4. Discussion
For a business relying on the telephone, uninterrupted telephone service is an interest in "property" constitutionally entitled to protection against "taking" without due process of law.14 Before disconnection of telephone service can occur, in the context of the instant case, there must be probable cause to believe that the telephone facility is being or is about to be used to commit illegal acts, and it must be shown that the character of the acts is such that, absent summary action, significant dangers to public health, safety, or welfare will result.15
Such a showing of probable cause must be made before a magistrate-in this case, the Superior Court for the County of Alameda-and is reasonably comparable to the showing that must be made in order to obtain a search warrant.16 Based on the exhibits, affidavit, and supporting documentation entered into evidence here, Judge Nakahara concluded that there was probable cause to believe that Complainant's business telephone was being used to violate or assist in violating the law, and that, absent summary action, such violation could cause significant danger to public health, safety, or welfare. (Exh 17.)
The Commission is empowered to rule on the adequacy of the showing of probable cause, and to determine whether interim relief is warranted pending the resolution of the misdemeanor charges brought against the subscriber. As the California Supreme Court has stated:
"In a civil administrative proceeding of this nature, where the liberty of the subscriber is not at stake, it is sufficient for purposes of the interim protection involved that the Commission limit itself to the face of the affidavits and an assessment of their adequacy to support the magistrate's finding.... Even in cases when it appears to the Commission that the finding is adequately supported by the affidavits presented to the magistrate, it may wish to consider the strength and character of the showing made as a factor to be weighed, along with pressing need or imminent economic damage, in its determination whether or not interim relief should be afforded to the subscriber."17
The evidence presented here reveals that Robinson has held himself out as a licensed mover, and operated as a mover of used household goods without authority off and on since 2000.18 Investigator Kahrs testified that he and his colleagues at the Commission have observed Robinson holding himself out and operating as a licensed household goods carrier over the years. He offered a credible assessment of what he saw and heard from Complainant. Kahrs has sufficient experience in unlicensed moving company investigations to support his analysis of Robinson's business.
Based on Kahrs' and Robinson's testimonies and the exhibits, we find that the totality of the evidence would lead a reasonably prudent person to conclude that violations of the laws governing household goods carriers' licensing and conduct have been shown, and that such violations posed a significant danger to public health, safety, or welfare. We find that these violations were made possible in large part by the use of the disconnected telephone number, since prospective customers used this number to contact Robinson and Have Van-Will Travel, which in turn enabled the violation and assistance in the violation of licensing laws of the State of California as alleged in the affidavit. Thus, we find that the CPSD has met its burden of showing that the disconnection order was justified and that the telephone service in question was being used directly or indirectly to violate or to assist in violating the law. We also find that the process followed by the CPSD complies with the Goldin decision.
The second showing that § 5322 imposes on the Commission staff is the burden of persuading the Commission that the telephone service should be refused or should not be restored. Kahrs testified that despite written and verbal warnings to stop soliciting the public and operating as a household goods mover, as recently as May 2008, Robinson has held himself out as a licensed mover. At hearing, when asked if he was operating unlawfully, Robinson stated that he had not operated illegally in more than a year and a half, and did not feel that the May 2008 documentation of his conversation with a potential customer should be held against him. Still, Robinson had no explanation for the recent and munificent flyers bearing his telephone number and posted around San Francisco. And, while he admitted that he did not have and could not afford the required household goods carrier insurance, he indicated that he did not believe that it was necessary for a one-man operation. If Robinson's telephone service is restored now, there is every indication that he will resume his unlicensed moving business and jeopardize the welfare of the public. In fact, Kahrs testified that Commission staff had discovered flyers showing a new telephone number for Robinson's Have Van-Will Travel.
We, therefore, further find that good cause has been shown to deny any interim restoration of telephone service pending Robinson obtaining a valid household goods carrier permit. Accordingly, the request for reinstatement of the disconnected telephone service is denied, and this complaint is dismissed.
The scope of this proceeding is set forth in Pub. Util. Code § 5322. The order today confirms that Administrative Law Judge (ALJ) Jacqueline A. Reed is the presiding officer.
14 Goldin v. Public Utilities Commission, 23 Cal.3d 638 at 662 (1979); see also Board of Regents v. Roth, 408 U.S. 564 (1972).
15 Id. at 663-664.
16 Sokol v. Pub. Util. Comm. 65 Cal.2d 247, 256 (1966).
17 Goldin, supra at 668, footnotes omitted.
18 Exhs 1 and 16.
