Public Utilities Commission of the State of California s2

ALJ/KK3/jt2 DRAFT Agenda ID #16067 Rev. 1 11/30/2017 Item #16

PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Resolution ALJ348 Administrative Law Judge Division November 30, 2017

R E S O L U T I O N

RESOLUTION ALJ348. Resolves the Appeal K.1706002 of Citation No. CFP5215 of Randall Lee Rogers, doing business as (dba) Big Bear Moving and Redlands Moving, File T190858 from Citation CFP5215 issued on March 9, 2017 issued by the California Public Utilities Commission, Case Number HHG 2483.

PURSUANT TO ALJ299

This resolution involves the appeal of Citation No. CFP5215 issued to Randall Lee Rogers, doing business as (dba) Big Bear Moving and Redlands Moving (Mr. Rogers or Appellant), by the California Public Utilities Commission’s Consumer Protection and Enforcement Division (CPED) issued on March 9, 2017. Citation No. CFP5215 issues a fine of $8,000 for five violations of the Public Utilities Code. Three of the violations had 111 counts while the remaining two had six and seventeen.

On June 1, 2017, Appellant timely filed the instant appeal pursuant to Resolution ALJ299.1 The Commission granted an appeal hearing. On June 30, 2017, the assigned Administrative Law Judge (Judge) issued a ruling setting the hearing for August 21, 2017. On July 13, 2017, CPED moved for acceptance of the latefiled Compliance Filing. The Judge granted CPED’s motion during the hearing.2 On August 21, 2017, both parties appeared at the hearing. During the hearing parties utilized the right to call, examine, and crossexamine witnesses and offer exhibits.

PARTY POSITIONS

1 Appellant properly requested and was granted an extension of time to file the instant appeal. 2 See Transcript at 5. 199932550 │ Mr. Rogers contends that the violations cited by CPED are largely technical in nature. He argues that the perceived deficiencies did not result in any actual harm to the public. Mr. Rogers believed that the investigation was biased and that it failed to provide him sufficient due process. Finally, Mr. Rogers states that even if a fine is warranted, $8,000 is too high given the basically technical violations cited by CPED.

CPED states that the citations were properly issued based upon its review of the documents Appellant provided. CPED provided information to show that the amount of the fine was consistent with other fines for similar violations.3

RESOLUTION OF THE APPEAL The California Public Utilities Commission (Commission) regulates household goods carriers pursuant to the Household Goods Carrier Act (Pub. Util. Code § 5102, et seq.). Pursuant to Resolution ALJ187, issued by the Commission on September 22, 2005, the Commission’s CPED is authorized to issue citations to various classes of transportation carriers for violation of the Public Utilities Code (Pub. Util. Code or Code) and Commission orders. In turn, a carrier issued such a citation may accept the fine imposed or contest it through a process of appeal under Resolution ALJ299.4

On March 9, 2017, the CPED issued Citation No. CFP5215 for Randall Lee Rogers, dba Big Bear Moving and Redlands Moving, for violations of Public Utilities Code Sections 5139 and 5143 and the Commission’s Maximum Rate Tariff 4 (MAX 4). The violations cited were from a period from March 1, 2016 through August 31, 2016. Mr. Rogers contested the citation through the process of appeal under Resolution ALJ299.

The violations are described as follows: 1. Failed to properly complete Combined Agreement for Moving Services and Freight Bills showing all information as required in violation of Pub. Util. Code § 5139 and MAX 4, Items 128 and 132 (111 counts).

2. Failed to include a “Not to Exceed Price” on all Combined Agreements for Moving Services and Freight Bills showing maximum amount that may be charged for services in violation of Pub. Util. Code § 5139 and MAX 4, Items 128(2)(q) and 132(1)(r) (111 counts).

3. Failed to properly complete the “Important Notice About Your Move” in violation of Pub. Util. Code § 5143 and MAX 4, Items 130 and 465 (111 counts).

3 CPED provided a spreadsheet showing similar violations by category and the fine imposed. Carriers’ names and cases numbers were redacted. 4 The Commission issued Resolution ALJ299 on June 26, 2014, for citation appeals beginning January 1, 2015. Resolution ALJ348 ALJ/KK3/jt2 DRAFT (Rev. 1)

4. Failed to properly charge applicable rates for service rendered during hourly moves in violation of Pub. Util. Code § 5143, and MAX 4, Item 4 (6 counts).

5. Failed to properly and legibly compute time for loading, unloading, and double drive time and show such times accurate to the minute for each phase of service rendered during hourly moves, in violation of Pub. Util. Code § 5143 and MAX 4, Item 36 (17 counts).

CPED’s compliance filing included the following attachments:

Attachment 1: Transportation Enforcement Citation Transmittal Form to Fiscal, dated March 9, 2017 Attachment 2: Citation Service Form, dated March 9, 2017 Attachment 3: Citation for Violation of Public Utilities Code Attachment 4: Case Summary and Declaration from investigator Janis Northington regarding Roger’s case, Case No. HHG 2483 Attachment 5: CHP Inspection Unsatisfactory Rating September 12, 2016 Attachment 6: Notice to appear for records audit for period MTR 189101 and 190858 Attachment 7: Randall Rogers statement of MTR 189101 nonoperation Attachment 8: Twenty four (24) Combined Agreements during period of March 1, 2016 to August 22, 2016 Attachment 9: Six (6) Combined Agreements with Fuel Surcharges Attachment 10: Four (4) Combined Agreements without legible loading, Unloading, and records of starting, ending and any breaks

Pub. Util. Code § 5139 and MAX 4, Items 128 and 132 authorize the Commission to “establish rules for the performance of any service of the character furnished or supplied by household goods carriers.” MAX 4 Items 128 and 132 regulate agreements for moving services as well as shipping order and freight bills. These regulations require that carriers fully complete Agreements for Moving Services for every customer in accordance with the requirements under Item 128(2).

During investigation, CPED reviewed 111 Combined Agreements for Moving Services and Freight Bills issued by Appellant and found a total of 111 counts of violations of MAX 4 Items 128 and 132. A summary of the sample of the violations can be found in the compliance filing at Attachment 4, pages 4 and 5.

3 During the hearing, Mr. Rogers failed to present evidence that there were errors in the citations or that they were unwarranted. Mr. Rogers also failed to present evidence to show that the Agreements for Moving Services were, in fact, complete. As such, this Resolution affirms the findings of CPED and finds the citations were properly issued.

ASSESSMENT OF THE FINE

In assessing the reasonableness of the $8,000 fine, several factors must be considered. Decision (D.) 9812075 sets forth criteria for determining the reasonableness of a fine. The factors to consider in assessing the reasonableness of a fine include: (1) the severity of the economic or physical harm resulting from the violation; (2) the conduct to prevent, detect, disclose, and rectify the violation; (3) the financial resources of the party involved; (4) the public interest involved; (5) the totality of the circumstances; and (6) Commission precedents.

As set forth in D.9812075, the Commission should evaluate the reasonableness of the $8,000. Using these criteria, it is determined that although the public was placed at risk, there was no immediate economic or physical harm as a result of the violations. Mr. Rodgers acknowledged during the hearing that the moving agreements were incomplete but explained that his actions were not intended to cause harm and that he was unaware of certain requirements.5

Mr. Rogers stressed that these were technical violations and that there were no complaints or issues from customers whose corresponding shipping agreements were audited and found to be in violation. Mr. Rogers stated that his company is highly rated in the business community and on social media platforms for its excellent customer service.6 He was prepared to show the Commission that the business also received a number of awards, including the Super Service Award with Angie’s List, which Appellant stated is awarded to about three percent of all their movers throughout the United States.7 Additionally, Mr. Rogers has since rectified the violations and claims to be in complete compliance with the Public Utilities Code and MAX 4.

It should also be noted that the purpose of a penalty is not to cause an entity to cease operations. Mr. Rogers expressed great concern over the size of the fine and requested that it be greatly reduced.8 CPED responded to questions during the hearing about how it calculated the fine in this proceeding should be $8,000. In addition, after the hearing, CPED provided a chart showing fines imposed under similar circumstances within the

5 See Hearing Transcript at 53. 6 Id. at 56 (Mr. Rogers stated that they are the “highest rated van line with Angie’s list . . . Better Business Bureau . . . [and] with Yelp”). 7 Id. at 48. 8 Id. at 61. Resolution ALJ348 ALJ/KK3/jt2 DRAFT (Rev. 1) household goods carriers. Although the penalty imposed was within the range of penalties imposed on carriers with a similar number of Max4 violations, the instant penalty was was in the higher than most penalties for a similar number of violations. There was only one higher penalty assessed for fewer violations of a different nature than presented here. In cases with similar types and numbers of violations, most penalties ranged between $4,000 and $5,000.

With respect to the public interest, the Commission notes that safety of the public is paramount. However, as stated above, the violations were remediated prior to any economic or physical harm occurring.

Considering the totality of the circumstances and the desire not to put a small company out of business, it is appropriate to consider suspending recovery of a portion of the penalty. Although it is appropriate to sustain the citation, it is also appropriate to suspend collection of a portion of the penalty assessment. Provided that Appellant does not receive any future citations within the next 36 months, collection of $4,000 is now suspended. However, subsequent citations regarding violations of these regulations will result in the suspended amount of $4,000 becoming immediately due and payable.

SAFETY The Commission has authority to regulate household goods carriers, particularly with regard to safety concerns. We are mindful that the statutory schemes under which this citation was issued is intended to secure the safety of California consumers.

COMMENTS Pub. Util. Code § 311(g)(1) requires that a draft resolution be served on all parties, and be subject to a public review and comment period of 30 days or more, prior to a vote of the Commission on the resolution. A draft of today’s resolution was distributed for comment by the interested parties.

The Consumer Protection and Enforcement Division served comments on November 15, 2017. Randall Lee Rogers served reply comments on November 20, 2017. Minor changes have been made to the draft resolution in response to comments and reply comments.

FINDINGS 1. Randall Lee Rogers is doing business as a household goods carrier as Big Bear Moving & Redlands Moving; ACE Moving; Big Bear Moving and Beach Boys Moving in the state of California.

2. Household goods permits, MTR190858 and MTR189101, issued to Rogers have active status.

5 3. CPED initiated an investigation of Rogers on August 30, 2016, through a California Highway Patrol joint inspection at 789 W. Rialto Ave., San Bernardino, CA 92410, which took place on September 8, 2016.

4. Rogers provided the records on October 28, 2016, consisting of 111 intrastate combined moving agreements for moving services and freight bills.

5. The investigation covered a period of March 1, 2016, to August 31, 2016.

6. The CPED investigation of the 111 moving agreements resulted in five violations of the Public Utilities Code and MAX 4 tariff with multiple counts as follows: a. Pub. Util. Code § 5139 and MAX 4, Items 128 and 132 (111 counts) b. Violation of Pub. Util. Code § 5139 and MAX 4, Items 128(2)(q) and 132(1)(r) (111 counts) c. Violation of Pub. Util. Code § 5143 and MAX 4, Items 130 and 465 MAX 4 (111 counts) d. Violation of Pub. Util. Code § 5143 and MAX 4, Item 44 (6 counts) e. Violation of Pub. Util. Code § 5143 and MAX 4, Item 36 (17 counts) 7. CPED presented this evidence and testimony during the appeal hearing, and Rogers did not contest the factual or legal basis of the violations.

8. Rogers has altered his business practices to comply with the regulations found to be in violation above and has agreed to remain in compliance with the regulations.

THEREFORE, IT IS ORDERED that:

1. The violations in CPED Citation No. CFP5215 are affirmed, and the appeal is denied.

2. The penalty in Citation No. CFP5215 in the amount of $8,000 is sustained.

3. Provided that Randall Lee Rogers dba Big Bear Moving & Redlands Moving does not receive any future violations in the next 36 months, collection of $4,000 of the penalty is suspended. Resolution ALJ348 ALJ/KK3/jt2 DRAFT (Rev. 1)

4. The amount of the penalty that is immediately due and payable is $4,000. Rogers must pay a penalty of $4,000 by check or money order payable to the California Public Utilities Commission and mailed or delivered to the Commission’s Fiscal Office at 505 Van Ness Avenue, San Francisco, California 94102. Rogers may request a payment plan from the Consumer Protection and Enforcement Division. Payment of the $4,000 penalty must be completed no later than June 30, 2018.

5. Rogers dba Big Bear Moving & Redlands Moving must either request a payment plan from the Consumer Protection and Enforcement Division or make full payment of the penalty within 30 days of the effective date of this order. Write on the face of the check or money order, “For deposit to the General Fund pursuant to Resolution ALJ335.”

6. This proceeding is closed.

7. This resolution is effective today.

I certify that the foregoing resolution was duly introduced, passed, and adopted at a conference of the Public Utilities Commission of the State of California held on ______, the following Commissioners voting favorably thereon:

TIMOTHY J. SULLIVAN Executive Director