STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
DIVISION OF PUBLIC UTILITIES AND CARRIERS
89 JEFFERSON BOULEVARD
WARWICK, RHODE ISLAND 02888
| In Re: | D&T Cab, Inc. d/b/a Yellow Cab (MC-T-6) 31 Vermont Avenue Johnston, Rhode Island 02919 Transferor MDTA Transportation, Inc. 17 Greenwood Street Cranston, Rhode Island 02919 Transferee Application Pursuant To RIGL § 39-14-25 To Transfer Taxicab Certificate Of Public Convenience And Necessity Number MC-T-6 For Six (6) Taxicabs Operating In Cranston, Providence, and T. F. Green Airport |
Docket No. 11 MC 72
Hearing Date: December 16, 2011
On or about December 1, 2011, D&T Cab, Inc. d/b/a Yellow Cab (MC-T-6), 31 Vermont Avenue, Johnston, Rhode Island 02919 (the “Transferor” or “D&T Cab”), and MDTA Transportation, Inc., 17 Greenwood Street, Cranston, Rhode Island 02919 (the “Transferee”), filed an application with the Rhode Island Division of Public Utilities and Carriers (“Division”), seeking authority to transfer Certificate of Public Convenience and Necessity (“CPCN” or “certificate”) number MC-T-6. CPCN number MC-T-6 authorizes the holder thereof to engage in the transportation of passengers and their baggage, via taxicab, from points within the following locales: Providence, Cranston and T.F. Green Airport; it authorizes the use of six (6) taxicabs. The application was filed in accordance with the requirements of R.I.G.L. §39-14-25.
The following individuals entered appearances at the hearing:
Appearances:
David M. Campanella, Esq.
For the Transferor
David M. Campanella, Esq.
For the Transferee
The transfer of taxicab certificates is governed by R.I.G.L. § 39-14-25. That statute provides, in pertinent part:
…A proposed transfer of a certificate shall be approved only if the administrator finds the transferee to be fit, willing, and able, financially and otherwise, to render the service described and authorized in the certificate; further, the administrator shall only reissue and transfer a certificate upon evidence that the transferor of the certificate has, during the six (6) month period immediately prior to receipt of the transfer application…been rendering the service authorized by the certificate.
Thus, each party to the transfer has something to prove. MDTA Transportation, Inc., the Transferee, has to prove its fitness to hold and operate taxicab CPCN number MC-T-6. D&T Cab, the Transferor, has to prove that it has been providing taxicab services in Cranston, Providence and at T. F. Green Airport, during the period of time from June 1, 2011, through December 1, 2011 (the date on which the transfer application was filed).[1] Should either party fail to satisfy the Division as to its particular issue, the transfer application must be denied.
The record in this docket reflects that the Transferor, D&T Cab, has been providing regular taxicab services pursuant to the authority conferred under CPCN number MC-T-6. Therefore, the Division finds that CPCN number MC-T-6 is not dormant within the meaning of R.I.G.L. §39-14-26 and may be transferred.
The Division notes that every public utility and common carrier is subject to an assessment against that public utility’s or common carrier’s gross intrastate operating revenues under R.I.G.L. § 39-1-23, so long as those gross intrastate operating revenues for the year exceed $100,000.00. The Transferor in this case, D&T Cab, Inc., has been authorized to operate a total of six (6) taxicabs under CPCN number MC-T-6 during all of 2010 and virtually all of 2011 (as of the date of the hearing in this matter), realizing gross intrastate operating revenues, on an annualized basis, on those certificates in excess of $100,000.00 for each of those years. Thus, in order for this transfer to be approved and consummated, the assessments owed by the Transferor for each of those years must first be calculated and paid.
For that reason, and in view of the fact that we are only a few days from the end of calendar year 2011, the Transferor will be required to provide its operating data to the Division, using the Division’s annual report format for taxicabs, for all of calendar year 2011 (the Division already has D&T Cab’s 2010 annual report, and has provided the Transferor with its actual – as opposed to estimated – assessment for that operating year), by no later than close of business (4:00 p.m.) on January 6, 2012; the Division will make every effort to review the calendar year 2011 material and provide the Transferor with an estimated assessment for calendar year 2011 by close of business on January 13, 2012. The calendar year 2011 operating data will be filed with the Division’s Investigative Auditor, Mr. Anthony Manni. Investigative Auditor Manni will calculate the Transferor’s assessments for calendar years 2010 and 2011 based on the 2010 annual report and 2011 short-year annual report, and advise the parties of the total amount owed by the Transferor. The Transferor will be required to pay the total assessment for 2010 and 2011 by no later than five business days following the date on which Investigative Auditor Manni provides the Transferor with the estimated assessment for calendar year 2011.
The Division also notes that the Transferor, D&T Cab, was subjected to an audit by the Division’s Principal Auditor between February 9, 2009, and June 30, 2009, in which the Principal Auditor identified numerous violations of the Division’s Rules and Regulations Governing the Transportation of Passengers Via Taxicabs and Limited Public Motor Vehicles as well as the Division’s Rules and Regulations For Licensing Operators Transporting Passengers in Taxicabs, Limited Public Motor Vehicles and Public Motor Vehicles. The audit, in turn, led to a fitness proceeding concerning these violations that was resolved when the Division accepted a Settlement Agreement in which D&T Cab agreed to a fine of $100,000.00 (of which $50,000.00 was to be suspended for five years from the effective date (November 19, 2009) of Division Order number 19830 approving the Settlement Agreement while D&T Cab remained in a probationary status).[2]
Section 3 (“Terms Of Settlement”) of the Settlement Agreement approved by Division Order number 19830 provides, in pertinent part, as follows:[3]
Revocation of Yellow Cab Certificates
…
2. That the Advocacy Section and Yellow Cab agree that the only surviving Taxi Corporation will be D & T Cab, Inc. The Parties further agree that D & T Cab, Inc. will remain the holder of (1) one Certificate of Public Convenience and Necessity, MC-T-6.
3. That the Advocacy Section and Yellow Cab agree that D&T Cab will be authorized to operate up to six (6) taxicabs under the surviving certificate, MC-T-6. The Parties further agree that D&T Cab, Inc. will be authorized to operate in the following territories: Providence, Cranston and T.F. Green Airport.
…
Probation and Settlement Amount
9. That the Advocacy Section and Yellow Cab agree that Yellow Cab will be assessed a civil fine of one hundred thousand ($100,000.00) dollars (“Civil Fine”) for violations alleged herein. Fifty thousand dollars ($50.000.00 and “Suspended Fine”) of the Civil Fine shall be suspended for a period of five (5) years (“Probation Period”). Yellow Cab shall pay the unsuspended portion of the Civil Fine in five (5) payments (each a “Payment”) in the amounts and at the times (each a “Due Date”) set forth in the table below, and payable by check or money order to the Rhode Island Division of Public Utilities and Carriers:
Table 2
| Payment Number | Due Date | Payment |
| 1 | April 15, 2010 | $10,000.00 |
| 2 | April 15, 2011 | $10,000.00 |
| 3 | April 16, 2012 | $10,000.00 |
| 4 | April 15, 2013 | $10,000.00 |
| 5 | April 15, 2014 | $10,000.00 |
| | Total: | $50,000.00 |
**Please note that Payment Number Three (3) occurs on April 16, 2012, as the 15th day of April in calendar year 2012 falls on a Sunday.
…
Transfer and/or Sale of Certificate of Public Convenience and Necessity
10. The Parties agree that Yellow Cab may seek authority for the transfer of its taxicab certificate, MC-T-6, to a new certificate holder (“Transferee”) prior to the expiration of its Probation Period. Provided, however, this transfer shall be subject to the discretion of the Division and its applicable Rules and Regulations. That the Advocacy Section and Yellow Cab agree that any remaining portion of the Civil Fine due to the Division shall be paid in FULL as a condition of the transfer of such certificate.
11. That the Parties further agree that the Probation Period and Suspended Fine may not be imposed on any future Transferee. Provided further, however, the Division may cause said Period and Fine to attach to a new Transferee, in the event the Division has sufficient facts indicating that the Transferee’s affiliation or association with Yellow Cab is improper or otherwise deems it appropriate to attach such to a new Transferee.
(Emphasis added; boldface and italics in original.) Thus, under the terms of the original Settlement Agreement, the Transferor was required to pay any portion of the unsuspended civil fine that had not already been paid as a condition of transferring the certificate. Under the original Settlement Agreement, the Transferor would have to pay that installment and the other three remaining installments, a total of $40,000.00, before CPCN MC-T-6 would be allowed to transfer.[4]
When it became apparent that D&T Cab was not going to make the April 15, 2011, payment on its civil fine, the Advocacy Section of the Division brought D&T Cab back before the Division to determine whether or not D&T Cab’s, remaining CPCN, MC-T-6, should be revoked due to D&T Cab’s, failure to comply with the Settlement Agreement. Following negotiation between the parties, the parties proposed that the original Settlement Agreement approved by the Division be modified as follows:[5]
SECTION 3. TERMS OF SETTLEMENT
Based upon the foregoing, the Parties hereto make the following joint recommendation for resolving these proceedings with respect to Yellow Cab:
Transfer of Yellow Cab Certificates
1. That the Parties agree that Yellow Cab shall be allowed to operate for a six (6) month period from the date of the Division Order and Report, approving this Settlement Agreement.
2. The Parties agree that Yellow Cab may seek authority for the transfer of its taxicab certificate, MC-T-6, to a new certificate holder (“Transferee”) within the six (6) month period from the date of the Order and Report of the Division. Provided, however, this transfer shall be subject to the discretion of the Division and its applicable Rules and Regulations. That the Advocacy Section and Yellow Cab agree that the previously imposed Civil Fine payment of ten thousand dollars ($10,000) due to the Division by April 15, 2011 shall be paid in FULL as a condition of the transfer of such certificate.
3. That the Parties further agree that the Probation Period and Suspended Fine shall not automatically be imposed on any future Transferee. Provided further however, the Division may cause said Period and Fine to attach to a new Transferee in the event the Division has sufficient facts indicating that the Transferee is affiliated or in association with Yellow Cab.
4. That upon culmination of the aforementioned six (6) month period, if no valid transfer application is pending before the Division, Yellow Cab’s Certificate of Public Convenience and Necessity shall be revoked without need for any further hearing. Upon such revocation, Yellow Cab shall deliver to the Division the license plates for each of the taxicabs currently in operation.
Transfer and/or Revocation of Certificate of Public Convenience and Necessity
5. The Parties agree that upon transfer or revocation of the Certificate, Yellow Cab shall remit a civil fine of ten thousand ($10,000) dollars to the Division.
…
(Emphasis supplied; italics in original). Thus, for our purposes in the instant docket, the most significant modifications to the original Settlement Agreement in Division Docket number 09 MC 56 are three:
1. D&T Cab, Inc. d/b/a Yellow Cab (the Transferor in this docket) was given until December 23, 2011 (six months from the effective date – June 24, 2011 – of Division Order number 20389 approving an amended Settlement Agreement) to obtain Division approval for the transfer of CPCN MC-T-6.
2. If D&T Cab, Inc. d/b/a Yellow Cab did not obtain Division approval of a transfer of CPCN MC-T-6 by December 23, 2011, then CPCN MC-T-6 was to be revoked as a matter of law without need for further hearings on the matter.
3. Regardless of whether or not CPCN MC-T-6 was transferred or revoked by December 23, 2011, D&T Cab, Inc. d/b/a Yellow Cab agreed to remit to the Division a civil fine of ten thousand ($10,000.00) dollars.
Thus, in addition to being required to pay its assessments for calendar years 2010 and 2011 as a prerequisite to consummating this transfer, D&T Cab must also be required to remit $10,000.00 for that portion of its pending civil fine that was due April 15, 2011.
The Division realizes that the Transferor will not be able to pay its 2010 and 2011 assessments until after January 1, 2012, thus clearly missing its December 23, 2011, deadline for transferring CPCN MC-T-6. However, in view of the fact that this transfer application is currently pending, and has been pending since about December 1, 2011, so long as D&T Cab’s assessments for calendar years 2010 and 2011, and the $10,000.00 civil fine due, are paid in full by no later than five business days after the Division provides the Transferor with its estimated assessment for calendar year 2011, the Division will allow the transfer to be consummated.
With respect to the proposed Transferee, MDTA Transportation, Inc., the record establishes that the Transferee is fit, willing and able to provide the taxicab services authorized under CPCN number MC-T-6.
Accordingly, it is
(20594) ORDERED:
1. That the December 1, 2011, taxicab transfer application filing by D&T Cab, Inc. d/b/a Yellow Cab (MC-T-6), 31 Vermont Avenue, Johnston, Rhode Island 02919 (the “Transferor”), and MDTA Transportation, Inc., 17 Greenwood Street, Cranston, Rhode Island 02919 (the “Transferee”), seeking authority to transfer CPCN number MC-T-6 from D&T Cab, Inc., to MDTA Transportation, Inc., is hereby approved.
2. The Division’s approval is subject to fulfillment of the following terms and conditions by the deadlines specified:
By Close Of Business (4:00 p.m.) On January 6, 2012
a. The Transferor shall hand deliver to the Division (attention Investigative Auditor Anthony Manni) an annual report for all of calendar year 2011 by no later than close of business (4:00 p.m.) on January 6, 2012.
By Close Of Business (4:00 p.m.) Five Business Days After The Division Provides The Transferor With The Estimated Assessment For Calendar Year 2011
b. Based on the data provided by the Transferor in his annual report for calendar year 2011 as required by paragraph a, above, the Division will estimate the assessment owed by the Transferor for calendar year 2011, and provide the Transferor with the actual assessment due for calendar year 2010, and the estimated assessment due for calendar year 2011. The Division will contact the Transferor by telephone when the estimated assessment is ready and the Transferor will either report personally to the Motor Carrier Section of the Division the same day to pick up the assessment or provide the Motor Carrier Section of the Division with a facsimile transmission number or e-mail address where the estimated assessment may be delivered to the Transferor. For purposes of the deadline described in subsection b, below, delivery of the estimate will be considered to be the same day on which the Division contacts the Transferor and directs the Transferor to pick up the estimated assessment as described herein.
c. The Transferor shall pay the total assessment (the sum of the actual 2010 assessment and the 2011 estimated assessment) described in subparagraph “b” above by no later than close of business (4:00 p.m.) on the fifth (5th) business day following the day on which the assessment figures were presented to the Transferor.
d. The Transferor shall pay the $10,000.00 civil fine payment that was due on April 15, 2011, at the same time as it pays its assessments as described in paragraph c, above, that is, by no later than close of business (4:00 p.m.) on the fifth (5th) business day following the day on which the assessment figures were presented to the Transferor.
Within Ninety (90) Days Of The Effective Date Of This Report And Order
e. The Transferee shall hand deliver to the Division a letter of consummation executed by the Transferor and Transferee within ninety (90) days of the effective date of this Report and Order.
f. The Transferee shall file with the Division proof of financial responsibility consistent with the minimum requirements of R.I.G.L. §39-14-18 within ninety (90) days of the effective date of this Report and Order.
g. The Transferee must mark it taxicabs as required by the Division’s rules, and register with the Division the taxicabs intended to be used in the operation of his business ($20.00 fee per vehicle) within ninety (90) days of the effective date of this Report and Order.
3. Upon satisfactory completion of the aforementioned terms and conditions, a CPCN shall be issued. The Transferee shall not perform any of the transportation services authorized through this Report and Order until all of the aforementioned terms and conditions have been satisfied and the Motor Carrier Section of the Division physically issues a new CPCN to the Transferee.
4. If the condition outlined above in paragraph 2(a) is not satisfied by the close of business (4:00 p.m.) on January 6, 2012, the approval granted herein shall be of no further force and effect, and, in accordance with the Amended Settlement Agreement approved by Division Report and Order number 20389, CPCN Mc-T-6 “shall be revoked without need for any further hearing” and upon such revocation, the Transferor “shall deliver to the Division the license plates for each of the taxicabs currently in operation.”
5. If the terms and conditions outlined in paragraphs 2(c) and 2(d), above, are not satisfied by no later than close of business (4:00 p.m.) on the fifth (5th) business day following the day on which the assessment figures were presented to the Transferor, the approval granted herein shall be of no further force and effect, and, in accordance with the Amended Settlement Agreement approved by Division Report and Order number 20389, CPCN Mc-T-6 “shall be revoked without need for any further hearing” and upon such revocation, the Transferor “shall deliver to the Division the license plates for each of the taxicabs currently in operation.”
6. If the terms and conditions outlined above in paragraphs 2(e), 2(f) and 2(g), are not met within the prescribed ninety (90) days, the approval granted herein will be of no further force and effect, and, in accordance with the Amended Settlement Agreement approved by Division Report and Order number 20389, CPCN Mc-T-6 “shall be revoked without need for any further hearing” and upon such revocation, the Transferor “shall deliver to the Division the license plates for each of the taxicabs currently in operation.”
7. The Transferee’s business address must remain at the same location as listed on the application unless otherwise approved by the Division.
8. The Transferee is expected to familiarize itself with the Division’s “Rules and Regulations Governing The Transportation of Passengers Via Taxicabs and Limited Public Motor Vehicles ” (“Taxi Rules”); and the “Rules and Regulations for Licensing Operators Transporting Passengers in Taxicabs, Limited Public Motor Vehicles and Public Motor Vehicles” (“Operator Rules”) and observe such Rules in the conduct of its regulated transportation services. A copy of the Taxi Rules and Operator Rules may be obtained through the Clerk of the Division’s Motor Carrier Section.
DATED AND EFFECTIVE AT WARWICK, RHODE ISLAND, DECEMBER 20, 2011.
| | ___________________________ William K. Lueker, Esq. Senior Legal Counsel Hearing Officer |
| APPROVED: | ___________________________ Thomas F. Ahern Administrator |
(PROVIDED PURSUANT TO R.I.G.L. §42-35-12)
Please be advised that if you are aggrieved by this final decision (report and order) of the Rhode Island Division of Public Utilities and Carriers (“Division”) you may seek judicial review of the Division’s final decision by filing an appeal with the Rhode Island Superior Court. You have thirty (30) days from the mailing date (or hand delivery date) of the Division’s final decision to file your appeal. The procedures for filing the appeal are set forth in Rhode Island General Laws, Section 42-35-15.
Proceedings for review may be instituted by filing a complaint in the Superior Court of Providence or Kent Counties. Copies of the complaint must be served upon the Division and all other parties of record in your case. You must serve copies of the complaint within ten (10) days after your complaint is filed with the Superior Court.
Please be advised that the filing of a complaint (appeal) with the Superior Court does not itself stay enforcement of the Division’s final decision. You may however, seek a stay from the Division and/or from the Court.
The judicial review shall be conducted by the Superior Court without a jury and shall be confined to the record. The Court, upon request, shall hear oral argument and receive written briefs.
[2] See In Re Ms. Carol Allen, President, Yellow Cab, Inc., Fitness Hearing For Taxicab Companies Operating Collectively As “Yellow Cab” [… D&T Cab, Inc. (MC-T-6), …], Division Order number 19830 dated and effective November 19, 2009. The Order has been marked as Hearing Officer Exhibit 3 for Identification and inserted in the record.
[3] Hearing Officer Exhibit 3 for Identification at Attachment A, pages 9, 11-12.
[4] Hearing Officer Exhibit 3 for Identification.
[5] See In Re Ms. Carol Allen, President, D&T Cab, Inc. d/b/a Yellow Cab, Inc., Fitness Hearing For D&T Cab, Co. d/b/a Yellow Cab, Inc. (MC-T-6), Division Order number 20389 dated and effective June 24, 2011, at Attachment A, pages 5-6. A copy of the Order has been marked as Hearing Officer Exhibit 4 for Identification.