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ALJ/VDR/jt2 DRAFT Agenda ID #5485

PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

R E S O L U T I O N

RESOLUTION ALJ-191 in the Matter of the Appeal of Citation
FC-022, affirming in part and dismissing in part, pursuant to Resolution ALJ-187.

Marcelo Poirier, Attorney at Law, Legal Division, for Consumer Protection and Safety Division.

Greg Reed, in pro per, for Emerald City Limousine.

Findings of Fact

1. On December 19, 2005, the Commission served Citation number FC-022 (the citation) on Emerald City Limousine (respondent) in accordance with Resolution ALJ-187. On December 21, 2005, respondent served a Notice of Appeal on the Consumer Protection and Safety Division of the Commission (CPSD).

2. Administrative Law Judge Victor D. Ryerson heard this matter on February 8, 2005, in San Diego. The hearing concluded and the matter was submitted on that date.

At the hearing CPSD corrected certain factual allegations in the citation. The circumstances requiring these corrections came to CPSD's attention after issuance of the citation.

At the hearing respondent also stipulated that it had violated statutes and orders as alleged in paragraphs 1, 2, 5, 6 and 7 of the citation. As to these violations respondent offered only evidence in mitigation.

3. Respondent is an individual doing business as Emerald City Limousine. On December 23, 2003, the Public Utilities Commission of the State of California (Commission) granted Class P Charter-Party Permit number TCP017042 - P to respondent. Respondent's current permit remains in effect until December 23, 2006, unless suspended or revoked. Conditions 1 and 2 of the permit respectively limit respondent to the use of vehicles under 15-passenger seating capacity, and prohibit respondent from operating any vehicle(s) that are not adequately covered by a public liability and property damage insurance policy or surety bond as required by Public Utilities Code Section 5392.

On June 28, 2005, G's Limo LLC sought Charter-Party Carrier Authority from the Commission. The application was signed by Greg Reed (Reed), President. On September 15, 2005, the Commission granted that applicant a Class B Charter-party Certificate.

4. Lourdes Garcia, a CPSD inspector, conducted an investigation of respondent's operations for the period encompassing April 1 through June 30, 2005. CPSD issued the citation on the basis of evidence Garcia obtained during her investigation.

5. With respect to paragraph 3 of the citation, Garcia requested an affidavit and declaration from the Department of Motor Vehicles (DMV) Pull Notice Unit in Sacramento regarding respondent's participation in the program. In response the DMV Pull Notice Unit furnished an affidavit, dated June 3, 2005, which stated that respondent had been enrolled since October 20, 2003, under Requester Number T8780, and a certified list which showed five drivers enrolled in the program from October 28, 2003, to June 3, 2005. Of the five listed, two drivers were no longer employed by the respondent at that time.

On June 22, 2005, respondent furnished to Garcia a then-current list of its drivers, which contained 17 names. At Garcia's request, on October 31, 2005, DMV furnished a second affidavit, which listed the same five enrolled drivers as the June 3 list. By examining respondent's waybills and comparing them to the DMV list, Garcia determined that respondent had employed 15 drivers who were not first enrolled in the Pull Notice Program during the period encompassed by her investigation, and identified them by name.

6. At the hearing CPSD corrected paragraph 4 of the citation, which now alleges that respondent failed to conduct preemployment drug testing on four (rather than five) employees, and limits the scope of the allegations regarding two employees, Andrea Young and Gavin Reed, to April and May 2005 only.

CPSD relies upon a February 6, 2006 letter from the Substance Review Evaluation Resource Center, which identifies the drivers and their dates of preemployment drug testing, to support the allegations contained in the corrected paragraph 4 of the citation. Garcia compared the names in the letter to those reflected in respondent's waybills, and determined that four drivers who had not received the preemployment testing drove for respondent during the period encompassed by her investigation.

7. In response to the allegations contained in paragraph 3 of the citation respondent presented two cancelled checks dated March 5, 2005, which had been sent to DMV to enroll the employees in question in the Pull Notice Program, and a completed DMV Commercial Employer Pull Notice Enrollment or Deletion of Drivers form, dated March 27, 2005, showing that respondent had sought to add or confirm the enrollment of 15 drivers. In response to the allegations contained in paragraphs 3 and 4 Reed testified that prescreened drivers are automatically enrolled into a random drug testing program when they provide hair samples during preemployment testing. In addition, Reed testified that one alleged employee, Edward Bennett, has never worked for respondent, and that Reed does not know who Bennett is. This testimony is credible.

8. On July 18, 2005, the CPSD License Section received a certificate of insurance demonstrating that the 20-passenger-seating capacity vehicle involved in paragraphs 1 and 2 of the citation was insured under Lincoln General Insurance Co. policy number LPA 103523 for personal liability and property damage in the amount of $5 million, effective July 14, 2005. The certificate had been issued to G's Limo LLC.

9. A DMV Pull Notice System Employers List of Employees furnished to Garcia on January 26, 2006, shows a total of 13 enrolled employees, all but three of whom had been added by DMV on January 17, 2006.

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