LOUISIANA HOUSEHOLD GOODS CARRIERS, a Domestic Unincorporated Association, by and through William D. Hathorn, its President; Northlake Moving and Storage Inc., individually and as a Member of Louisiana Household Goods Carriers Association; A-1 Movers, Inc., individually and as a Member of Louisiana Household Goods Carriers Association; and Hathorn Moving and Storage Co., Inc., individually and as a Member of Louisiana Household Goods Carriers Association
v.
LOUISIANA PUBLIC SERVICE COMMISSION.
Supreme Court of Louisiana.
*1084 Janet S. Boles, Boles, Boles & Ryan, Baton Rouge, Counsel for Applicant.
Eve Kahao Gonzalez, Baton Rouge, Stephen Kenneth Conroy, Christine Wendt Marks, Montairie, Counsel for Respondent.
KIMBALL, Justice.[*]
This appeal raises the issue of whether the Louisiana Public Service Commission (Commission) erred in granting a common carrier certificate to Pontchartrain Movers, Inc. (Pontchartrain) that authorized the transportation of household goods within a 150 mile radius of Covington, Louisiana. On appeal to the Nineteenth Judicial District Court, pursuant to La. R.S. 45:1192, the Commission's order was affirmed. Protestants appeal directly to this court pursuant to Article IV, § 21 of the Louisiana Constitution of 1974. After reviewing the record of the evidence in this case and the law, we conclude that the Commission's finding that Pontchartrain met the burden of showing public necessity and convenience in its application for a common carrier certificate was not arbitrary and capricious and is reasonably supported by the evidence. Thus, the trial court's judgment is affirmed.
FACTS
Pontchartrain filed an application for a common carrier certificate authorizing the transportation of household goods within a 150 mile radius of Covington, Louisiana on February 7, 1997, which was published in the Commission's bulletin of February 21, 1997. During the 25-day publication period, opposition was filed by the Louisiana Household Goods Carriers Association (Association) and its member carriers. Protestants are certified carriers holding certificates of public convenience and necessity for transporting household goods statewide. A hearing was held on June 17, 1997, by Administrative Law Judge John Chrisman (ALJ) involving 13 witnesses and 17 exhibits. The ALJ took the matter under advisement and issued a proposed recommendation finding that Pontchartrain had met its burden of proving public necessity and convenience required under La. R.S. 45:164 on July 2, 1997. On August 20, 1997, after a public hearing[1] and upon the final recommendation of the ALJ, the Commission issued Common Carrier Certificate No. 6261 (certificate) to Pontchartrain pursuant to Order No. T-22305. Protestants appealed the order to Judge Janice Clark, of the Nineteenth Judicial District, pursuant to La. R.S. 45:1192, who affirmed the issuance of the certificate on August 25, 1999.
LAW AND DISCUSSION
Protestants contend that the Commission abused its authority in granting the certificate in this instance in that there was no showing of public convenience and necessity that warranted the grant to applicant of authority to transport household goods within a 150 mile radius of Covington, Louisiana.
La. R.S. 45:164 governs the issuance of common carrier certificates by the Commission. Section A of that statute provides, in pertinent part:
[N]o motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of public convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public *1085 convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.
Thus, in order for a motor carrier to operate as a common carrier under Louisiana law, it must obtain a certificate of public convenience and necessity from the Commission. The Commission will issue such a certificate only after giving notice to competing carriers, holding a public hearing and determining that the public convenience and necessity (PC & N) require the certificate be issued. La. R.S. 45:164; Matlack, Inc. v. Louisiana Pub. Serv. Comm'n,
PC & N is a dynamic and flexible concept, which is not susceptible to a rigid or precise definition; thus, it must be determined on a case-by-case basis. Matlack,
Upon judicial review, a court will not overturn the Commission's determination of PC & N unless it is based on an error of law, or if it is arbitrary and capricious. Id. (citing Miller Transporters, Inc. v. Louisiana Pub. Serv. Comm'n,
Therefore, when reviewing the Commission's determination, it is not the role of the reviewing court to re-weigh the evidence, to re-judge the credibility of the witnesses or to substitute its findings for those of the Commission. Id. at 99 (citing Southern Message Serv., Inc. v. Louisiana Pub. Serv. Comm'n,
Thus, in this case, the court must determine whether the Commission, acting reasonably on the evidence before it, could have determined that issuing Pontchartrain a common carrier certificate, which gave it the authority for the transportation of household goods within a 150 mile radius of Covington, Louisiana, would materially promote the PC & N and, correspondingly, whether the district court judge erred in affirming the Commission's determination.
In order to determine whether the Commission's order is reasonably supported by the evidence, a comprehensive review of the testimony presented at the hearing before the ALJ is necessary. Ken-Go Servs. Inc. v. Louisiana Pub. Serv. Comm'n,
Sims further testified that the peak season for the moving industry is from May to October and he sees an unfilled need in the Covington and surrounding areas for moves during these time periods. He feels that due to the rapid expansion of the area, with a large number of people moving away from New Orleans, this need for movers will continue to increase. He contacted the Department of Voters and Registration and learned that on May 5, 1990, 70,998 registered voters resided in St. Tammany Parish, and that on May 9, 1997, 105,221 registered voters resided in the parish. Documentation from the Department of Voters and Registration was entered into evidence that supported those numbers. A pamphlet produced by the St. Tammany Parish Policy Jury was also entered *1087 into evidence, which stated, in pertinent part:
St. Tammany is the fastest growing Parish in Louisiana and in the southeastern part of the United States for the past two decades. Between the 1980 and 1990 Census, the Parish population has increased by more than 33%. At present, over 173,000 people reside in St. Tammany. The population has grown from 26,988 in 1950 to over 175,000 in 1996. The growth averages about 500 to 600 people per month, translating into 3,000 to 4,000 new homes per year being built.
Sims testified that he believed this documentary evidence shows that people from other locations outside of Covington need the services of moving companies to move into the area. He feels that a grant of this authority would be in the public interest and would not adversely affect current certified movers, with only Northlake Moving being located in Covington. He conceded that other than his company, approximately nine to fourteen other movers are listed in the St. Tammany Yellow Pages. His company also performs other moving related services that are not regulated by the Commission, such as moving business offices, industrial locations and the like.
Pontchartrain's second witness was its vice president, William Kevin Sims. Kevin Sims testified that he owns forty-nine percent of the business as co-owner with his brother. Kevin Sims received a bachelors and master's degree from LSU in accounting and is a CPA. He began working for Nichols Moving with his brother when he had trouble getting a job after graduation. He joined Pontchartrain when it started in 1995 as a joint family venture. Kevin Sims is responsible for the financial operations of the company as well as being involved in the booking, packing and actual moving of customers.
Kevin Sims testified that he had conducted an informal survey of the certified movers in Louisiana. He first obtained a list of certificated household goods movers from the Commission, which had a total of eighty-seven carriers listed. After eliminating all carriers outside the 150 mile radius of this application, only fifty-five carriers remained. He then called all of these carriers personally over a five day period. From these calls, he was able to determine that six were not active and twenty-two did not move household goods, which left twenty-seven companies remaining as competitors with Pontchartrain. Of these, seven did not perform local moves during the peak moving season (from May to October) and the others have rates that vary depending on the time of year and month a person moves.[2] He presented the ALJ with his handwritten notes from his survey and provided telephone records to show the calls were made. Kevin Sims further testified as to the liability, cargo and workers' compensation insurance carried by Pontchartrain. He believes his company provides a unique and special service to the moving public in that they will make any type and size move, no matter how small. Also, they are more convenient for customers on the north shore and, because they have no interstate business, can devote more time and energy to local moves within the 150 mile radius of Covington.
Pontchartrain presented five supporting shipper witnesses at the hearing. The first supporting shipper witness was Helen St. Romain. Ms. St. Romain testified that she had used Pontchartrain in May 1997. The move involved special circumstances and she was very pleased with the very professional and efficient work done by Pontchartrain and the movers did not damage any of her furniture. She recommends them to her friends and would like to use them again when she moves into her new house, which would be outside their current authority.
The second supporting shipper witness was Stephanie Robertson. She used *1088 Pontchartrain to move a large, cast-iron bed from one room of her house to another. Pontchartrain was available within the hour in which she called. She plans to change residences in six months from the time of the hearing and would like to use them as she feels they provide a professional, dependable service.
The third supporting shipper witness was Greg Maxwell. Mr. Maxwell testified that he had used Pontchartrain for a move and had recommended them to friends. He had intended to move himself, but hurt his back. He called Pontchartrain and they were able to move him on short notice. He was very happy with the service provided by Pontchartrain and would like to use them when he moves to Folsom in the coming year.
The fourth supporting shipper witness was Tonya McAvoy. Ms. McAvoy testified that she needed movers for a last minute move. She called two moving companies on a Friday afternoon, neither of which responded. She then called Pontchartrain, which was willing to accommodate her by moving her at 6:00 a.m. the next day. She testified that she would use Pontchartrain again in any future moves and would gladly recommend them to friends.
The fifth supporting shipper witness was Vikki Leftwich. Ms. Leftwich testified that she owns three furniture stores, one located in Baton Rouge, one in Covington and one in New Orleans. She needs a moving service to deliver furniture she sells to her customers' homes. She has used, and will continue to use, Pontchartrain for these services because of the quality of their work and because they are a "blanket mover," which means that all of the furniture is wrapped in moving blankets before being moved. She was not aware that these types of moves are not under the Commission's jurisdiction. She has, however, used them to move her own household goods three times in the last three years and gladly refers Pontchartrain to all her customers who ask her for a reference. She testified that she uses Pontchartrain because of their professional service and feels that, in her experience, no other blanket carriers are available. She testified that other general freight carriers she used in the past damaged the furniture, while Pontchartrain has never damaged any of her furniture. The only other carrier she would consider using is Kid Gloves in New Orleans, but they are extremely expensive and rarely available. She testified that she feels there is a need for a mover located on the north shore because, in her experience, it is less costly to use a local mover rather than have one come in from outside the area.
Pontchartrain's final witness was Rick Roberts, a real estate broker in Mandeville. He testified that the population on the north shore in not only growing at a huge rate, but he feels this trend will continue in the future based on the number of homes being sold in the Covington/Mandeville area. Further, he gave his opinion that the documentary evidence submitted by Pontchartrain concerning the population growth in St. Tammany Parish was accurate.
Testimony was presented at the hearing from the following Protestants/carriers: Howard Taylor, owner, A-1 Movers, Inc., Baton Rouge; Carol Lulich, owner, Lee Moving & Storage, New Orleans; Peter Weil, owner, Associated Moving & Storage, Baton Rouge; Rick Paulk, president, Paulk's Moving & Storage, Harahan; and Larry Terrell, president, Northlake Moving & Storage, Inc., Covington. All of the Protestants/carriers hold statewide household goods authority, are affiliated with different national moving companies and all presented similar testimony. All testified that there is no need for another certified mover in the area as the current certified movers are able to handle the business. All testified that they felt the grant of this authority to Pontchartrain would adversely affect their companies and divert business from other certificated movers. All testified that they believed *1089 the moving business has been decreasing and that, at times, they have a twenty to thirty percent underutilization of their equipment. However, during the peak moving season, all testified they had near 100 to 100 percent utilization of their equipment. Further, only five to ten percent of each's business comes from intrastate moves, with the vast majority of their business coming from the more profitable interstate moves.
As an initial matter, Protestants raise issues concerning the competency of the evidence presented by Pontchartrain to establish PC & N. First, Protestants contend that the testimony of the five witnesses who have used Pontchartrain's services is irrelevant to prove PC & N because the moves testified to were within the local area, or otherwise exempt. Thus, because none of these moves involved household goods outside of the exempt zone under which Pontchartrain has been legally operating and do not require certification, Protestants aver that this testimony should not be considered. Second, Protestants raise objections to the admission of Kevin Sims' survey as hearsay, which should neither have been admitted nor considered.
Administrative bodies are usually not bound by the technical rules of evidence. See Chaisson v. Cajun Bag & Supply Co. 97-1225 (La.3/4/98),
Any evidence which would be admissible under the general statutes of the State of Louisiana, or under the rules of evidence governing proceedings in matters not involving a trial by jury in the Courts of the State of Louisiana, shall be admissible before the Louisiana Public Service Commission. Other evidence may be admitted by the Commission if it is at all probative and relevant provided the substantive rights of all parties are protected. The rules of evidence shall be applied liberally in any proceeding to the end that all needful and proper evidence shall be conveniently, inexpensively and speedily heard while preserving the substantive rights of the parties to the proceeding.
Thus, the Commission has broad discretion to admit evidence that would not be admissible in a judicial proceeding. However, this discretion is not unlimited, as the evidence relied on must be probative and relevant, or, in other words, competent. This court has held that competent evidence must have "some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility." Chaisson v. Cajun Bag & Supply Co., 97-1225 p. 10,
As to Protestants' second contention, hearsay is defined as "a statement, other than the one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." La.Code Evid. art. 801(C). The survey, then, is clearly hearsay and Protestants *1090 objected to it as such at the hearing when it was sought to be introduced. This court has held, in the context of administrative proceedings, that hearsay evidence can qualify as competent evidence. Chaisson, 97-1225 p. 10,
However, this court further held that if the evidence admitted is deemed incompetent, the admission of such evidence is not error per se, as the Legislature has granted hearing officers the discretion to disregard such admitted, but incompetent evidence, in reaching his factual findings. Chaisson, 97-1225 p. 14,
In this case, even if, arguendo, the survey is deemed to be incompetent, the arbitrary and capricious standard would still apply because it is not clear from the judgment or otherwise from the record that the Commission actually relied upon this evidence. When Kevin Sims testified as to his survey, the ALJ allowed the testimony in, over counsel's objection that it was hearsay, noting that the "Commission can take that into consideration." Further, in his final recommendation, the ALJ characterized this evidence as an "informal survey." It seems, then, from the record of the hearing itself, the Commission was able to recognize that the survey was hearsay, determine its probative value and relevance in accordance with Rule 32 of its Rules of Practice and Procedure, and, further, to disregard such evidence, if incompetent, when reaching its decision whether to grant the certificate. Assuming the evidence of the survey is incompetent, nothing in the record indicates that the Commission relied upon this evidence when reaching its determination whether to grant the certificate to Pontchartrain. We therefore cannot say the Commission acted arbitrarily or capriciously in arriving at its factual findings on the basis of the admission of the survey into evidence. We note there is sufficient additional evidence in the record to support the Commission's findings in this case.
As a practical matter, proof of PC & N is customarily accomplished by the applicant putting on testimony of supporting shipper witnesses to establish facts required to meet this burden. Matlack,
Where, as here, there are existing carriers, the burden is on the applicant to show that the public convenience and necessity require the issuance of the certificate. La. R.S. 45:164; Matlack,
(A) applicant must prove that the service it offers is required by public convenience and necessity by establishing that: (1) its proposed operation will serve a useful public purpose for which there is a public need or demand; (2) existing carriers cannot and will not serve this public purpose as well as applicant; and (3) applicant's new operation can serve this public purpose without endangering or impairing the existing carriers' operations contrary to the public interest; and (B) applicant must further establish clearly that its proposed new operation will materially promote the public convenience and necessity.
Matlack,
While this case is close, the proof, taken from the record as a whole, furnished reasonable grounds for the Commission to find that the service Pontchartrain offers is required by public convenience and necessity. First, the evidence at the hearing demonstrated a public need or demand for the proposed operation. Public need cannot be established upon shipper testimony expressing a preference for the applicant for the new service without considering the existence of other carriers capable of fulfilling the shipper's requirements. Louisiana Tank Carriers,
Second, the evidence showed that existing carriers cannot and will not serve this public purpose as well as the applicant. Protestants argue that proof of a public demand left unsatisfied by existing authorized carriers can only be made through shipper testimony of specific examples of failed service. Matlack,
Third, the evidence showed that Pontchartrain's operation will not endanger the existing carriers' operation contrary to the public interest. The testimony at the hearing established that the vast majority of the Protestants' business is generated by interstate moves and that Pontchartrain will only be involved in intrastate moves. Further, Protestants currently operate at near 100 to 100 percent utilization during the peak moving season. The mere fact that the issuance of the certificate might increase competition to some extent "is a matter of no importance for, when it is shown that there is a public need for the service offered by an applicant, it cannot be said that the Commission acts arbitrarily in supplying that need." Faulk-Collier Bonded Warehouse v. Louisiana Pub. Serv. Comm'n,
Finally, the second prong of the two-prong test was also met as the proof presented at the hearing furnished reasonable grounds for the Commission to find that Pontchartrain's proposed new operation will materially promote the public convenience and necessity. In Faulk-Collier Bonded Warehouse,
However, in A-1 Moving & Storage, Inc. v. Louisiana Pub. Serv. Comm'n,
The facts in Pontchartrain's case are more similar to the Faulk-Collier Bonded Warehouse and Rubion Transfer & Storage cases because evidence of "inconvenience and trouble in moving" was also presented along with the evidence of population growth. Pontchartrain's case is clearly distinguishable from A-1 Moving & Storage. In that case, only one of three witnesses anticipated using the applicant for future intrastate moves. Conversely, at Pontchartrain's hearing, three of its five shipper witnesses anticipated using the company for future intrastate moves. Further, the record in Pontchartrain's case is not "totally devoid" of any evidence that the operations or services of the existing carriers were inadequate in any respect as the record in A-1 Moving & Storage was. Thus, the Commission finding that Pontchartrain showed clearly that its new operation will materially promote the PC & N is reasonably supported by the evidence and not arbitrary or capricious.
Although this case is close, we cannot say from the evidence presented that the Commission acted arbitrarily or capriciously in its decision finding that Pontchartrain met the burden of showing public necessity and convenience in its application for a common carrier certificate authorizing the transportation of household goods within a 150 mile radius of Covington, Louisiana. Thus, because the Commission's determination is reasonably supported by the evidence in the record, this court must affirm. Mississippi Chemical Exp., 94-0440 at p. 8,
CONCLUSION
After reviewing the record of the evidence in this case and the law, we conclude that the Commission's finding that Pontchartrain met the burden of showing public necessity and convenience in its application for a common carrier certificate authorizing the transportation of household goods within a 150 mile radius of Covington, Louisiana was not arbitrary and capricious and is reasonably supported by the evidence. Thus, the trial court's judgment is affirmed.
AFFIRMED.
NOTES
Notes
[*] Lemmon, J., not on panel. See Rule IV, Part 2, § 3.
[1] Pontchartrain contends that because Protestants did not request oral arguments at the public hearing in front of the Commission, they waived their objection to the issuance of the certificate. However, Protestants' objection to the issuance of the certificate was read into the record at the public hearing and nothing in the Commission's rules requires a Protestant to request oral argument at the public hearing. Therefore, Pontchartrain's contention on this point lacks merit.
[2] The ALJ specifically noted that rates are not an issue in this proceeding.