STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC UTILITIES COMMISSION
505 VAN NESS AVENUE
SAN FRANCISCO, CA 94102-3298
March 13, 2009 Agenda ID #8381
TO PARTIES OF RECORD IN DRAFT RESOLUTION ALJ-236
This draft resolution regarding Citation FC-197 issued to Adriana Fortson & Benecia Toms, a Partnership dba Chris Moving Systems and Chris Moving Systems, Inc., will be on the agenda at the April 16, 2009 Commission meeting. The Commission may then vote on this draft resolution, or it may postpone a vote.
When the Commission acts on the draft resolution, it may adopt all or part of it as written, amend or modify it, or set it aside and prepare its own order. Only when the Commission acts does the resolution become binding on the parties.
You may serve comments on the draft resolution. Opening comments shall be served no later than April 1, 2009, and reply comments shall be served no later than April 6, 2009. Service is required on all persons on the attached service list. Comments shall be served consistent with the requirements of Pub. Util. Code § 311(g) and Rule 14.5 of the Rules of Practice and Procedure.
Finally, comments must be served separately on Administrative Law Judge Walwyn at cmw@cpuc.ca.gov, and for that purpose I suggest hand delivery, overnight mail, or other expeditious method of service.
/s/ MICHELLE COOKE for
Karen V. Clopton, Chief
Administrative Law Judge
KVC:sid
Attachment
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Resolution ALJ-236
Administrative Law Judge Division
April 16, 2009
R E S O L U T I O N
RESOLUTION ALJ-236. Affirming Citation FC-197 issued to Adriana Fortson & Benecia Toms, a Partnership dba Chris Moving Systems and Chris Moving Systems, Inc.
SUMMARY
This Resolution resolves the appeal of Field Citation 197 (FC-197) issued to Adriana Fortson & Benecia Toms, a Partnership dba Chris Moving Systems and Chris Moving Systems, Inc. by the Commission's Consumer Protection and Safety Division (CPSD) on June 26, 2008.1 FC-197 was issued to Chris Moving Systems with a fine in the amount of $3,000 for 252 violations of the Public Utilities Code and Maximum Rate Tariff 4 (MAX 4) during the period October 1, 2007 through February 29, 2008. Specifically, FC-197 charges Chris Moving Systems of (1) operating as a corporation before obtaining the proper authority from the Commission in violation of Public Utilities Code Section 5133 (Section 5133) (30 counts), (2) hiring employees without first securing and filing evidence of Workers' Compensation Insurance coverage with the Commission in violation of Section 5135.5 (13 counts), (3) deficiencies on moving forms in violation of Sections 5139 and 5143 and MAX 4, Items 128, 130, 132, and 465 (182 counts), and (4) failure to give customers the "Important Information for Persons Moving Household Goods Booklet" and retaining the receipt for such booklet, in violation of Section 5143 and MAX 4, Item 88 (27 counts).
Based on the hearing record, we find that the above violations occurred and the level of fine imposed is reasonable based on the number and type of violations, and Chris Moving Systems compliance history. Therefore, we affirm FC-197 in full. We direct Chris Moving Systems to pay the $3,000 fine in full within 30 days of this resolution or to begin to make payments within 30 days based on an approved written payment plan with CPSD.
Finally, this resolution finds that evidence introduced at hearing related to the recent revocation of the partnership's Commission license for nonpayment of fees and problems with the corporation's license application are issues outside the scope of this appeal process. These issues will be separately addressed by CPSD, as discussed at hearing.
BACKGROUND
Pursuant to Resolution ALJ-187, issued by the Commission on September 22, 2005, CPSD is authorized to issue citations to various classes of transportation carriers for violation of the Public Utilities Code and/or Commission orders. In turn, a carrier issued such a citation may accept the fine imposed or contest it through a process of appeal.
On July 14, 2008, Chris Moving Systems timely appealed FC-197 issued on June 26, 2008. When contacted by the Administrative Law Judge (ALJ) division to schedule a hearing, Chris Moving Systems requested the hearing be held in Los Angeles rather than in San Francisco, with the understanding that a Los Angeles hearing could not be scheduled until the Legislature passed and the Governor signed a final state budget. A hearing was noticed and held in Los Angeles on November 17, 2008. At the hearing, appellant appeared and requested a continuance in order to have time to retrieve documents from storage. The request was granted and a second hearing was held in Los Angeles on January 27, 2009. At this hearing, both parties were given an opportunity to submit late-filed exhibits; the evidentiary record was submitted on February 11, 2007.2
COMMENTS
Public Utilities Code Section 311(g)(1) requires that a draft resolution be served on all parties, and be subject to a public review and comment period of 30 days or more, prior to a vote of the Commission on the resolution. A draft of today's resolution was distributed for comment to the utilities and other interested parties.
FINDINGS
1. On June 26, 2008, CPSD served FC-197 (the citation) on Adriana Fortson, managing partner and corporate vice-president of Chris Moving Systems, following an investigation of the period October 1, 2007 through February 29, 2008.
2. In her July 14, 2008 appeal of FC-197, Ms. Fortson states that Chris Moving Systems had filed its application to transfer authority from its partnership to the new corporation over one and a half years ago and was told by CPSD that it could continue to operate under its partnership authority while the application was being processed. Further, she states that Chris Moving Systems did not have employees until 2008 and that deficiencies in moving forms are due to Chris Moving having no knowledge of new Commission regulations.
3. At the November 17, 2008 hearing, Ms. Fortson requested a continuance of the hearing in order to retrieve from storage a certified receipt for Chris Moving Systems' original transfer application in November 2006. The request for continuation was granted and the hearing rescheduled.
4. At the January 27, 2009 hearing, Ms. Fortson introduced as evidence a February 16, 2007 transfer application, Exhibit 7. She testified that she was unable to locate a return receipt, and had not submitted a check with the application.3
5. Appellant asserts that the amount of the fine is excessive given the company's good record and the nature of the violations. Ms. Fortson testified that Chris Moving Systems has had only one customer complaint, the complaint that led to CPSD's investigation, and that Chris Moving Systems did not carry Workers' Compensation insurance for individuals it hired that represented they had independent contractor licenses in the period of the investigation.4
6. Ms. Fortson, as the managing partner of Chris Moving Systems, passed the Commission's Household Goods Carrier examination on December 11, 2002 has held a Commission license as a household goods mover since May 12, 2003.5
7. Ms. Fortson complied fully with CPSD in its investigation.6
8. CPSD introduced evidence, Exhibit 3, that the application for transfer had not been properly filed until May 6, 2008. CPSD sponsored an investigative report, Exhibit 2, showing that since Chris Moving System's partnership authority has been issued through February 14, 2008, the authority has been suspended on seven (7) separate occasions and subsequently reinstated on seven (7) occasions, for insurance, delinquent fees and underpayment of fees. Exhibits 2 and 6 contain documentation for all violations cited in FC-197.
9. CPSD testified that the level of fine imposed in FC-197 was reasonable in comparison to the type of violations and the carrier's compliance history.7
CONCLUSIONS OF LAW
1. Chris Moving Systems has violated Public Utilities Code Section 5133 by operating as a corporation before obtaining the proper authority from the Commission on 30 occasions during the period from October 1, 2007 through February 29, 2008.
2. Chris Moving Systems has violated Public Utilities Code Section 5135.5 by hiring employees without first securing and filing evidence of Workers' Compensation Insurance coverage on 13 occasions during the period from October 1, 2007 through February 29, 2008.
3. Chris Moving Systems has violated Public Utilities Code Section 5139 and Maximum 4 Tariff (MAX 4) Items 128 and 132 by failing to issue Combined Agreements for Moving Services and Freight Bills showing all required information during the period from October 1, 2007 through February 29, 2008. The documented violations total 152.
4. Chris Moving Systems has violated Public Utilities Code Section 5143 and MAX 4 Items 130 and 465 by failing to properly complete the "Important Notice About Your Move" for 30 moves during the period from October 1, 2007 through February 29, 2008.
5. Chris Moving Systems has violated Public Utilities Code Section 5143 and Max $ Item 88(9)(a through e) for 27 moves during the period from October 1, 2007 through February 29, 2008.
6. The level of fine imposed in FC-197 is reasonable.
7. Chris Moving Systems should pay a fine of $3,000 in full within 30 days of this resolution or begin to make payments within 30 days based on an approved written payment plan with CPSD. All checks should be made payable to the California Public Utilities Commission and sent to the Commission's Fiscal Office, 505 Van Ness Avenue, San Francisco, California 94102. Upon payment, the fine should be deposited in the State Treasury to the credit of the General Fund.
8. If Chris Moving Systems fails to pay the fine as provided herein, CPSD should take any and all action provided by law to recover the unpaid fine and ensure compliance with applicable statutes and Commission orders.
THEREFORE, IT IS ORDERED that:
1. Field Citation 197 (FC-197) is affirmed in full.
2. Appellant Chris Moving Systems shall pay a fine of $3,000 in full within 30 days of this resolution or begin to make payments within 30 days based on an approved written payment plan with CPSD. All checks shall be made payable to the California Public Utilities Commission and sent to the Commission's Fiscal Office, 505 Van Ness Avenue, San Francisco, California 94102. Upon payment, the fine shall be deposited in the State Treasury to the credit of the General Fund.
3. The appeal process for this citation is closed.
This resolution is effective today.
I certify that the foregoing resolution was duly introduced, passed, and adopted at a conference of the Public Utilities Commission of the State of California held on _______________, the following Commissioners voting favorably thereon:
PAUL CLANON Executive Director |
INFORMATION REGARDING SERVICE
I have provided notification of the foregoing Draft Resolution ALJ-236 to the electronic mail addresses on the attached service lists, as well as a Notice of Availability by U.S. mail. I have served a hard copy of the foregoing Draft Resolution ALJ-236 by U.S. mail on those persons on the attached service lists that do not have e-mail addresses.
Dated March 13, 2009, at San Francisco, California.
/s/ FANNIE SID |
Fannie Sid |
CPSD Citation Number FC-197
Service List
Adriana Fortson & Benecia Toms dba Chris Moving Systems, and Chris Moving Systems, Inc 10213 Irwin Avenue Los Angeles, CA 90302 |
Jason J. Zeller California Public Utilities Commission Legal Division 505 Van Ness Avenue, Room 5030 San Francisco, CA 94102 Email: jjz@cpuc.ca.gov |
Adriana Fortson & Benecia Toms dba Chris Moving Systems, and Chris Moving Systems, Inc P.O. Box 451667 Los Angeles, CA 90045 |
Karen Miller California Public Utilities Commission Public Advisor Office 505 Van Ness Avenue, Room 2103 San Francisco, CA 94102 Email: knr@cpuc.ca.gov |
Christine M. Walwyn Administrative Law Judge California Public Utilities Commission 505 Van Ness Avenue, Room 5008 San Francisco, CA 94102 E-mail: cmw@cpuc.ca.gov (Assigned Administrative Law Judge) |
Lynn Stanghellini California Public Utilities Commission Chief Court Reporter 505 Van Ness Avenue, Room 2106 San Francisco, CA 94102 Email: las@cpuc.ca.gov |
Geraldine Kim, Attorney for CPSD California Public Utilities Commission Consumer Protection & Safety Division 505 Van Ness Avenue, Room 5027 San Francisco, CA 94102 E-mail: vo2@cpuc.ca.gov |
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Suong T. Le California Public Utilities Commission Consumer Protection & Safety Division 505 Van Ness Avenue, Area 2-C San Francisco, CA 94102 E-mail: stl@cpuc.ca.gov |
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1 Since the field citation is issued to both the partnership, owned by Ms. Fortson and her mother, and the corporation, owned by Ms. Fortson and her husband Christopher Fortson, we discuss each separately as the partnership and the corporation and only when reference is made to both do we use the name Chris Moving Systems.
2 See February 17, 2008 ALJ ruling.
3 Ms. Fortson also testified she later understood she had not submitted the correct paperwork. See January 27, 2009 hearing transcript at pages 29-31 (TR at 29-31).
4 See TR at 31-33.
5 See Exhibits 4 and 5.
6 See TR at 25.
7 See TR at 68-72.
