UNION TRANSFER AND STORAGE v. Lefeber

• Decision Date: 01 August 2000
• Docket Number: No. COA99-1085.
• Citation: UNION TRANSFER AND STORAGE v. Lefeber, 533 S.E.2d 550, 139 NC App. 280 (N.C. App. 2000)
• Court: North Carolina Court of Appeals
• Parties: UNION TRANSFER AND STORAGE CO., INC., Smith Dray Line & Storage Co., Inc., Eugene V. Nix And Dixie C. Nix d/b/a Four Seasons Moving Company, And Wile Transfer And Storage Co., Inc., Intervenors-Protestants-Appellants, v. Nicolas William LEFEBER d/b/a Select Moving, Petitioner-Appellee, and State of North Carolina ex rel. Utilities Comm'n, Respondent-Appellee.

533 S.E.2d 550

139 NC App. 280

UNION TRANSFER AND STORAGE CO., INC., Smith Dray Line & Storage Co., Inc., Eugene V. Nix And Dixie C. Nix d/b/a Four Seasons Moving Company, And Wile Transfer And Storage Co., Inc., Intervenors-Protestants-Appellants, v. Nicolas William LEFEBER d/b/a Select Moving, Petitioner-Appellee, and State of North Carolina ex rel. Utilities Comm'n, Respondent-Appellee.

No. COA99-1085.

Court of Appeals of North Carolina.

August 1, 2000.

Parker, Poe, Adams & Bernstein, L.L.P., by James C. Thornton and Jason J. Kaus, Raleigh, for intervenors-protestants-appellants.

No brief for petitioner-appellee.

No brief for respondent-appellee.

TIMMONS-GOODSON, Judge.

On 19 January 1999, Nicolas William Lefeber d/b/a Select Moving ("petitioner") filed an application for a certificate of public convenience and necessity with the North Carolina Utilities Commission ("the Commission"), seeking common carrier authority to transport Group 18-A household goods throughout the State of North Carolina.

Moving companies who had previously been authorized by the Commission to provide intrastate, long-distance moving services, namely Union Transfer and Storage Co., Inc., Smith Dray Line & Storage Co., Inc., Eugene V. Nix and Dixie C. Nix d/b/a Four Seasons Moving Company, and Wile Transfer and Storage Co., Inc. ("intervenors"), filed a joint protest and petition to intervene in the matter. The Commission granted their motion to intervene.

The following evidence was presented at the hearing before Hearing Examiner Barbara A. Sharpe. Petitioner worked as a florist for approximately forty-five years. While petitioner had provided local moving services in Florida in the mid-1970's for several years, he had no experience in providing statewide moving services in North Carolina or in any other state. At the time petitioner applied for a certificate, his moving equipment consisted of a 1979 Dodge van and moving dollies. Petitioner had no employees, office or storage facilities when he applied for the certificate, but he intended to acquire them.

Intervenors are sometimes idle due to a lack of demand for movers. They are capable of accommodating the demand for intrastate moving services in the Hendersonville area and have never turned away a customer as a result of communication problems.

The Hearing Examiner issued a recommended order denying petitioner's application on 28 April 1999. Petitioner filed exceptions and the Commission heard oral arguments on the exceptions. On 30 June 1999, the Commission entered its final order, which included the following pertinent findings of fact:

4. [Petitioner] owns a 14½ foot van suitable for the movement of household goods along with dollies. He plans to purchase additional equipment and vehicles as needed. If this application is granted, [petitioner] will purchase the required liability and cargo insurance for his vehicle and file the required tariff of rates and charges. [Petitioner's] assets exceed liabilities.

....

6. [Petitioner] speaks Spanish and four other languages and will be of service, especially in the Hispanic community, as well as to any other citizen. [Petitioner] plans to advertise over the Spanish-speaking radio and in the Spanish newspaper.

7. Glen Ray Cantrell has been employed by the Hendersonville County Chamber of Commerce for 39 years. He is the Executive Director of the Committee 100, which is the economic development arm for the county. Because of Mr. Cantrell's position with the Chamber of Commerce, he is familiar with the general population and industry trends in Henderson County. Since 1990, the population in Henderson County has increased by approximately 13.5%, which would be in the top five counties in Western North Carolina in percentage of increase in population. Statistics indicate that retirees account for the greatest percentage of increase with the majority of retirees coming from out of state. The Hispanic population is the fastest growing population in the nonwhite category.

8. Alfredo M. Oviedo is Pastor of the Hispanic Baptist Mission and lives in Edneyville in Henderson County. The church is a Spanish speaking church, and he has pastored the church since December 1992. The church has 45 members with an average Sunday attendance of 100. Pastor Oviedo testified that the Spanish speaking population has increased in Henderson County and that people move from one side of the county to the other on a fairly frequent basis. He further testified that usually at the beginning the people who come to the county are mostly single men who come to work. After a few years, the men have stable work and bring their families to the county which requires a move to a different place where they would like to live. Sometimes these people also move outside the county to other parts of the state, usually the Triangle (Raleigh, Durham, Chapel Hill) area. Besides the cultural shock which Hispanics who come to the county experience, language is also a barrier. On cross-examination, Pastor Oviedo stated that he was not aware of anyone being turned away by an existing mover in the area because of communication problems.

9. Daniel C. Gibson is retired and lives in Hendersonville. Prior to retirement he worked for First Union National Bank in Hendersonville for 38 years. Mr. Gibson first met [petitioner] in the early 1950's. [Petitioner] was one of his bank's customers, and [petitioner] regularly received large seasonal loans for his wholesale flower business. Mr. Gibson testified that [petitioner] always repaid the loans and always maintained good balances at the bank which indicated that he was a successful businessman.

10. Marie J.C. Lefeber is [petitioner's] wife and of Hispanic origin. If this application is granted, she plans to work in the office answering the telephone and taking orders for moves. Mrs. Lefeber speaks Spanish and socializes and interacts with other Hispanic [sic] speaking people in the area. This is one reason she and her husband want to offer moving services primarily to the Hispanic community.

11. Wayne Campbell is President of Union Transfer located in Asheville.... Mr. Campbell testified that the moving business is seasonal with the peak season being May to September in addition to certain times of each month. Conversely, there are off-peak times in which his company experiences idle equipment and employees.

12. In 1998, Union Transfer performed 85 intrastate moves, six of these moves were in the Hendersonville area. Mr. Cambell stated that he believes that another mover is not needed in the Hendersonville area. He also testified that he has never turned away a Hispanic customer because of communication problems and that most times the cost of the move is the problem. He also stated that his company is an agent for United Van Lines, and he has access to people at United Van Lines who speak different languages. Therefore, he does have access to someone when the need arises. On cross-examination, Mr. Campbell testified that he does not have any Hispanic employees but that he has actively been seeking some Hispanic employees for the past six months. He further testified that approximately 10-15% of Union Transfer's moving business is intrastate, 50-60% is interstate, and the remainder is local intracity moves.

13. Patricia Nelson Schnyder is Sales Manager for Wile Transfer located in Hendersonville.... Wile Transfer is an authorized statewide goods mover.... Ms. Schnyder testified that Wile Transfer has moved people of Hispanic origin on a national basis to the Hendersonville area. She further testified that she has talked with people of Hispanic origin in the Herdersonville area who desire a local move. She experienced no communication problems mainly because the people either used an interpreter or knew enough English to communicate. Wile Transfer is an agent for Allied Van Lines and has access to an interpreter through them as needed. Ms. Schnyder did state, however, that it would be a time-consuming process to obtain an interpreter from Allied Van Lines.

Based on its findings of fact, the Commission made the following relevant conclusions of law:

[Petitioner], in addition to his own testimony, presented four witnesses who testified in support of his application. None of the witnesses, however, testified to a personal need for a present or future movement of household goods....

....

Endorsement and support of [petitioner] by supporting witnesses does assist the Commission in making its discretionary decision as to whether there is a sufficient nexus to establish public demand and need for [petitioner's] services. In a "free enterprise system" of doing business, if the Commission in its discretion, can establish such a nexus based on the facts, testimony, and evidence presented, then [petitioner] is deserving of a grant of authority and the opportunity to conduct his business. Also, there was no evidence offered of any merit upon questioning by the Commissioners during oral argument that by granting this [petitioner] authority "would endanger or impair the operations of existing carriers contrary to the public interest." Therefore, based upon the testimony as a whole, the Commission concludes that [petitioner] has sustained his burden of proof that public convenience and necessity require the proposed service in addition to existing authorized transportation service.

The Commission concludes that [petitioner] has sustained his burden of proof and that public convenience and necessity require the proposed service in addition to existing authorized transportation service.

Based on its conclusions of law, the Commission rejected the recommended order and granted petitioner's application. Intervenors appeal.

On 30 September 1999, the North Carolina Court of Appeals ordered this matter consolidated with No. COA99-1020 pursuant to Rule 40 of the North Carolina Rules of Appellate Procedure.

By their only assignment of error, interven...