Stewart Bonded Warehouse, Inc. v. Bevis

• Decision Date: 20 March 1974
• Docket Number: No. 44553,44553
• Citation: 294 So.2d 315
• Parties: STEWART BONDED WAREHOUSE, INC., et al., Petitioners, v. William H. BEVIS et al., Respondents.
• Court: Florida Supreme Court

Page 315

294 So.2d 315

STEWART BONDED WAREHOUSE, INC., et al., Petitioners, v. William H. BEVIS et al., Respondents.

No. 44553.

Supreme Court of Florida.

March 20, 1974.

Rehearing Denied June 7, 1974.

Hugo C. Edberg of Hill, Hill & Dickenson, Tampa, for petitioners.

Prentice P. Pruitt and L. Keith Pafford, Florida Public Service Commission, and David B. Erwin of Mason & Erwin, Tallahassee, for respondents.

DEKLE, Justice.

This cause comes before us on petition for writ of certiorari to the Florida Public Service Commission (hereafter referred to as 'the PSC'), seeking review of its order on reconsideration granting to Allen Bonded Warehouse (hereafter referred to as 'the applicant') a certificate of public necessity and convenience for the transportation of household goods between points in Pinellas, Pasco, Hillsborough and Manatee counties and all points in Florida. Art. V, § 3(b)(3), Fla.Const., F.S.A. and F.S. § 350.641, F.S.A. extend jurisdiction.

The applicant, whose previous state-wide certificate had been sold during a previous bankruptcy, had, prior to the application which gives rise to this action, a certificate of public necessity and convenience for transportation of household goods, but this certificate was limited to the four counties above-mentioned; the present application was for an extension of its certificate to authorize service to the entire state. This application was opposed by no less than seventeen motor carriers having authority to transport household goods, including our present petitioners.

A two-day hearing before an examiner was held in Tampa, at which the applicant produced only five public witnesses. One of these witnesses was a Chamber of Commerce representative from New Port Richey and another a Chamber of Commerce representative from Clearwater; both of these witnesses testified generally as to population growth in certain portions of the 4-county area, but neither had any specific knowledge as to the adequacy of household goods moving in the area. A third witness testified that, in connection with an attempt to help his daughter move from Dunedin to Miami, he had contacted four of the thirty-four household goods movers in the area, including the applicant, and was told that none of these four movers could provide the desired five or six day delivery of the small shipment involved (less than a full load); his testimony also revealed that only one of the four movers this witness contacted was authorized to engage in this move. Further testimony revealed the existence of no less than fourteen other movers in Pinellas County having state-wide authority at the time of the hearing, one of whom testified that he could have handled this shipment in three days, had he been contacted.

A fourth public witness testified as to difficulties she had experienced in a move from Clearwater to Miami, but it developed that her complaint was not against a mover in the Pinellas County area, but was due to difficulty she had encountered with a mover from Miami. The final public witness was a local carrier who genralized about the services of existing household goods carriers in the Clearwater area; his testimony was later characterized by the PSC as 'not specific enough to allow rebuttal' and as having no probative value.

Following the hearing, the examiner made his report, recommending that the application be denied. Applicant filed exceptions, but the PSC upheld the hearing examiner and denied the application on March 22, 1973. In this order, the PSC expressly discussed the testimony outlined above, recognized that the applicant's burden of proof is somewhat 'relaxed' in a household goods carrier case, and specifically took into consideration the difficulties often encountered in finding a public witness to support such an application. The PSC then found that 'the evidence presented by the applicant falls short of proving public convenience and necessity in this case.'

A petition for reconsideration was filed and on October 2, 1973, the PSC completely reversed its prior position and granted the application. In its brief order granting the application the Only reasons cited for this sudden change of position were:

(1) That the evidence discussed above had been reconsidered in light of the 'relaxed' standard of proof for household goods carriers' applications (a facet already considered), and

(2) that extraordinary population growth in a mobile society tends to lessen the adverse impact on existing carriers.

This order did not include any new findings of fact, nor did it recede from the findings made in the previous order; it merely stated that the PSC changed its mind upon re-examining the evidence in light of the 'relaxed' standards applicable--which were the very same standards which the PSC stated it was following when it entered its original order denying the application. We are now asked to determine if the order on reconsideration is proper. Hardly.

The first issue presented is whether the PSC's finding of public necessity and convenience upon such reconsideration is supported by competent, substantial evidence under the applicable 'relaxed' standards first set forth in Fogarty Brothers Transfer, Inc. v. Boyd, 109 So.2d 883 (Fla.1959), and applied to household goods carriers' applications in Allen Bonded Warehouse, Inc. v. Mayo, 247 So.2d 51 ...