E PE2ED OF WEST VIRGINIA CHARLESTON AL Entered: August 16, 1994 M.C. CASE NO. 24694-AC CARDINAL BUS TOURS, INC., a corporation, 7125-B Sissonville Drive, Charleston, Kanawha County. Application for the amendment of P.S.C. M.C. Certificate No. 6957. RECOMMENDED DECISION PROCEDURE On November 22, 1993, Cardinal Bus Tours, Inc. (Cardinal), a corporation, Charleston, Kanawha County, filed an application for the amendment of P.S.C. M.C. Certificate No. 6957. Said certificate, as amended and clarified, will read as follows: to operate as a common carrier by motor vehicle in the transportation of passengers in charter bus service between points and places in West Virginia, in lieu of existing authority under said certificate. By Order dated January 3, 1994, this matter was referred to the Division of Administrative Law Judges for a decision to be rendered on or before August 23, 1994. The Applicant gave notice of the filing of its application in accordance with the Commission s requirements and protests were received, whereupon the matter was set for hearing to be held in the Commission s Hearing Room, 201 Brooks Street, Charleston, West Virginia, on June 6, 1994. The hearing was held as scheduled. Cardinal Bus Tours, Inc., appeared by its counsel, Andrew Nason, Esquire. The Protestants, Central Cab Company and Gold Star Tours, Inc., appeared by their counsel, Mark E. Kauffelt, Esquire. EVIDENCE Mr. Phillip Brown is the President of Muskingham Coach Company (Muskingham) that provides intrastate charter bus service in West Virginia, as well as in Ohio, and interstate service throughout the United States from Coshocton, Ohio. Coshocton is located approximately 165 miles from Charleston. Mr. Brown explained that, because of the lack of sufficient motor coaches, Muskingham Coach Company has had to call on
.l the Applicant to provide assistance from time-to-time and he has had no complaints regarding Cardinal's service. Mr. Brown testified that it has been his experience that there is a greater demand for bus service from the Kanawha Valley than there are available buses. Mr. Brown indicated that, when he receives a request for motor coaches and there are none available, if it is a steady customer, he will refer that customer to another bus company. However, if it is a regular customer, he will try and arrange for the coaches needed, himself. Mr. Brown indicated that, on these past instances of need, he has not contacted Central Cab Company (Park) in Parkersburg to provide this service. Only three to five percent of the business of Muskingham is intrastate West Virginia, based upon its yearly revenues. From its West Virginia business, Muskingham receives between $100,000 and $150,000 per year. Muskingham keeps one bus in West Virginia at its driver's house. Muskingham does not advertise in West Virginia since it primarily services one customer, Sunshine Tours, for trips beginning or ending in the Kanawha Valley. (Tr., pp. 5-12). Mr. Brown indicated that he receives calls two to three times per week. He has also used Cross Country Tours for extra buses that he has needed. Mr. Brown explained that, during 1994, he has called Park for interstate service on one occasion. Mr. Brown explained that the last time that Park refused service to him was in March of 1994. Mr. Brown indicated that he comes to West Virginia three to four times per year to talk to travel agents and relies upon these agents to generate Muskingham Coach Company's business in West Virginia. Mr. Brown opined that there is a need for additional service in West Virginia based upon the lack of availability of coaches. Mr. Brown further testified that, although there is a demand for coaches in West Virginia, it has been a management decision of Muskingham Coach Company to concentrate its efforts elsewhere, rather than purchase more buses and station them in West Virginia. (Tr., pp. 12-22). At one time Muskingham had an office in Hurricane with three buses, but it was later determined that it would be better for the Company to keep all of its buses in Coshocton. At the present time, Mr. Brown indicated that Muskingham cannot handle any more business, which is the reason it no longer advertises. Mr. Brown concluded his testimony by indicating that, on the occasions when he has used Cardinal, he has had a contract with Cardinal to use its buses and Mr. Brown had the impression that Cardinal had the authority to do the hauls required. (Tr., pp. 5-29). Ms. Christy Gray has been a group tour representation at the AAA Travel Agency for one year. Ms. Gray indicated that, in her position, she does not book many intrastate trips, as most of the trips are out of state. She had no other evidence to present of probative value concerning intrastate need. (Tr., pp. 29-46). Mr. Roger Boyd had no evidence of probative value to contribute concerning the need for intrastate charter bus service, since all his use was interstate. (Tr., pp. 46-53).
Mr. Larry Boggess was called as a witness for the Applicant. In his association with the Church of Jesus Christ of Latter Day Saints, he arranges a bus tour to Washington, D.C., and in his testimony provided nothing of probative value pertaining to intrastate bus needs. (Tr., pp. 54-60). Ms. Darlene Franklin is a Bell Atlantic-West Virginia employee, as Secretary to the Director and also the Chairman of the Entertainment Committee for the Telephone Pioneers. Ms. Franklin testified about arranging some intrastate trips. She stated that, because she arranges the bus trips three to six months in advance, the only time she faces a problem of needing a bus is when additional coaches are needed on short notice. On those occasions, Ms. Franklin indicated that she has not had difficulty in getting a second bus. (Tr., p. 62). Other than these needs, the other testimony of Ms. Franklin pertained to interstate moves. (Tr., pp. 60-73). Mr. Heath Brown is the General Manager of the Charleston Wheelers professional baseball team. Mr. Brown explained that, as the General Manager, he arranges buses for the team's travel. However, since there are no professional baseball teams in West Virginia, at this time, all of this testimony pertained to interstate bus travel and is not probative to the issue in this case. (Tr., pp. 73-88). Mr. James Hamilton and Ms. Dorothy Setzer each testified about interstate bus needs which are not probative to this case. ITr., pp. 88-99, 101-107). Mr. Larry Guthrie is part owner of Lexco Travel in St. Albans, and he explained that, of the fifteen to twenty tour packages that his agency has put together, only five involved intrastate bus usage and he used West Virginia Coach on all of these trips, which had provided adequate service. (Tr., pp. 107-117). Mr. Brownie Parsons had need on May 20, 1994, to arrange bus transportation to take the attendees of his reunion of his infantry division to Blinko Glass and to the New River Gorge Bridge. This was the only occasion that he has had to arrange charter bus service recently and he indicated that, on this occasion, the arrangements made with Cardinal had to be cancelled due to lack of participation in the reunion. (Tr., pp. 107-122). Ms. Karen Spencer owns and operates Anywhere Tours, which arranges particular one-day trips for any pre-formed groups, i.e., church and senior citizens groups. It is a part-time business for her and she had arranged approximately 25 trips, frequently using West Virginia Coach and then switching to Park. She has been pleased with the service received from Park, as well as Cross Country Express which has been used on occasion. Ms. Spencer indicated that there has not been a time when she was arranging a trip that she was turned down because of the unavailability of a motor coach. (Tr., pp. 122-134).
Mr. James Pike is President of Christian Outreach Ministry. Mr. Pike indicated that his ministry attends numerous evangelistic services each year, principally in Kanawha County, Huntington and Beckley. Mr. Pike explained that, for transportation within the State, the ministry has been leasing two sixteen passenger vans to accommodate its needs for these trips and Mr. Pike testified that, on two scheduled trips the ministry takes to Myrtle Beach in July, and on other trips to Ohio and Kentucky, the Ministry has been able to accommodate its needs using the aforementioned vans. (Tr., pp. 134-138). Mr. Charles Boggs testified that he owns and operates a heavy truck parts business at the Tuppers Creek Exit of 1-77 and is also a 50% owner of Cardinal Bus Tours, Inc. Mr. Boggs further testified that Cardinal uses approximately 99% of the service area that he has at his truck parts business. At that location, Cardinal also has steam cleaning equipment and a dump station for the on-bus toilets. Mr. Boggs testified that Cardinal Bus Tours currently has six buses. Cardinal purchased its last bus approximately one month before. Cardinal Bus Tours presently has a bus maintenance program in place. At the end of each trip, the driver of the bus lists any required things that must be done mechanically. Mr. Boggs is personally involved in carrying out the maintenance along with five other employees. Mr. Boggs explained that, because of the overall downturn in the economy and the past coal strike, his parts business has declined and he wanted to get into a business where he could use the mechanics who worked for him. Mr. Boggs further testified that all the buses that Cardinal presently owns and operates are in good operating condition. In concluding his testimony, Mr. Boggs explained that he is primarily concerned with the mechanical operations of Cardinal and not the operation of the office. (Tr., pp. 138-148). Mr. Page Ellis drove a bus for Trailways for two years and for Greyhound Bus Lines for fours years. He received his bus driving training at facilities operated by Trailways and Greyhound. Mr. Ellis explained that, when he worked at Greyhound, he worked with Cardinal Bus Tours' previous owner, Mr. Ken Muncy. After Mr. Muncy died, Mr. Ellis purchased his business with Mr. Boggs and moved it to Kanawha County from its original location in Huntington. Mr. Boggs explained that, when the bus service was purchased, he was told by Mrs. Muncy that all he had to do was buy insurance and put a license on the bus and he had full rights, both intrastate and interstate. Mr. Ellis indicated that, when he became aware of this misrepresentation as to Cardinal's authority, he came to the Public Service Commission and applied for the proper authority. However, Mr. Ellis indicated that, since that time he has been picking up customers within West Virginia and transporting them within West Virginia. Mr. Ellis explained that he will, on occasion, drive a bus if one of Cardinal's drivers does not have enough hours left to qualify to drive another trip. (Tr., pp. 148-153). All the buses that Cardinal owns have been financed. Mr. Page Ellis explained that he operates the office of Cardinal Bus Tours and that Cardinal is presently generating enough income to meet its obligations. Mr. Ellis explained that Cardinal turned down seventeen trips in April, twenty-three trips in May and ten trips in June, because Cardinal did not
, r have the buses available. Mr. Ellis further testified that Cardinal has been called by West Virginia Coach for buses because it did not have enough themselves. At the time West Virginia Coach called, Cardinal Bus Tours did not have any buses available either. Besides West Virginia Coach, Mr. Ellis indicated that Cardinal Bus Tours has hauled also for Muskingham and Lincoln Coach Companies. When Muskingham called Cardinal, it had a broken down bus and Cardinal completed the trip for it. All the buses of Cardinal are presently stationed in Kanawha County. (Tr., pp. 153-157). Applicant Exhibit No. 1 was introduced which was a series of pictures showing some of the equipment owned and operated by Cardinal Bus Tours. Mr. Ellis further testified that, approximately once a week, he gets a call for bus service and he does not have a bus available. Mr. Ellis opined that there is a demand for a bus company located in Charleston. Cardinal will purchase any additional buses, as need arises in the future. Mr. Ellis further testified that, of the requests for bus service made in May, he did not believe any were intrastate, but, in June, two of the requests were for intrastate moves. Mr. Ellis explained that it was in December of 1993 that he discovered that Cardinal Bus Tours did not have the proper authority. In the period of time from January 1994 through June 1994, Cardinal continued to provide bus service from Kanawha County to destinations within West Virginia on nine different dates. Mr. Ellis explained that the majority of trips that Cardinal has made have been interstate groups to the Wheeling Christmas Festival of Lights. Cardinal has also taken groups to games at Morgantown and Marshall. Mr. Ellis indicated that Cardinal has a trip scheduled for October 22, 1994, to take a group to the Miami/West Virginia football game. Mr. Ellis explained that the ICC authority applied for by Cardinal Bus Tours was approved as of July 1, 1993. When Cardinal makes a trip to the Wheeling Christmas Festival of Lights it goes up 1-79 to 1-70 at Cambridge, Ohio, and then to Wheeling. (Tr., pp. 148-187). Ms. Sue Lawson testified that she is employed at the World Travel Service (World Travel). It arranges 200 to 300 bus tours per year which involve both intrastate and interstate travel. While most of its tours are interstate, Ms. Lawson indicated that, during the fall and winter seasons, World Travel has arranged tours around West Virginia. In fact, its scheduled to run thirty buses in the month of October to Cass Railway, for a fall foliage tour. World Travel Service has been in business for thirteen years. Mr. Lawson explained that World Travel was dealing with Gold Star but its business got so large that it needed more buses, so World Travel contacted Park to see if it could handle World Travel's business as well as its own. Park told World Tours that it could provide the buses and it has done so. Ms. Lawson explained that, in the two and one-half years that Park has been used, there has been only one occasion when it was unable to provide World Travel with all the buses that it needed. Ms. Lawson further testified that, based upon her experience in the travel agency business, she did not see that there was a need for additional buses, as World Travel has had all its needs met. Ms. Lawson testified that, when World Travel had used Gold Star for tours, it did not have any trouble. (Tr., pp. 187-204).
Mr. Kiester Green is the Director of Scheduling with A & L Tours. As such he usually is responsible for setting up hotels and buses for tours arranged. A & L Tours is a tour broker conducting over 100 bus trips per year. Mr. Green explained that A & L Tours has been using Central Cab since it purchased Park Tours. Prior to that it had been using Greyhound until it went on strike in 1989. The tours arranged by A & L Tours involve both interstate and intrastate travel. Mr. Green indicated that, since A & L Tours has been using Central Cab, it has had no problems with Park's service. (Tr., pp. 204-207). Mr. Green further testified that A & L Tours has only a few trips beginning in West Virginia, but has a lot of trips to Washington D.C. and Williamsburg. Mr. Green explained that A & L Tours has always been provided the equipment it needed and the quality of service provided by Park is "very good". Mr. Green concluded his testimony by indicating that there is presently enough bus service to meet A & L Tour's needs. (Tr., pp. 207-218). DISCUSSION OF APPLICABLE 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 Supply Company V. Public Service Commission, 161 W.Va., 240 S.E.2d 686 (1977), and West Virginia Code S24A-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. 18152, April 9, 1981. 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. 21256, April 23, 1982. 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: [I]f 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 of West Virginia issued a decision in which the Court stated that the quality of existing services was a controlling factor in reaching a decision on whether or not a comdetina certificate of convenience and necessity should be granted under W&t Virginia Code S24A-2-5 (a). (Stowers and Sons Trucking Company, Inc. V. Public Service Commission of West Virginia, 387 S.E.2d 841 (1989)). The Court determined that the Public Service Commission has a mandatory duty, established by the West Virqinia Code 524A-2-5, to consider evidence as to the sufficiency of existing service and, if the services are adequate, the certificate shall not be granted. DISCUSSION Cardinal Bus Tours, Inc., seeks to amend its current Public Service Commission authority to allow it to provide state-wide charter bus service. At the hearing, the Applicant presented the testimony of sixteen witnesses. However, several of these witnesses had only arranged for interstate charter bus service; therefore, their testimony has no probative value as pertains to the need for intrastate charter bus service. There are several bus companies, Central Cab or Park Tours, Gold Star Tours, Cross Country Express, West Virginia Coach and Muskingham Coach Company, which each have Public Service Commission authority to provide intrastate charter bus service in West Virginia. Ms. Karen Spencer, who operates a tour service and arranges bus trips within West Virginia, expressed satisfaction with the services received from Park Tours and Cross Country Express, two of the intrastate certificated carriers. The principal negative testimony presented by the witnesses at the hearing was concerning the reliability of the equipment used by Gold Star Tours. However, since Gold Star Tours is not the only company providing charter bus service in West Virginia and the other bus companies appear to be providing adequate and efficient service, the experiences testified to concerning this one company would not require that additional authority be granted in this case. Since the evidence presented did not show that there presently exists a need for additional charter bus service that cannot be provided by the certificated charter bus services serving the area of the application, the authority must be denied. Further, the owners of Cardinal Bus Tours admitted in their testimony that Cardinal has only limited Public Service Commission authority and that Cardinal had been providing intrastate service outside the terms of its certificate on numerous occasions since beginning business and this continued even after discovering that Cardinal did not have the authority that it was thought to possess. However, this issue need not be discussed further in this decision, since there is such a complete lack of evidence to support the application.
FINDINGS OF FACT 1. On November 22, 1993, Cardinal Bus Tours, Inc., a corporation, Charleston, Kanawha County, filed an application for the amendment and clarification of P.S.C. M.C. Certificate No. 6957, to allow it to provide charter bus service on a state-wide basis in West Virginia. (See, Application). 2. Mr. Phillip Brown, President of Muskingham Coach Company, indicated that Muskingham had intrastate authority to provide charter bus service in West Virginia and when Muskingham had more business than buses available, Mr. Brown had contacted Gold Star and Cross Country and was provided with the needed buses. (Tr., pp. 6, 17). 3. Messrs. Pike, Boyd, Boggess, Hamilton, and Guthrie each testified for the Applicant, but their experience had been in arranging for interstate bus travel; therefore, their testimony is not probative to intrastate need. ( Tr., pp. 40, 52, 59-60, 74, 99, 104, 110). 4. Ms. Karen Spencer owns and operates Anywhere Tours and arranges bus trips intrastate West Virginia, using West Virginia Coach, Park Tours and Cardinal Bus Tours, and had not had a time that she was turned down for service because of the unavailability of a motor coach. ( Tr., pp. 132-133). 5. Cardinal Bus Tours only has limited Public Service Commission authority to provide intrastate charter bus service, but from January 11, 1994, to June 3, 1994, Cardinal provided intrastate bus service outside the terms of its existing certificate on nine occasions. (Tr., p. 166). 6. Cardinal Bus Tours received its interstate authority on July 1, 1993. (Tr., p. 185). 7. Ms. Sue Lawson opined that, based upon the experience of arranging 200 bus tours within West Virginia per year, she did not see that there was a need for additional buses in the area. (Tr., p. 191). CONCLUSIONS OF LAW The Administrative Law Judge is of the opinion and finds that: 1. The evidence presented by the Applicant did not establish that a need exists for additional charter bus service in West Virginia. 2. The presently certificated charter bus services in West Virginia are providing adequate and efficient service; therefore, the application must be denied. ORDER IT IS, THEREFORE, ORDERED that the application for the amendment of P.S.C. M.C. Certificate No. 6957, filed on November 22, 1993, by Cardinal
IL' r. Bus Tours, Inc., a corporation, Charleston, Kanawha County, 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 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:dfs Administrative Law Judge 11 PUBLIC SERVICE COMMISSION