Appeal
CSD has appealed the portion of the presiding officer's decision that denies the admission of portions of CSD's investigative files, which were tendered in their entirety without any effort to remove documents that are irrelevant, immaterial, or unjustifiably prejudicial. With the exception of correcting a typographical error, we will deny the appeal.
The material issues in this proceeding are explicitly set forth in the OII, the substance of which we have already summarized above. It is clear to us upon reviewing the excluded evidence and the OII that the ALJ acted properly in refusing to receive the disputed items for the record, and that he had the discretion to do so. Many of the excluded documents are cumulative or share a common problem, so we will not discuss each one. It will suffice to provide a few examples of the kinds of items offered and explain the reasons we uphold their exclusion.
CSD's investigative files consist of the declarations of Christy Jackman, CSD's investigating Special Agent, and her supervisor, William G. Waldorf, with a series of documents attached to each. The documents, organized under lettered divider tabs, include Commission licensing records, various Superior Court and Municipal Court criminal and civil records and docket cards, Department of Motor Vehicle licensing records, correspondence, and declarations of witnesses who were not present at the hearing, as well as other items. Many identical documents are attached to both of the declarations. CSD asserts that even the document cover sheets and indexes, which were created by CSD, should have been received because they are "relevant for the reason that they tend to assist the finder of fact in examining the record." (Appeal, p. 4.)
CSD's effort to offer indiscriminately such documents as entire court files unearthed in its investigation is misguided. Docket cards, sentencing records, rap sheets, criminal complaints, copies of unpublished appellate opinions, and the like may lead an investigator to locate relevant evidence that is admissible at the hearing, but such documents should not automatically be received for our record. What was at issue in this investigation was whether the respondent on specific occasions violated specific rules and regulations we administer, not whether he had committed crimes or civil wrongs on other occasions that were unrelated to the allegations in the OII.
Some of the proffered material, which we will not describe in detail, is particularly noteworthy, because it is far more prejudicial than probative of any violation alleged in the OII. The most egregious example is a double hearsay declaration by a disgruntled former employee, who stated that he knew the respondent "had a problem with crack cocaine," and that he had seen the respondent enter a crack house in 1999. His declaration, which was attached to the investigators' declarations, further states, "I believe that Green went in to buy some crack. Green asked me for money and admitted to me that he was addicted. Green told me that he had been addicted to crack for a long time." CSD insists that this declaration, and other documents that similarly have little independent support for their reliability, should be received as part of the record to demonstrate that the respondent is unfit and should have his license revoked. Due process prevents us from relying upon such incompetent, irrelevant, and immaterial evidence, particularly in the absence of the respondent.
In this investigation, and in every investigation, due process requires that our decisions in cases such as this be based on reliable evidence that pertains specifically to the alleged violations of rules set forth in our order. An investigative file is nothing more than that, and is not a substitute for prepared testimony or properly authenticated, competent documentary evidence. From the documents and declarations tendered by CSD the ALJ found enough competent evidence to support his proposed order. This is sufficient; we will not overturn his evidentiary ruling for the sole purpose of retracting a message intended to discourage an unsound litigation practice. The appeal is denied.4
1. In applying for Federation's current operating authority, as well as on at least one prior occasion, respondent Green represented to the Commission in writing, under penalty of perjury, that he had not been convicted of committing any felony or crime involving moral turpitude.
2. At the time he made the written representations referred to in the preceding paragraph Green had previously been convicted of two counts of robbery in violation of California Penal Code § 211, a felony.
3. On more than one occasion after Federation received its current operating authority, T-189,080, on September 10, 1998, Federation has conducted business as a used household goods mover during periods of administrative suspension or revocation of its operating authority for failure to maintain or report insurance coverage as required by statute and by Commission rules.
4. During periods of suspension or revocation Federation held out to the public that it was properly licensed and qualified to engage in the business of a used household goods carrier.
5. On more than one occasion since Federation received its current operating authority, respondents have failed to acknowledge and process loss and damage claims in a timely manner, as required by statute and by Commission rules.
6. Federation has failed, on more than one occasion documented by the record, to furnish to a prospective shipper a copy of information concerning consumer rights as specified in Item 470 of MAX 4.
7. Respondent Green failed to appear personally or by representative at the evidentiary hearing in this proceeding.
1. CSD's motion for the Commission to reconsider the ALJ's July 31, 2000, Ruling with respect to the exclusion of certain evidence should be denied.
2. The respondents have violated Pub. Util. Code § 5314.5 by holding out to the public that Federation was a household goods carrier without possessing a valid permit.
3. The respondents have violated Pub. Util. Code § 5139 and GO 100-M by failure to procure, and to continue on file and in effect while conducting operations as a household goods carrier, adequate protection against liability, as imposed by law.
4. Respondent Green has violated Pub. Util. Code § 5135 by failing to divulge to the Commission his convictions of two counts of robbery in violation of Penal Code § 211 prior to submitting licensing applications to the Commission.
5. Federation violated Pub. Util. Code § 5139 by failing to furnish to each prospective shipper a copy of the information specified in MAX 4, in violation of Item 88 of that tariff.
6. Federation violated Pub. Util. Code § 5139 and Item 92 of MAX 4 by failing to acknowledge and process loss and damage claims in a timely manner.
7. By failing to appear at the EH in this proceeding, Green violated Ordering Paragraph number 1 of the OII.
8. Public health and safety require that respondents' operating authority be revoked, and that this revocation and other provisions of today's order be made effective immediately.
9. CSD's appeal of the presiding officer's decision should be denied to the extent that it seeks to overturn his July 31, 2000, Ruling.
IT IS ORDERED that:
1. The motion by the Consumer Service Division for review and reconsideration of the ALJ's July 31, 2000 ruling is denied.
2. The household goods carrier permit of respondent Federation Moving Services, Inc., File No. T-189,080, is permanently revoked for cause.
3. Respondent Elijah Green is barred from applying, on behalf of himself or any entity, for authority to engage in business as a household goods carrier, unless this order is first modified pursuant to Rule 47 of our Rules of Practice and Procedure, or any equivalent rule of this Commission which may then apply.
4. CSD's appeal is denied to the extent that it seeks to overturn the presiding officer's July 31, 2000, Ruling.
5. Investigation 00-05-019 is closed.
This order is effective today.
Dated November 8, 2001, at San Francisco, California.
LORETTA M. LYNCH
President
RICHARD A. BILAS
CARL W. WOOD
GEOFFREY F. BROWN
Commissioners
Commissioner Henry M. Duque, being necessarily absent, did not participate.
