_I*- * 4 PUBLIC SERVICE COMMISSION CHARLESTON

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1 _I*- * 4 M.C. CASE NO C AAA MOBILE HOMES, INCORPORATED, a corporation, New Martinsville, Wetzel County. Application for a certificate to operate as a common carrier. RECOMMENDED DECISION PROCEDURE On October 15, 1990, AAA Mobile Homes, Incorporated ("AAA"), corporation, New Martinsville, Wetzel County, filed an application for certificate of convenience and necessity to operate as a common carrier k motor vehicle in the transportation of-- mobile homes between points and places in Wetzel, Tyler, Pleasants, Doddridge, Ritchie, Marshall, Ohio, Brooke and Hancock Counties, on the one hand, and points and places in West Virginia, on the other hand. On October 19, 1990, the Applicant wa5 ordered to give notice of th filing of said application by publishing a copy of the October 19, 199 Order, once in a newspaper, duly qualified by the Secretary of State published and of general circulation in the above Counties. Protests wa received. The above application was scheduled for hearing to be held in th Council Chambers, City Building, 191 Main Street, New Martinsville, Wes Virginia, on the 14th day of February, 1991, at 9:30 a.m. Appearing c behalf of the Applicant was Thomas M. Woodward, Esquire. Mr. Rodney 'I Berry, Esquire, appeared on behalf of the following Protestants Panhandle Towing Company, Inc.; Mr. David Blazer, doing business e Blazer's Auto Body & Towing Service; Mrs. Della Rowan as President c Central West Virginia Mobile Home Sales, Inc.; Mr. Joseph Franklin Wilsor doing business as Wilson's Mobile Home Transport; Mr. Archie Lemastere doing business as Lemasters' Mobile Home; and Woodrow Knollinger, doir business as Little Creek Garage. Since Mr. Woodrow Knollinger did nc file a formal protest, Mr. Woodward, Counsel for "AAA", made a motion tha Mr. Knollinger not be allowed to testify. The Administrative Law Judge i of the opinion that, since Mr. Knollinger does have standing, hi testimony will be permitted. AAA Mobile Homes, Incorporated, filed its brief on March 18, 1991 The Protestants filed their brief on April 3, 1991.

2 EVIDENCE Mr. Paul L. Sturm, the Applicant and President of IIAAA", was calle as a witness. Mr. Sturm's duties include overseeing the day-to-da operations of the corporation. Mr. Sturm testified that his business involved retail sales of ne and used manufactured housing, as well as service of manufactured housing The business also owns three mobile home parks. (Tr., p. 10). Mr. Stur stated that his Company sells anywhere from 80 to 110 homes a year. Mr Sturm testified that his Company has a "B" license, which allows "AAA" t transport what the Company sells and what is taken in on trade. Of the 8 to 100 homes that are sold, the Company transports all of them. (Tr., p 13). Mr. Sturm testified that, in order to transport mobile homes, "AAA has a 1981 diesel unit, a 1981 International gasoline unit, a GMC truck which is equipped with a winch, a 1988 Ford van, a 1985 Chevrolet picku truck, and two Datsun pickup trucks. (Tr., p. 14). Mr. Sturm stated tha in the 12 years that he has worked with "AAA", there have been n complaints and no lawsuits filed. (Tr., p. 16). Mr. Sturm testified that he has applied for a license to transpor manufactured homes, by what is termed as a "K" license, to include th Counties of Brooke, Doddridge, Hancock, Marshall, Ohio, Pleasants Ritchie, Tyler and Wetzel Counties. Mr. Sturm testified that there has been several occasions where "AAA has been asked to transport manufactured homes other than those homes tha have been sold by "AM". According to Mr. Sturm, "AAA" could averag five, six, and perhaps seven calls in a week. (Tr., p. 19). Mr. Sturm testified that the 1980 Census indicates that there ar 6,505 manufactured homes in this area and that the industry's assumptio in the State of West Virginia is that mobile homes that are placed i rented property or in park areas will move in two years of the purchas date. (Tr., p. 33). Mr. Bill Cohen was called to testify on behalf of the Applicant. Mr Cohen is employed by "AAA" as a driver. Mr. Coleman testified that hi responsibilities are to make sure the home gets to its destination. Mr Cohen further testified that while working for "AAA", he has haule sectional homes, which include single-wide and double-wide mobile homes (Tr., p. 37). Mr. Robert Swain was called to testify as a witness on behalf of t Applicant. Mr. Swain is employed by the Doolin Security Savings & Loa New Martinsville, as the Consumer Loan Manager, and as part of his job, makes loans for mobile home buyers. Mr. Swain testified that he has no actually had the need to transport a mobile or manufactured home, howeve preliminary work was done and information was obtained. (Tr., p. 43 Mr. Swain added that he called one individual and that Company could no transport the mobile home. (Tr., p. 44). On cross-examination, Mr. Swain was Virginia Mobile Home Sales, Woody's Hou

3 Blazer, doing business as Blazer's Auto Body and Towing Services, an Joseph Franklin Wilson, doing business as Wilson's Mobile Home Transport Mr. Swain stated that he did contact Lester's Mobile Home and had n problem in getting a price. (Tr., pp ). Mr. Swain also stated tha he did contact Little Creek Garage. Morris Finneran was called as a witness on behalf of the Applicant Mr. Finneran is president of the New Martinsville Bank. Mr. Finnera testified that he has had the opportunity to make loans for mobile o manufactured homes and that during his two (2) year tenure with the bank it has not been necessary to transport a mobile home on the bank's behalf (Tr., p. 50). In looking at the bank records, Mr. Finneran further state that it has been about 4 1/2 years since the bank has moved a mobile home. (Tr., p. 50). Mr. Woodrow Knollinger was called as a witness on behalf of th Protestants. Mr. Knollinger lives in Wheeling, West Virginia, and is th owner of Little Creek Garage. Mr. Kollinger testified that he is in th business of moving mobile homes, setting up mobile homes, or selling ne or used mobile homes. Mr. Knollinger testified that he has authority i the Counties of Hancock, Brooke, Marshall, Ohio, Wetzel and Tyle Counties. (Tr., p. 58). Mr. Knollinger testified that the mobile home business is seasonal The wintertime is very slow, while during the spring and summer th business averages five transports a week. Per year, the Compan transports two double-wides a month. Mr. Knollinger testified that hi Company has the same special qualifications to move double-wide homes a the Applicant. (Tr., p. 59). Mr. Knollinger added that, since the coa mines have closed, the mobile home transport business has slowed down. (Tr., p. 60). On cross-examination, Mr. Knollinger agreed that since he does no advertise in Wetzel, Tyler, Doddridge or Pleasants Counties, he canno testify as to the need in those Counties. (Tr., p. 67). Mr. Archie Lemasters was called as a witness on behalf of th Protestants. Mr. Lemasters testified that he lives in Porter Falls, whic is approximately 80 miles from New Martinsville, and that he moves mobil homes for a living. Mr. Lemasters testified that, besides his business, there are seve other movers in Wetzel County. (Tr., p. 70). Mr. Lemasters' authorit also encompasses Tyler County. Mr. Lemasters also testified that, if th Applicant were granted a license, his business would be adverse1 affected. (Tr., p. 71). On cross-examination, Mr. Lemasters stated that he has never refuse to transport a trailer. (Tr., p. 74). Mr. Lemasters also testified tha he is not listed in the "Yellow Pages'' in Wetzel or Tyler Counties. Mr Lemasters also testified that he has not transported a mobile home thi year in Wetzel or Tyler Counties, even though he advertises in Wetzel an Tyler Counties. (Tr., p. 77). Mr. Lemasters also testified that ther

4 has not been a time in his business where he has received a call and no been able to respond. (Tr., pp ). Mr. Everett Rowan was called to testify on behalf of the Protestants Mr. Rowan is in the business of transporting mobile homes and has hi principal business and his principal office in Sutton, Braxton County West Virginia. Mr. Rowan testified that he has authority to move mobil homes in 37 counties. Mr. Rowan testified that in Hancock, Brooke, Ohio Marshall, Wetzel, Tyler, Doddridge, Ritchie and Pleasants Counties, ther has only been one mobile home transport this year. (Tr., p. 82). Mr Rowan also testified that you do not need expertise in order to move th double-wide mobile homes and that he has been moving the double-wides fo the last thirty (30) years. (Tr., p. 85). Mr. Rowan also testified tha he has moved three mobile homes in the area that the Applicant is applyin for. Since the first of the year, Mr. Rowan testified that he ha received two calls. (Tr., p. 86). David Blazer was called to testify on behalf of the Protestants. Mr Blazer is in the autobody, towing and mobile home business. Mr. Blaze testified that he bought his certificates from Kelly's Trucking i Moundsville, and they include Brooke, Ohio, Marshall, Tyler, Wetzel an Monongalia Counties. (Tr., p. 96). Mr. Blazer testified that, sinc January 25, 1991, he has received only two calls a month. (Tr., p. 99) Mr. Blazer also testified that additional competition would hurt hi business. Mr. Frank Wilson was called as a witness on behalf of th Protestants. Mr. Wilson lives in Ritchie County and is in the wrecke business and the transporting of the mobile home business. Mr. Wilso testified that he has authority in the Counties of Wetzel, Tyler, Ritchie Doddridge, Pleasants, Wood, Roane, Jackson, and many other counties. I the last eleven (11) months, Mr. Wilson testified that he has had probabl 15 calls. In the Counties that the Applicant has applied for, he get five calls a week. (Tr., pp ). Mr. Wilson also testified tha additional competition would hurt his business. (Tr., p. 108). DISCUSSION OF APPLICABLE LAW In the above case, the public witnesses offered by the Applicant di not show that there was a need in the Counties applied for. The pertinent statutory language regarding the granting o applications for certificates of convenience and necessity is set forth i West Virqinia Code 524A-2-5(a), which provides, in part, as follows: [I]f the commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the right granted by such certificate such terms and conditions as in its judgment, the public convenience and necessity may require.... Before

5 granting a certificate to a common carrier by motor vehicle the commission shall take into consideration existing transportation facilities in the territory for which a certificate is sought and, in case it finds from the evidence that the service furnished by existing transportation facilities is reasonably efficient and adequate, the commission shall not grant such certificate. It is well-established in this State that one applying for a commo carrier certificate over a defined territory must establish to th satisfaction of the Commission that Dublic convenience and necessit require the proposed service. Weirton Ice and Coal Supply Company v Public Service Commission, 161 W.Va. 141, 240 S.E.2d 686 (1977), and Wes Virqinia Code 24A-2-5. The Commission has interpreted this requiremen to mean that the applicant must demonstrate that he or she has th financial ability, experience and fitness to provide a needed, useful, an responsive public service, as well as that the public convenience an necessity require the proposed service. Ford Brothers, Inc., M.C. Cas No , April 9, The applicant must produce public witnesses wh are able to testify that the proposed service is needed in the area o application. Harless Excavating Company, Inc., M.C. Case No April 23, FINDINGS OF FACT 1. Mr. Sturrn, President of "AAA", testified that his Company sell from 8 to 110 homes a year. (Tr., p. 12). 2. Mr. Sturm testified that "AAA" could average seven calls a wee to transport a mobile home. (Tr., p. 19). 3. Mr. Sturm testified that "AAA" both hauls and sets up mobil homes. (Tr., p. 32). 4. Mr. Coleman, a driver for "AAA", testified that extra skill i required in hauling sectional homes. (Tr., p. 39). 5. Mr. Swain, the Consumer Loan Manager for Doolin Security Saving & Loan, testified that he has not had need to transport a mobile home bu did make preliminary calls to see who could transport homes and had n problems in getting a price. (Tr., p. 47). 6. Mr. Swain testified that he only called Archie Lemasters becaus he was referred to him and that he did not call Central West Virgini Mobile Home Sales; Panhandle Towing Company; David Blazer, doing busines as Blazer's Autobody and Towing Service; Joseph Wilson, doing business a Wilson's Mobile Home Transport; or Little Creek Garage. (Tr., pp ) 7. Mr. Finneran, President of the New Martinsville Bank, testifie that his bank has not had a mobile home transported in 4 1/2 years. (Tr. p. 50). PU6LIC SERVICE COMMISSION

6 8. Mr. Knollinger, a Protestant who has authority in a number oj the Counties requested by the Applicant, stated that, in the "on-season", there are an average of five calls a week. (Tr., p. 58). He furthei testified that, since the coal mines have closed, the transport businese has been slow. (Tr., p. 60). 9. Archie Lemasters, Protestant, testified that there are sever other movers besides himself in Wetzel County. (Tr., p. 70). 10. Mr. Everett Rowan, a Protestant, testified that in Middlebourne, New Martinsville, Paden City and Sistersville, he has transported threc mobile homes in the last year. (Tr., p. 83). 11. David Blazer, a Protestant, with authority in six of thc Counties the Applicant is applying for, stated that since January 25, 1991, he has received two calls from his six Counties. (Tr., p. 98). 12. Frank Wilson, a Protestant, who has authority in the Countie: that the Applicant is applying for, testified that, in the nine Countie: applied for, he has received five calls a week and there is no need foi additional haulers in these Counties. (Tr., p. 108). CONCLUSIONS OF LAW 1. The Applicant has failed to meet the burden of proof that public convenience and necessity require the proposed service. 2. The application for a certificate in this case should be denied, ORDER IT IS, THEREFORE, ORDERED that the application filed by AAA Mobilc Homes, Incorporated, for a certificate of convenience and necessity tc operate as a common carrier by motor vehicle in the transportation 01 mobile homes between points and places in Wetzel, Tyler, Pleasants, Doddridge, Ritchie, Marshall, Ohio, Brooke and Hancock Counties, on thc one hand, and points and places in West Virginia, on the other hand, be, and it hereby is, denied. The Executive Secretary is hereby ordered to serve a copy of thic order upon the Commission by hand delivery, and upon all parties of recorc by United States Certified Mail, return receipt requested. Leave is hereby granted to the parties to file written exception: supported by a brief with the Executive Secretary of the Commission withir fifteen (15) days of the date this order is mailed. If exceptions are filed, the parties filing exceptions shall certify to the Executive Secretary that all parties of record have been served said exceptions. PueLic SERVICE COMMISSION

7 If no exceptions are so filed this order shall become the order 01 the Commission, without further action or order, five (5) days followins the expiration of the aforesaid fifteen (15) day time period, unless it i: ordered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to ar Administrative Law Judge's Order by filing an appropriate petition ir writing with the Secretary. No such waiver will be effective until approved by order of the Commission, nor shall any such waiver operate tc make any Administrative Law Judge's Order or Decision the order of thc Commission sooner than five (5) days after approval of such waiver by thc Commission. -?&e.c&,j Mi es C. Car Administrative Lad Judge /I MCC:jas