IN RE PROPOSED AMEND. TO TITLE 291, CH. 3
| Decision Date | 12 July 2002 |
| Docket Number | No. S-01-433.,S-01-433. |
| Citation | 646 N.W.2d 650,264 Neb. 298 |
| Court | Nebraska Supreme Court |
| Parties | In re PROPOSED AMENDMENT TO TITLE 291, CHAPTER 3, OF the MOTOR CARRIER RULES AND REGULATIONS. Nebraska Public Service Commission, Appellee, v. A-1 Ambassador Limousine, Inc., doing business as Ambassador Limousine and Haymarket Limousine, interested party, Appellant, and R & F Hobbies, Inc., doing business as Prince of the Road, interested party, Appellee. |
Elaine A. Waggoner, of Waggoner Law Office, Lincoln, for appellant.
Don Stenberg, Attorney General, and L. Jay Bartel, Lincoln, for appellee Nebraska Public Service Commission.
John M. Boehm, of Butler, Galter, O'Brien & Boehm, Lincoln, for appellee R & F Hobbies, Inc.
A-1 Ambassador Limousine, Inc., doing business as Ambassador Limousine and Haymarket Limousine (A-1), appeals an April 3, 2001, order of the Nebraska Public Service Commission (PSC) which, inter alia, defined the terms "limousine" and "limousine service" as contained in title 291, chapter 3, of the Motor Carrier Rules and Regulations, § 001. We affirm the order of the PSC.
On January 9, 2001, the PSC, on its own motion, entered an order opening a docket "to conduct a review of existing Commission rules and regulations as they pertain to motor carriers in Title 291, Chapter 3, Motor Carrier Rules and Regulations." The PSC stated in the order that it found it necessary to address the definitions of "limousine" and "limousine service" because of "current ambiguity in the application of our existing granted authorities." The PSC noted that when the applicable rules were originally promulgated, limousines were presumed to be luxury class transportation used primarily for formal social functions. However, a need to define terms had arisen because (1) "holders of limousine authority have engaged a variety of vehicles to conduct their business under the granted authority including the use of regular sedans and vans" and (2) "the passengers being transported no longer are limited to persons seeking the benefits of luxury transportation." The PSC specifically noted that holders of and applicants for limousine authority were using or seeking to use limousine authority to transport clients of the Nebraska Department of Health and Human Services (DHHS).
The PSC noted in the January 9, 2001, order that it had adopted in its rules a limousine classification and had promulgated rules applicable to limousine operators. The PSC stated that it found it necessary to adopt concise definitions of "limousine" and "limousine service" in order to properly interpret the scope of authority granted to limousine certificate holders. The PSC therefore adopted the following definitions:
The PSC specified that to the extent such definitions were in conflict with its findings in a September 8, 1999, order regarding the application of Running Horse Enterprises, LLC, for limousine authority (the Running Horse order), such findings in the Running Horse order were set aside and modified. In the Running Horse order, the PSC had stated that "limousine service shall mean a chauffeurdriven, non-metered passenger vehicle for hire including, but not limited to, full-sized sedans, extended-size sedans, passenger vans, and sports utility vehicles where the rate may be determined on an hourly, daily, weekly, or monthly rental or may be mileage-based."
The PSC also stated that the definitions in the January 9, 2001, order would become effective upon entry of the order and would be applied to all applications for limousine authority granted on or after that date. The PSC acknowledged that certain certificate holders with limousine authority, relying on the Running Horse order, would be operating outside the definition of the limousine authority in the January 9 order. The PSC stated that for those certificate holders, it would stay enforcement of the January 9 order for a period of 90 days in order to allow a reasonable time for those certificate holders to comply with the definitions adopted in the order.
The PSC further indicated that the definitions in the January 9, 2001, order would become part of its overall effort to review, update, and recodify its existing rules on motor carriers. The PSC therefore gave notice that once approval to proceed was received from the Governor, it would propose amendments to title 291, chapter 3, to incorporate the definitions of "limousine," "limousine service," and "premium fare" set forth in the January 9 order. The PSC stated it would accept filed comments on the proposed amendments through February 2 and would set a public hearing on the proposed amendments once permission was received from the Governor to proceed with rulemaking. The PSC reiterated that the proposed amendments were part of its intended efforts to examine the entirety of the motor carrier rules and stated that when a final order adopting revisions to the rules was entered, it would include any revisions to the proposed amendments that were made as the result of public comments received.
The PSC concluded the January 9, 2001, order by ordering (1) that the definitions in the order were thereby adopted as proper policy interpretations of its motor carrier rules pursuant to its authority under state law, (2) that the definitions should not be enforced against holders of certificates granted prior to the order for a period of 90 days, and (3) that the proposed amendments to the motor carrier rules were open to public comment and interested parties could file initial comments on or before February 2.
On March 14, 2001, the PSC held a public hearing on the proposed amendments to the motor carrier rules and regulations. At the hearing, the PSC received into evidence written public comments which had been received from various interested parties, including holders of limousine certificates, holders of taxicab certificates, and DHHS. DHHS expressed concern that the proposed amendments would prohibit certain holders of limousine certificates from providing transportation to DHHS clients. DHHS' analysis indicated that for areas outside the Lincoln and Omaha metropolitan areas, the amendments would eliminate all carriers except for taxicab companies and two contract carriers from providing transportation for DHHS clients.
Various individuals spoke at the hearing, including attorneys representing DHHS; A-1; and R & F Hobbies, Inc., doing business as Prince of the Road (R & F Hobbies). The attorney for DHHS reiterated the concerns expressed in DHHS' written comments regarding the effect on transportation for DHHS clients.
The attorney for A-1 testified in opposition to the proposed definitions. A-1 holds a limousine certificate. The attorney for A-1 testified regarding statistics that over 50 percent of the business of the nation's top limousine services, and 60 percent of A-1's business, involved sedantype transportation rather than the traditional stretch limousines. Such business would be eliminated under the definitions proposed by the PSC. The attorney for A-1 testified that approximately 40 to 45 percent of A-1's business came from providing transportation to DHHS clients. Although the Running Horse order had included a wide variety of vehicles in its definition of "limousine service," the attorney for A-1 testified that A-1 had not explicitly relied on the Running Horse order to determine it could provide transportation services to DHHS clients, but, rather, it had been informally advised by PSC personnel in approximately July 2000 that A-1 could provide such services under its existing certificate. The A-1 attorney indicated that A-1 had relied on such advisement. In addition, the attorney for A-1 raised concerns that the process by which the new definitions had been adopted did not comply with the Administrative Procedure Act or with due process requirements.
The attorney for R & F Hobbies testified in support of the proposed definitions of "limousine" and "limousine service." He testified that R & F Hobbies held a certificate with authority to provide passenger-van transportation. He further testified that the new definitions of "limousine" and "limousine service" would not eliminate transportation services to DHHS clients because R & F Hobbies and other carriers with proper certificates of authority were able to provide such services statewide.
Representatives of various taxicab companies testified in support...
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