5. Appeal of Presiding Officer's Decision
Both complainant and defendants appeal elements of the Presiding Officer's Decision.
Complainant argues that (1) defendants' drivers are not "managers" and therefore are not excluded from workers' compensation requirements, and (2) defendants are barred from operating within a single city because they do not operate limousines.6 The preponderance of evidence does not support these allegations. Unrebutted testimony establishes that defendants operate as a limited liability company and that drivers collectively participate in management decisions. In arguing that defendants do not operate limousines, complainant overlooks the definition of "limousine" in Pub. Util. Code § 5371.4(h) as "any luxury sedan, of either standard or extended length, with a seating capacity of not more than nine passengers including the driver." Lincoln Towncars operated by defendants appear to meet this definition.
Defendants appeal three findings in the Presiding Officer's Decision. First, they contend that they have, since hearing, obtained a Department of Motor Vehicles permit to transport medical packages, and such transportation should be deemed lawful. Second, they argue that advertising in the taxicab section of the Yellow Pages as an inference of wrongdoing was fully rebutted at hearing, rather than "rebutted in part." Finally, they ask that the discussion of pending rulemaking on charter-party carrier rules clarify that the Commission has not at this time determined that changes in the rules are necessary.
As to the first contention, our decision requires defendants to cease and desist from "[a]ccepting prohibited medical shipments for transportation" (emphasis added). If such transportation is not prohibited by Commission rule or other state law, then it is not affected by our order. Charter-party advertising in the taxicab section of the Yellow Pages is not a violation of Commission rules, but it does support an inference of unlawful taxi operation when combined with other acts. The conclusion that the inference is rebutted in part in this case is correct. Finally, we believe that the decision is clear that the question of whether changes to charter-party rules are necessary or not is best left to the rulemaking in R.02-08-002.
We find no merit in the appeals of complainant and defendants of the stated elements of the Presiding Officer's Decision. The appeals are denied.
6 Complainant moves to strike defendants' appeal and its response to complainant's appeal on grounds that those documents were filed by an attorney who has not previously entered an appearance in this case. While we agree that defendants should have filed a notice of substitution of attorney, our rules do not specifically require such a filing. On that basis, we deny the motion to strike.
