BACKGROUND
On or about November 9, 2000, Franklin applied for a Permit, certifying in writing that he had not been convicted of committing any felony or crime involving moral turpitude. In an attached handwritten note, Applicant further stated that he "did have a problem with the law nearly ten years ago" and his mistakes in the past involved "drugs & drinking." CSD subsequently conducted a criminal background check and found several felony and misdemeanor convictions, one dated less than ten years ago, August 1993. Details of CSD's research including certified copies of court records are set forth in its Protest. See CSD Protest, Exhibit (Ex) 1, Declaration of Special Agent Supervisor W. G. Waldorf, filed February 26, 2001, at Attach. A.
On January 3, 2001, CSD Director Richard W. Clark wrote the Applicant that Staff could not approve issuing him a Permit because his Application raises serious questions of his integrity, responsibility, and trustworthiness. To pursue the matter further, Applicant would have to file a formal Application with the Commission. See id, letter from R.W. Clark to Applicant dated January 3, 2001.
On February 26, 2001, Franklin formally applied, which was first noticed in the Daily Calendar on March 5, 2001, and docketed as A.01-02-027. CSD timely protested.
In the second Prehearing Conference (PHC) held on June 6, 2001, the Parties agreed to a Settlement and adopted basic terms and conditions as stated in CSD's letter of June 1, 2001, to the assigned Administrative Law Judge Timothy J. Sullivan.
On June 12, 2001, ALJ Sullivan issued a Ruling directing Franklin to file with the Commission's Docket office by June 29, 2001, the following:
· A redacted version of his previously submitted data entitled, "Additional Presentation and Proof of Fitness"; and
· The results of new drug screening test to be taken after the June 6 PHC.
WHEREAS, the Parties seek to avoid the expense, inconvenience, and uncertainty of an administrative hearing; and
WHEREAS, Franklin has agreed to demonstrate his fitness to be licensed during a Term of two years as set forth below;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises made herein and intending to be legally bound by this Settlement, the Parties agree as follows:
1. CSD will request that the Commission authorize the Rail Safety and Carriers Division, License Section, to issue Franklin a Permit(s) for a Term of two years and any other Permit as necessary thereafter, as provided for in this Settlement. The Term shall begin on the date of issuance of the temporary Permit by the License Section and end 720 calendar days thereafter (hereinafter referred to as "the Two Year Period"). Fourteen days prior to the expiration of such Term, CSD shall review Applicant's compliance with this Settlement (hereinafter referred to as "the Review Date").
2. As soon as practicable after the Review Date but before the expiration of the Two Year Term, CSD will request that the License Section issue Franklin a permanent Permit and waive any fees required therefor, provided that all the following terms and conditions are fulfilled and complied with during the Two Year Period:
2.1. Franklin shall send CSD, in care of William G. Waldorf, at 505 Van Ness Ave, San Francisco CA 94102, written reports (Reports) listing the name, address, telephone number, and date of each customer filed claim for loss and/or damage. The Report shall also describe the nature and date of Franklin's response to such customer claim, in accordance with the requirements of Household Goods Carriers, MAX 4 regulations.
2.2. The first Report shall be delivered on or before the ninetieth calendar day after the date of issuance of the temporary Permit by the License Section. Each subsequent Report shall be delivered ninety-days thereafter. Each Report shall provide CSD with an update of any customer claims previously reported and include any new customer claims previously unreported.
2.3. Applicant will include with each Report described above the results of a medical drug test that he has taken within ten calendar days of the delivery date of each Report. The drug test evaluation shall state in writing the date of testing, the name, employment title, address, and telephone number of the person performing the test and indicate whether Applicant has or is using any illegal controlled substances, e.g., heroin, cocaine, or methamphetamines.
2.4. Franklin will comply with all applicable State and Federal law and regulations, (including but not limited to the California Household Goods Carriers Act (Act), California Public Utilities Code, chapter 7, section 5101 et seq.), any pertinent order, rule, or regulation of the Commission, or any term, condition or limitation of the Permit.
2.5. Franklin understands that if he materially violates any provision of this Settlement, any State or Federal statute, or any applicable Commission rules and regulations, CSD will request that the License Section cancel the temporary Permit, withhold issuing a permanent Permit, and/or take enforcement action(s) to address the violations. In the event that CSD files a formal enforcement action (e.g., requesting the Commission for an Order Instituting Investigation) and upon CSD's written request to Franklin agrees to perform the following:
2.5.1. Relinquish his Permit, pending the outcome of a hearing; and
2.5.2. As soon as practicable cease and desist from advertising or operating as a Household Goods Carrier in the State of California.
2.6. The Parties hereby stipulate to the facts and law as stated in the CSD Declaration filed with its Protest, the redacted version of the Franklin data entitled, "Additional Presentation and Proof of Fitness," and the new drug screening test filed by Franklin on or before June 29;
2.7. The Parties agree that the Commission has primary jurisdiction over any interpretation, enforcement, or remedies pertaining to this Settlement, as indicated by California Constitution, Article XII, section 8. No Party may bring an action pertaining to this Settlement in any local, state, or federal court or administrative agency without first having exhausted its administrative remedies at the Commission.
2.8. The Parties acknowledge that this Settlement is subject to approval by the Commission. Franklin hereby agrees that CSD shall file on behalf of all the Parties the Motion for Commission Approval and Adoption as soon as practicable after all the Parties have signed this Settlement. The Parties shall furnish such additional information, documents, and/or testimony as the Commission in granting said Motion and adopting this Settlement may require.
3. The provisions of this Settlement are not severable. If any Party fails to perform its respective obligations under this Settlement, the Settlement may be regarded as rescinded. Further, if the Commission or any court of competent jurisdiction overrules or modifies any material provision of this Settlement as legally invalid, this Settlement shall be deemed rescinded as of the date such ruling or modification becomes final.
4. The Parties acknowledge and stipulate that they are agreeing to this Settlement freely, voluntarily, and without any fraud, duress, or undue influence by any other Party. Each Party hereby states that it has read and fully understands its rights, privileges, and duties under this Settlement. Respondent further acknowledge full understanding of their right to discuss this Settlement with their respective legal counsel (if any), and have availed themselves of that right to the extent they deem necessary. In executing this Settlement, each Party declares that the provisions herein are fair, adequate, reasonable, and mutually agreeable. Applicant further acknowledges that as set forth in this Settlement, no promise or inducement has been made or offered them.
5. Each Party further acknowledges that after the execution of this Settlement, discovery may continue of facts that are in addition to or different from those known or believed to be true by any of the Parties. However, it is the intention of each Party to settle, and each Party does settle, fully, finally, and forever, the matters set forth in this Settlement notwithstanding such discovery.
6. This Settlement constitutes the Parties' entire Settlement, which cannot be amended or modified without the express written and signed consent of all Parties hereto.
7. No Party has relied or presently relies upon any statement, promise or representation by any other Party, whether oral or written, except as specifically set forth in this Settlement. Each Party expressly assumes the risk of any mistake of law or fact made by such Party or its authorized representative.
8. This Settlement may be executed in any number of separate counterparts by the different Parties hereto with the same effect as if all Parties had signed one and the same document. All such counterparts shall be deemed to be an original and shall together constitute one and the same Settlement.
9. This Settlement shall be binding upon the respective Parties hereto, their legal successors, assigns, partners, members, agents, parent or subsidiary companies, affiliates, officers, directors, and/or shareholders.
10. This Settlement shall become effective and binding on the Parties as of the date it is fully executed.
IN WITNESS WHEREOF, the Parties, hereto have hereunder set their hands and seals on the date and in the year first above written.
CONSUMER SERVICES DIVISION
By: __/s/ Richard W. Clark_____ Date __7/9/01___
RICHARD W. CLARK
Director
___/s/ Cleveland Lee _______ Date __7/9/01___
CLEVELAND W. LEE
Staff Counsel
Attorney for Consumer Services Division
KEITH G. FRANKLIN, dba FRANKLIN CARTAGE COMPANY
By: ______/s/ Keith Franklin ___________ Date __7/5/01__
(END OF ATTACHMENT)
