I.00-11-054 L/pds

Before The Public Utilities Commission of The State Of California

Investigation on the Commission’s own motion into the operations and practices of Frank M. Quenga, an individual doing business as Hafa Adai (PSG 8894-B), to determine whether he has violated the laws, rules and regulations governing the manner in which charter-party carriers conduct operations and whether Frank M. Quenga is no longer fit to continue to conduct passenger transportation service. / FILED
PUBLIC UTILITIES COMMISSION
NOVEMBER 21, 2000
SAN FRANCISCO OFFICE
I.00-11-054

Order Instituting Investigation Into The Operations of

FRANK M. QUENGA, dba HAFA ADAI (PSG 8894-B)

The California Public Utilities Commission (Commission) pursuant to the California Constitution, Article XII, by Public Utilities (Pub. Util.) Code Sections 1031 et seq., the Passenger Charter-Party Carriers Act (Pub. Util. Code Section 5351 et seq.), and General Order 157-C, regulates carriers of passengers operating on the public highways. These statutes and regulations require carriers to establish reasonable fitness to conduct their passenger transportation service, and to operate safely and in compliance with Commission regulations, the California Vehicle Code, and the rules and regulations of an airport authority. These regulations impose specific requirements on charter-party carriers, which are designed to promote carrier and public safety.

Frank M. Quenga, operating as the sole proprietor of Hafa Adai, is a charter bus operator, licensed by the Commission to conduct for-hire charter transportation service in California. Commission records show that Quenga holds a Class B charter-party certificate (TCP 8894-B) originally issued by the Commission February 7, 1994. Quenga conducts charter operations in intrastate service in California and in interstate service from California to points in Nevada, reportedly operating six buses with a maximum capacity of from 42 to 56 passengers.

The Rail Safety and Carriers Division’s (RSCD) Enforcement Section (Staff) conducted an investigation of Quenga’s operation, and alleges that Mr. Quenga has violated statutes and regulations governing how charter-party carriers may operate. On January 14, 2000 Staff presented to Mr. Quenga Citation Forfeiture F-5029, with penalty in the amount of $5,000.00, citing violations of the Public Utilities Code and General Order 157-C. Mr. Quenga allegedly failed to answer the Citation as required, and ultimately objected to the amount of the penalty. He also expressed his belief that he did not commit all of the violations which Staff alleged. Since that date Mr. Quenga has failed to appear and produce records requested by Staff in May and June 2000.

Staff has therefore presented to the Commission the alleged violations, and requests that the Commission institute a formal investigation into the operations and practices of Frank M. Quenga, doing business as Hafa Adai. As discussed below, the prolonged period of alleged non-compliance by the carrier and the nature of the alleged violations leads the Commission to issue an OII.

I. STAFF ALLEGATIONS

Staff alleges that Mr. Quenga continued to operate after the administrative revocation of his charter-party carrier certificate for non-compliance with requirements. Moreover, Staff asserts that Mr. Quenga continued his operation uninterrupted after Staff directed him to cease operating because he did not hold valid authority. In the declaration in support of this Order Instituting Investigation Staff has documented that Mr. Quenga performed 113 intrastate trips while his permit was revoked, 25 of which were performed after Staff directed Quenga to cease and desist conducting any intrastate operation.

Staff alleges that Quenga has routinely engaged drivers without ensuring that all drivers have a valid California driver’s license, and without enrolling drivers in the DMV Pull Notice Program as required by the California Vehicle Code and Commission regulations. Staff’s declaration documents that Quenga maintained an employer Pull Notice Account with the Department of Motor Vehicles for six years without enrolling any of the drivers he employed. Staff alleges that Quenga violated the Commission’s drug and alcohol testing program requirements when he informed his contract drug testing facility that he was an owner-driver with no employee drivers, and did not ensure that his drivers were tested on a pre-employment or random selection basis. Staff further alleges that Quenga refused to submit himself for the required drug and alcohol test when notified by his contract testing facility that he was required to do so by random selection. Staff also alleges that Quenga has employed drivers for extended periods of time without obtaining and filing with the Commission the required evidence of workers’ compensation insurance.

Staff alleges that Quenga has failed to report to the Commission all equipment he has placed into passenger service, thereby preventing the Commission from accurately informing the California Highway Patrol of all equipment required to be annually inspected by the CHP.

Staff alleges that Quenga failed to report all of his revenue and pay all of the required fees to the Commission, reporting less than half of the revenue earned from one account alone during 1999. Staff alleges that Mr. Quenga engaged the services of independent contractor sub-carriers who were not validly licensed as charter-party carriers, and failed to evidence agreements of the subcarriage role and terms and conditions with sub-carriers with a written document as required by Commission regulations. Staff further alleges that Quenga has conducted interstate passenger operations while failing to register his interstate authority with the Commission.

Staff also presents information and alleges in its declarations that Mr. Quenga failed to respond to Staff’s October 13, 1999 and November 10, 1999 requests for production of records. Staff appeared unannounced at Mr. Quenga’s residence on November 18, 1999, the date

Mr. Quenga failed to appear with his records. Staff obtained from Mr. Quenga on November 18, 1999 and December 2, 1999 some records and information about his equipment and operations. After reviewing the information and conducting an investigation, Staff presented Quenga on January 14, 2000 with Citation Forfeiture F-5029 for violations including operating after revocation, and safety-related violations including failing to make certain that his drivers have valid drivers licenses and are tested for drugs and alcohol. As noted above, staff alleges that Mr. Quenga failed to answer the Citation as required, and later informed Staff by telephone of his intent to deny the citation

II. DISCUSSION

The requirements set forth in the Public Utilities Code for the operation of a charter-party business, as well as the rules which we have promulgated to implement those requirements, go in large part to the question of public safety. Moreover, we are concerned that this carrier continues to engage drivers without ensuring that they are validly licensed and tested for controlled substances. We are also concerned that the alleged violations of statutes and regulations documented by Staff have jeopardized public safety, and they could also demonstrate this carrier’s lack of fitness to continue to conduct the transportation services for which he has obtained Commission authority. Therefore, we believe that Frank M. Quenga, an individual doing business as Hafa Adai, should appear and show cause why his operating authority should not be suspended or revoked. We also believe that Mr. Quenga should be required to promptly and affirmatively show that he is in compliance with the Commission and California Vehicle Code requirements that he ensure his drivers are validly licensed; that he has enrolled all drivers in the DMV Employer Pull Notice Program; and that he is complying with Commission and Title 49 Code of Federal Regulation requirements for controlled substance testing of all drivers. These safety requirements are of such concern to this Commission that we believe Mr. Quanga'’ charter-party carrier certificate should be suspended 45 days after the effective date of this order if Mr. Quenga fails to provide the documentary evidence of DMV checks on driver-licensing, Employer Pull Notice and controlled-substance testing.

Good cause appearing, therefore,

IT IS ORDERED that:

1. An investigation on the Commission’s own motion is hereby instituted into the operations and practices of Frank M. Quenga, an individual doing business as Hafa Adai, Respondent, to determine whether:

a)  Respondent violated Pub. Util. Code §5379 by operating after the revocation of his Commission authority;

[18 counts, Enedina K. Lopez Investigative Report dated March 31, 2000, pp. 5-7, Attachments 5-6; August 3, 1999 – October 28, 1999.]

b)  Respondent violated Commission General Order 157-C, Part 5.01 by engaging a driver to drive a bus with a non-valid commercial driver’s license;

[4 counts, Enedina K. Lopez Investigative Report dated March 31, 2000, pp. 9-12, Attachments 5, 6, and 9; July 14, 1999 – October 27, 1999.]

c)  Respondent violated Commission General Order 157-C, Part 5.02 and California Vehicle Code §1808.1 by failing to enroll all drivers in the Department of Motor Vehicles Pull Notice Program;

[Enedina K. Lopez Investigative Report dated March 31, 2000, pp. 9-15, Attachments 5, 6, 8, 9, 12, 13; June – October 1999.]

d)  Respondent violated Pub. Util. Code §5374 (a)(2) and Commission General Order 157-C, Part 10 by failing to enroll all drivers in a drug testing certification program and by failing to comply with alcohol and controlled substance testing certification program requirements;

[Enedina K. Lopez Investigative Report dated June 28, 2000, p. 4, Attachment 1 and p. 5, Attachment 2; April 21, 1998 – June 20, 2000.]

e)  Respondent violated Pub. Util. Code §5378.1 by engaging drivers without maintaining evidence of workers’ compensation insurance on file with the Commission;

[Enedina K. Lopez Investigative Report dated March 31, 2000, p.9-16, Attachments 5, 6, 12, 13; June – December 1999.]

f)  Respondent violated Commission General Order 157-C, Part 4.01 by failing to report all equipment to the Commission;

[Enedina K. Lopez Investigative Report dated March 31, 2000, pp. 16-19, Attachments 14-18; June – October 1999.]

g)  Respondent violated Pub. Util. Code §423 by failing to report all gross operating revenue and failing to pay all fees to the Commission as required;

[1 count, Enedina K. Lopez Investigative Report dated March 31, 2000, p. 20, Attachments 7, 19; January 1, 1999 – December 31, 1999.]

h)  Respondent violated Commission General Order 157-C, Part 3.04 by using the services of a sub-carrier that did not hold active authority from the Commission;

[5 counts, Enedina K. Lopez Investigative Report dated June 28, 2000, pp. 8-10, Attachments 9-11; September 21, 1999 – October 22, 1999.]

i)  Respondent violated Commission General Order 157-C, Part 3.04 by failing to document sub-carrier agreements as required;

[4 counts, Enedina K. Lopez Investigative Report dated March 31, 2000, p. 21, Attachment 20; August – October 1999.]

j)  Respondent violated Pub. Util. Code §3902 by failing to register with the Commission his interstate authority as required;

[1 count, Enedina K. Lopez Investigative Report dated March 31, 2000, pp. 21-22, Attachments 2, 5; August – October 1999.]

k)  Respondent violated Pub. Util. Code §5389 by failing to produce records requested by a Commission employee;

[Enedina K. Lopez Investigative Report dated June 28, 2000, pp. 6-7, Attachments 5-8; October 26, 1999 to November 18, 1999 and March 31, 2000 to June 6, 2000.]

l)  Respondent should be fined up to $5,000 per violation of the Pub. Util. Code under PU Code §§ 5378(b) and 5415.

m)  Respondent is unfit to conduct charter-party passenger transportation service and whether his charter-party carrier certificate should be suspended or revoked pursuant to Pub. Util. Code § 5378(a).

2. A hearing shall be held for the Respondent to show cause why his operating authority should not be suspended for a term to be established or revoked. Not later than ten days prior to this hearing, Respondent shall provide counsel for Staff and the assigned Administrative Law Judge with the prepared testimony that he intends to advance at the hearing. At the hearing, the assigned Commissioner or Assigned ALJ will also determine whether there is sufficient evidence to issue an ex parte ruling ordering the immediate suspension of Respondent’s charter-party carrier permit.

3.  The Staff shall continue discovery and continue to investigate the operations of Respondent. Additional information about the respondent’s compliance after issuance of this order will be relevant on the issue of the likelihood to be compliant with statue and requirements that protect public safety. Additional information that Staff wishes to advance, as part of its direct showing in this proceeding, shall be provided to Respondent in advance of any hearings in accordance with the schedule directed by the Administrative Law Judge. Staff need only respond to discovery requests directed at Staff’s investigation of the Respondent and Staff’s prepared testimony offered in this proceeding.

4.  The charter-party carrier certificate of Frank M. Quenga shall be suspended 40 days after the date of this order is personally served on the Respondent, unless Mr. Quenga provides to the Director of the Rail Safety and Carriers Division of the Commission (Ken Koss), documents and information which shows:

a)  that he has enrolled all of his drivers in the DMV Pull Notice Program;

b)  that he is in compliance with California Vehicle Code §1808.1 which requires that he maintain current DMV driver’s records, which he has signed and dated, until receipt of the Pull Notice System report; and

c)  that he has informed his drug testing consortium of all drivers required to be tested for controlled substances, and is in compliance with Commission Resolutions TL-18716 and TL-18760, Commission General Order 157-C Part 10, and Title 49 Code of Federal Regulations Part 382 related to drug and alcohol testing.

If this information is not all supplied, the Director shall issue a notice of suspension to the Respondent, and the operating authority will not be re-instated except upon order of the Commission.

5. This ordering paragraph suffices for the “preliminary scoping memo” required by Rule 6 (c) of the Commission’s Rules of Practice and Procedure. This proceeding is categorized as an adjudicatory proceeding and will be set for evidentiary hearing. The issues of this proceeding are framed in the above order. A prehearing conference shall be scheduled separately by a notice for the purpose of setting a schedule for the adjudication of all issues in this proceeding including dates for the exchange of additional written testimony, determining which of the Staff’s percipient and collaborative witnesses will need to testify, and addressing discovery issues. This order, as to categorization of this proceeding, can be appealed under the procedures in Rule 6.4. Any person filing a response to this order instituting investigation shall state in the response any objections to the order regarding the need for hearings, issues to be considered, or proposed schedule. However, objections must be confined to jurisdictional issues that could nullify any eventual Commission decision on the merits of the alleged violations, and not on factual assertions which are the subject of evidentiary hearings.