Complainant's Position

In closing argument, Complainant's attorney contended that there was no evidence that CPSD had notified AT&T California and Verizon of other available enforcement remedies that it had utilized against Complainant, before seeking to disconnect his telephone, as required by Pub. Util. Code § 5322(c). He also maintained that neither the affidavit nor any evidence presented at hearing indicated that AT&T California and Verizon had given Complainant notice and a copy of the statute, as also required by Pub. Util. Code § 5322(f).

Complainant also argued that the affidavit was insufficient and "lacked the quality and persuasiveness required for the issue of a warrant,"²⁴ which is the standard being applied. No reasonable judge looking at it with knowledge of the facts presented at hearing would have signed it.²⁵ He further maintained that the Commission erred by sending notices to him at the addresses listed in the Yellow Pages directories, rather than to his Formosa Avenue address. He asserted that as sent, the Commission did not address the notices to Binstok as an individual, nor did it send it to an address likely to be received by him. Consequently, the Commission did not meet its procedural due process obligations.²⁶

Discussion

For a business relying on telephones, uninterrupted telephone service is an interest in "property" constitutionally entitled to protection against "taking" without due process of law.²⁷ Before disconnection of telephone service can occur, in the context of the instant case, there must be probable cause to believe that the telephone facilities are being or are 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.²⁸

Such a showing of probable cause must be made before a magistrate - in this case, the Superior Court for the County of Los Angeles - and is reasonably comparable to the showing that must be made in order to obtain a search warrant.²⁹ Based on the affidavit and supporting documentation that has been entered into evidence here (Exhibit 1), Judge Injejikian concluded that there was probable cause to believe that complainant's business telephones were 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. (Exhibit 1)

Binstok faults May's experience and attacks the evidence of the Yellow Pages ads because they do not specifically solicit business for a carrier of "used household goods." His specious arguments do not reduce the probity of the facts outlined in the affidavit and substantiated through the ten supporting attachments. The evidence indicated that Binstok was moving any goods that he was hired to move. Moreover, the affidavit clearly shows in its two supporting cease and desist warning letters and the testimony of May, that CPSD had tried on several occasions to correct Binstok's behavior through other means.³⁰

Binstok claims that the Commission erred by sending notices to the business address where the telephones were located, rather than to his residence. However, he does not deny that 5143 W. Adams Blvd. is the address of A Admiral/J B Moving Company or that the two disconnected telephones are located there. Apart from this assertion at hearing, Complainant's interaction with the Commission's Docket Office did not suggest that there had been a problem with the notices.³¹ Thus, Complainant received adequate notice.

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.³²

The evidence presented here reveals that Binstok has held himself out as a licensed mover, and operated as a mover of used household goods without authority since 2005.³³ Investigators Zundel and Vaisa testified that they each called Binstok's business number, described the moves that they were seeking, and received hourly rate and time estimates. All three investigators offered credible assessments of what they observed and heard from Binstok and A Admiral/J B Moving. The three all have sufficient experience in unlicensed moving company investigations to support their analyses of A Admiral/J B Moving's business.

We find Complainant's allegation that AT&T California and Verizon failed to give him notice and include in those notices a copy of the controlling statute, pursuant to Section 5322(f) and Tariff Rule 31(A)(5), troubling if true.³⁴ However, a review of the complaint form that Complainant filed indicates that Complainant was aware of the precise timing deadlines of the statute, and he was served with copies of both utilities' Tariff Rule 31 within three days after he requested that it be filed with the Docket Office. In light of this, we find that the utilities' purported error does not rise to a level requiring us to order the telephone service restored.

Based on the testimony 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 numbers, since prospective customers used this number to contact A Admiral or J B Moving, which in turn enabled the violation and assistance in the violation of licensing laws of the State of California, as alleged in the affidavits. 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 such that Complainant's contentions are unfounded.

The second showing that Section 5322 imposes on the Commission staff is the burden of persuading the Commission that the telephone services should be refused or should not be restored. May testified that despite written and verbal warnings to stop soliciting the public and operating as a household goods mover, Binstok continued to hold himself out as a licensed mover. At hearing, when asked if he was operating unlawfully, Binstok's attorney stated: "...He is not operating in an unlawful manner for the moves that he does."³⁵ Still, there was no evidence that Binstok selectively either solicited or conducted moves with an eye to operating lawfully. If Binstok'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.

We, therefore, further find that good cause has been shown to deny any interim restoration of telephone service pending Binstok obtaining a valid household goods carrier permit. Accordingly, the request for reinstatement of the disconnected telephone service is denied.

Appeal of the Presiding Officer's Decision

Complainant has appealed from the decision of the Presiding Officer, alleging errors in two areas. First, he reasserts that AT&T California and Verizon disconnected his business telephones prior to giving him notice and a copy of the controlling statute(s). Consequently, he contends that this failure to follow the correct procedure nullifies the disconnection, and service should be resumed for both telephones. Second, Complainant argues that his yellow pages advertisements made no reference to local moving; therefore, they were not in violation of the law.

CPSD responded that, despite Complainant's assertions about the failure to follow proper procedure and the yellow pages advertisements, the POD does not demonstrate an error the Commission should correct. AT&T California responded that Complainant's claim at hearing and on appeal that it did not follow the correct procedure is improper since he did not raise this issue in his complaint. Moreover, this appeal does not identify any factual or legal error in the POD's conclusion that Complainant knew of the timing of the deadlines in the statute and was served with copies of Tariff Rule 31.

We have reviewed the record and have made slight clarifications to the POD, none of which change the result. Complainant has identified no legal or factual errors in the POD; therefore, we affirm the decision.

²⁴ RT at p.88, ll. 16-18.

²⁵ Id. at p. 90, ll. 8-10.

²⁶ Id., ll. 7.

²⁷ Goldin v. Pub. Util. Comm. 23 Cal.3d 638 at 662 (1979); see also Board of Regents v. Roth, 408 U.S. 564 (1972).

²⁸ 23 Cal.3d at 663-664.

²⁹ Sokol v. Pub. Util. Comm. 65 Cal.2d 247, 256 (1966).

³⁰ Complainant interprets Section 5322(c) to require that the Defendants be shown that "other available enforcement remedies" had failed prior to the Commission seeking the telephone disconnection order. If so, CPSD's failure to enumerate the enforcement remedies it had used, for AT&T California and Verizon, was a minor violation of the provision with no substantive effect.

³¹ In July 2006, November 2006, and February 2007, the CPSD corresponded with Binstok at 5143 W. Adams. See, In the Matter of Jacob David Binstok dba J B Moving for a household goods carrier permit, A.07-04-019.

³² Goldin, supra at 668, footnotes omitted.

³³ However, Exhibits 2 and 3 are consumer complaints submitted in 2002.

³⁴ On January 28, 2008, AT&T California responded to Complainant's appeal of the Presiding Officer's Decision (POD) that contrary to his assertion, it notified him by letter about the disconnection order and appended a copy of Tariff Rule 31. It maintained that Complainant made no allegations against AT&T California nor claimed to have failed to receive notice or a copy of the tariff in his complaint. AT&T California noted that since its presence seemed unnecessary, with leave from the Commission, it did not attend the evidentiary hearing and later learned that the procedure it followed prior to disconnection became an issue at the hearing.

³⁵ RT at p. 90, ll. 20-22.