Louisiana Household Goods Carriers v. LOUISIANA PUBLIC SERVICE COM'N

• Decision Date: 12 March 2001
• Docket Number: No. 2000-CA-2803.,2000-CA-2803.
• Citation: 781 So.2d 545
• Parties: 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 the 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.
• Court: Louisiana Supreme Court

781 So.2d 545

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 the 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.

No. 2000-CA-2803.

Supreme Court of Louisiana.

March 12, 2001.

Janet S. Boles, Baton Rouge, Counsel for Applicant.

Eve Kahao Gonzalez, Baton Rouge, Stephen Kenneth Conroy, Metairie, Counsel for Respondent.

KNOLL, Justice.¹

This case raises the issue of whether the Public Service Commission (the "PSC") acted arbitrarily or capriciously when it granted Fleet Brian Easley d/b/a A-Plus Moving ("Easley") and Roy M. Perez d/b/a Arthur Perez Moving Professionals ("Perez") common carrier certificates pursuant to its authority to regulate common carriers of household goods. After an adverse judgment from the district court, the Louisiana Household Goods Carriers ("HGC"), as a protestant to the applications, appeals directly to this Court pursuant to Article IV, Section 21(E) of the Louisiana Constitution.

PROCEDURAL HISTORY

Easley and Perez each applied for common carrier certificates. Easley applied for a certificate to transport household goods within the twenty-five mile radius of Baton Rouge limited to the use of one straight truck. Perez applied for a certificate to transport household goods within a one-hundred mile radius of New Orleans; however, at the hearing, Perez restricted the application to moves originating in Orleans and St. Tammany Parishes to destinations in St. Tammany and St. Charles Parishes. Hearings were held in both cases and testimony from both the applicants and HGC was submitted. The administrative law judge, who heard both cases, recommended to the PSC that it grant Easley's application, but deny Perez's application. Perez personally appeared before the PSC to argue his case. The PSC granted both applications. HGC appealed the order to the 19th Judicial District Court. With the benefit of our recently decided case of Louisiana Household Goods Carriers v. Louisiana Public Service Commission, 99-3184 (La.6/30/00), 762 So.2d 1081 (hereinafter Pontchartrain), which concerned similar issues,² the trial court affirmed the PSC.

In this appeal, HGC argues that the district court erred by affirming the decision of the PSC because there is no evidence in the record to sustain a grant of authority by the PSC to either Easley or Perez, neither Perez nor Easley had competent evidence because the witnesses did not provide any evidence with probative value, and the PSC abused its authority by granting certificates to Easley and Perez because there was no showing of public convenience and necessity. The PSC, on the other hand, argues that the appeal is without merit and that the PSC's orders granting certificates to Easley and Perez are fully supported by the facts in the record. Additionally, the PSC argues that it did not act arbitrarily or capriciously because public convenience and necessity were materially promoted by the granting of the restricted applications to Easley and Perez.

LAW AND ANALYSIS

The Louisiana Legislature has declared that businesses that operate motor vehicles for hire as common carriers of household goods are businesses affected with a public interest. LA.REV.STAT.ANN. § 45:161. A common carrier is essentially a business or individual engaged in the business of transporting, among other things, household goods and charging for that service. See LA.REV.STAT.ANN. § 45:162(5). Common carrier certificates are issued by the PSC pursuant to LA.REV. STAT.ANN. § 45:164 which 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 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.

LA.REV.STAT.ANN. § 45: 164(A).

Thus, the PSC will issue a certificate to a motor carrier after giving notice to competing carriers, holding a public hearing, and determining that the public convenience and necessity ("PC & N") require the certificate to be issued. LA.REV.STAT. ANN. § 45:164; Pontchartrain, 99-3184 at p. 2-3, 762 So.2d at 1085; Matlack, Inc. v. Louisiana Pub. Serv. Comm'n, 622 So.2d 640, 649 (La.1993).

PC & N is a dynamic and flexible concept that is not susceptible to a rigid or precise definition; PC & N must be determined on a case-by-case basis. Pontchartrain, 99-3184 at p. 3, 762 So.2d at 1085; Matlack, 622 So.2d at 650. It is within the PSC's sound judgment and discretion to evaluate whether an applicant met the requisite burden of proving PC & N. Mississippi Chem. Exp., Inc. v. Louisiana Pub. Serv. Comm'n, 94-0440 at p. 7 (La.5/23/94), 637 So.2d 93, 98. The PSC's determination is accorded great weight as it is an exercise of the PSC's discretionary authority. Id. (citing Florane v. Louisiana Pub. Serv. Comm'n, 433 So.2d 120, 123 (La.1983); Dreher Contracting & Equip. Rental, Inc. v. Louisiana Pub. Serv. Comm'n, 396 So.2d 1265, 1267 (La. 1981)). Indeed, "[t]he general rule is that a regulatory body may use its own judgment in evaluating evidences as to a matter within its own expertise...." Baton Rouge Water Works Co. v. Louisiana Pub. Serv. Comm'n, 342 So.2d 609, 611 (La.1977). The determinations made by the PSC are accorded a presumption of validity and the party who attacks the determination has the burden of proving its invalidity. Id. (citing Louisiana Oilfield Carriers Ass'n v. Louisiana Pub. Serv. Comm'n, 281 So.2d 698, 700 (La.1973)).

A reviewing court will not overturn a PSC determination of PC & N unless the determination is based on an error of law, or unless it is arbitrary or capricious. Id. (citing Miller Transporters, Inc. v. Louisiana Pub. Serv. Comm'n, 518 So.2d 1018, 1020 (La.1988); Matlack, 622 So.2d at 650). A PSC determination "is arbitrary and capricious only when the evidence in the record does not and could not reasonably support it." Mississippi Chem. Exp., 94-0440 at p. 7-8, 637 So.2d at 98. When reviewing PSC determinations, reviewing courts should not re-weigh the evidence or re-judge the credibility of the witnesses or substitute their findings for those of the PSC. Pontchartrain, 99-3184 at p. 3-4, 762 So.2d at 1085 (citing Mississippi Chem. Exp., 94-0440 at p. 7-8, 637 So.2d at 98). Rather, reasonable inferences of fact and of credibility made by the PSC should not be overturned on review even though the reviewing court may reasonably disagree. Id. Thus, if the PSC's determination is reasonably supported by the record, the reviewing court must affirm. Id.; Mississippi Chem. Exp., 94-0440 at p. 8, 637 So.2d at 99; Scotty's Vacuum Serv., Inc. v. Louisiana Pub. Serv. Comm'n, 450 So.2d 1303, 1304 (La.1984); B & M Trucking, Inc. v. Louisiana Pub. Serv. Comm'n, 353 So.2d 1323, 1328 (La.1977). When, as in this case, there are existing carriers, the burden is on the applicant to show that public convenience and necessity require the issuance of the certificate. LA.REV.STAT.ANN. § 45:164; Matlack, 622 So.2d at 656.

This Court has set down a two-prong test for determining whether an applicant has met his burden of showing PC & N in common carrier certificate cases:

(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 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, 622 So.2d at 655-56 (citing L & B Transp. Co. v. Louisiana Pub. Serv. Comm'n, 602 So.2d 712, 714 (La.1992); Gulf Coast Pre-Mix Trucking v. Louisiana Public Service Comm'n, 336 So.2d 849, 854 (La.1976)) (emphasis in original). This test is applicable not only in commodities cases, but also in household goods cases and requires an extensive review of the record. Normally, household goods cases are close cases due to the type of proof that is submitted. The two cases sub judice are no different; however, given the deference to which we accord PSC determinations within its expertise, we cannot say that the PSC acted arbitrarily or capriciously when it granted Easley and Perez restricted authority to transport household goods.

REQUIREMENT OF PUBLIC CONVENIENCE & NECESSITY

Easley testified that he was employed with Weekend Movers of Baton Rouge in late 1995 and 1996 where he worked fifty to sixty hours a week and sometimes more. While working with Weekend Movers, a three person operation, Easley gained experience in various aspects of the moving business including business management, actual moving, and customer relations. Easley occasionally answered the telephone and scheduled appointments and moves for customers. Easley gained personal knowledge of the demands placed on a moving business and had to turn down business numerous times, approximately three or more moves per month, because they were too busy. At the time of the...