IV. Appeal of Presiding Officer's Decision

On July 13, 2005, timely appeals of the Presiding Officer's Decision (POD) were filed by respondents and CPSD. On July 28, 2005, CPSD timely filed a response to respondents' appeal.

In their appeal, respondents allege that legal error was made in applying the facts in the record to Section 5258. (See III.C of today's decision.) Specifically, the appeal asserts that respondent Isaac Nagar was compelled to produce documents to CPSD in the course of its investigation, and that Nagar's compliance in producing the records and not asserting any claim to privilege against self-incrimination should serve to exonerate him, personally, of any prosecution, punishment or penalty.

In its response, CPSD asserts that respondents' appeal is a vague and meritless rearguing of a previous claim and should be given no weight. The POD found that Section 5258 is not relevant because Nagar was not ordered to testify nor did he invoke a privilege against self-incrimination. Respondents' appeal attempts to add to the record the statement that Nagar was "compelled to produce documents to agents of the Public Utilities Commission" but the appeal does not show that the unnamed, uncited, and unidentified documents were compelled and/or produced under oath, and respondents again state that Nagar never asserted any privilege against self-incrimination.

We find that respondents' appeal is without merit. Respondents again acknowledge that Nagar never asserted any claim to privilege against self-incrimination; further, respondents fail to show that any specific documents were compelled to be produced. We find no legal error in the POD's conclusion that Section 5258 does not release Isaac Nagar from any disciplinary action here.

In its appeal, CPSD requests the correction of minor factual errors in the level of potential fines for violations of sections of the MAX-4 tariff and a minor difference in the total amount of potential fines. These errors do not change the amount of fine recommended by CPSD or the rationale that CPSD asserts. Based on CPSD's appeal, we make the following changes:

1. To the table in section II.C.:

a. $2000 is listed as the potential fine for violations of MAX-4, Item 128 "Failure to provide agreement to customers no less than three days before the move." This amount is changed to $5000.

b. $43,000 is listed as the potential fine for violations of MAX-4, Item 92 "Failure to respond to customer claims." This amount is changed to $2000.

c. $1000 is listed as the potential fine for violations of MAX-4, Items 108, 120, and 128 "Failure to refund overcharges." This amount is changed to $43,000.

2. Change the total amount of potential fines shown in Section III.D. from $641,500 to $639,500.