is no evidence presented by the Applicant to meet his burden of proof of establishing that there exists in the area of the authority, as amended, 7

8 a need for another limousine service that cannot be provided by the limousine services currently holding authority from this Commission. Based upon the above, the Administrative Law Judge is of the opinion and finds that the Applicant has failed to meet his burden of proof and the application in this case must be dismissed. - FINDINGS OF FACT 1. Platinum Limousine, LLC, filed an application for a certificate to operate as a common carrier by motor vehicle in the transportation of passengers in limousine service between points and places in Cabell, Kanawha, Putnam and Wayne Counties, on the one hand, and points and places in West Virginia, on the other hand. (See, application filed May 21, 2008). 2. Protests were filed to the application by C&H Company; Hickory Limousine Service; Ambassador Limousine; and Bilco, Inc., dba Taxi One. (See, protests filed June 4, 12, 13 and 16, 2008). 3. Mr. Todd Joyce, the owner of Platinum Limousine, testifed that, from October 30, 2008, he knew that he had to have Public Service Commission authority but has continued to operate without that authority. (See, transcript p. 24). 4. The Protestant, Chandler Limousine Service, has seen a decrease in its business of approximately 40%, the decline beginning in (See transcript p. 143). 5. No public witness testified that the service provided by the existing carriers is inadequate or insufficient. (See, Tr. generally). CONCLUSIONS OF LAW 1. Since the Applicant knew as of October 30, 2008, that it needed to have authority to operate a limousine service in West Virginia, the testimony of the witnesses concerning use of the Applicant after that date would be testifying of an illegal activity of the Applicant, which cannot be used to support an application for authority. 2. Since the Applicant has failed to show by its witnesses that the existing service is inadequate or insufficient; since the Applicant made no showing that a need exists for the limousine service applied for, as amended, that is not being currently provided by the currently certificated limousine services, the Applicant has failed to meet its requisite burden of proof in this case. Therefore, the application must be dismissed. ORDER IT IS, THEREFORE, ORDERED that the application of Platinum Limousine, LLC, filed on May 21, 2008, be, and the same hereby is, dismissed, without prejudice, and removed from the Commission's docket of open cases. 8

9 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 an Administrative Law Judge'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 Administrative Law Judge's Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commission. RWG : cdk Administrative Law Judge 9