980128.docx

DECISION MEMORANDUM
TO:COMMISSIONER HANSEN
COMMISSIONER NELSON
COMMISSIONER SMITH
MYRNA WALTERS
TONYA CLARK
DON HOWELL
RON LAW
ROBERT HORTON
DAVID SCOTT
WORKING FILE (Pat)
FROM:BRAD PURDY
DATE:JANUARY 28, 1998
RE:CASE NO. M-8195-2; STAFF’S MOTION TO REVOKE MOTOR CARRIER PERMIT NO. 8195 ISSUED TO MR.  LOREN TROYER, dba SEA BREEZE TRUCKING
On January 27, 1998, the Commission Staff filed a Motion to Revoke Motor Carrier Permit No.  8195 issued to Loren Troyer dba Sea Breeze Trucking.  Staff’s Motion is supported by the Second Affidavit of Robert Horton and a brief.  Mr. Horton’s second affidavit states as follows.
On November 15, 1995, the Commission’s Regulated Carrier Division received an Application from  Loren Troyer dba Sea Breeze Trucking, for motor carrier authority.  Mr. Troyer’s Application, however, did not contain all the necessary information required by the Commission’s Motor Carrier Rules.  Consequently, Staff sent a letter to Mr.Troyer requesting such information.  On January 2, 1996, the Commission issued Order No. 26291 granting Mr. Troyer motor carrier authority within 42 days if all the Commission requirements were met.  On January 8, 1996, the Commission Staff sent another letter to Mr. Troyer requesting five categories of information and/or documents.  On February 2, 1996, Mr. Troyer telephoned the Commission Staff indicating that he would send three of the five requested categories and request an extension of time in which to complete a compliance review.  The Staff, however, never received Mr. Troyer’s written request for an extension.  Following a subsequent conversation with Mr. Troyer, Mr. Horton testified that he wrote a memorandum to the Commission recommending that a conditional one year permit be issued to Troyer pending the successful completion of a compliance review.  
Mr. Horton further testified that he subsequently attempted to conduct a compliance review of Mr. Troyer’s operation on more than one occasion but that Mr. Troyer did not make himself available because of personal conflicts.  Mr. Troyer also did not respond to a number of Staff’s telephone calls.  Consequently, a letter was sent by Mr. Horton to Mr. Troyer setting an appointment with him to conduct the review at his personal residence.  Upon Mr. Horton’s arrival, however, no one was present at Mr. Troyer’s residence even though Horton had made telephone contact with Mr. Troyer’s wife at the residence several minutes before the appointed time and she offered to go get him.
Finally, according to Mr. Horton’s affidavit, Mr. Troyer also operates in the state of Oregon.  Staff recently obtained information from the Oregon Public Utilities Commission that Mr. Troyer has received a number of serious violations there causing him or his vehicle to be placed out of service for operating in an unsafe condition.  Mr. Horton concluded that without the ability to conduct a compliance review, Staff could not offer any assurance that Troyer is operating safely and otherwise complying with the Commission’s Motor Carrier Rules.
On August 22, 1997, Staff filed a Motion for Order to Show Cause against Mr. Troyer seeking an Order from the Commission requiring him to submit to a compliance review or show cause why he should not be held in violation of the Commission’s rules and regulations and subject to the penal provisions of Chapter 7, Title 61 of the Idaho Code.
On September 10, 1997, the Commission issued Order No. 27129 granting Staff’s Motion for Order to Show Cause and directing that Mr. Troyer submit to a compliance review no later than September 19, 1997, “or be subject to the penalties set forth in Title 61, Chapter 7 of the Idaho Code.”  The Commission further stated that “the failure of Mr. Troyer to comply with this Order shall result in the revocation of Sea Breeze Trucking’s Motor Carrier Permit No. 8195.”  Order No. 27129 at p. 1.
The Commission Staff sent a copy of Order No. 27129 to Mr. Troyer by Certified Mail.  A return receipt for the mailing was never received by the Commission Staff indicating that Mr. Troyer never retrieved the mail.  As the Second Affidavit of Robert Horton indicates, Mr. Horton then contacted Mr. Troyer by telephone and discussed Order No. 27129 with him.  Mr. Troyer agreed to comply with the Order and submit to a compliance review.  Staff gave Mr. Troyer the option of either submitting to an on-site compliance review or responding to a written questionnaire and request for documents which Staff would mail to him.  Mr. Troyer chose the latter option and on October 14, 1997, Staff mailed the questionaire/request to Mr. Troyer.  Mr. Horton followed up with a telephone call to Mr. Troyer on October 28, 1997, to ascertain whether he had received Staff’s mailing.  Mr. Troyer responded affirmatively but stated that he was too busy to complete the questionnaire and has decided to cancel his attempt to receive Idaho intrastate authority (he already has permanent Idaho authority).  Troyer agreed to mail a response to Staff’s written questionnaire within several days.  Staff has never received Mr. Troyer’s response.  
Idaho Code § 61-808 provides the Commission with the authority to suspend, revoke, alter or amend any permit issued to a motor carrier on the basis that the carrier has violated or refused to observe any of the Orders, rules or regulations of the Commission or any of the laws of the state of Idaho applicable to motor carriers.  Idaho Code § 61-701 provides:
61-701.  Enforcement of Law.—It is hereby made the duty of the commission to see that provisions of the constitution and statutes of this state affecting public utilities, the enforcement of which is not specifically vested in some other office or tribunal, are enforced and obeyed, and that violations thereof are promptly prosecuted and penalties due the state therefor recovered and collected and to this end it may sue in the name of the people of the state of Idaho.  
. . .
As indicated by the Second Affidavit of Robert Horton, Mr. Troyer has failed to submit to a compliance review in violation of the Commission’s Motor Carrier Rules as well as Order No. 27129.  Consequently, Staff has moved the Commission to revoke Mr. Troyer’s Motor Carrier Permit No. 8195
Commission Decision
Does the Commission wish to revoke Loren Troyer, dba Sea Breeze Trucking’s Motor Carrier Permit No. 8195?

Brad Purdy
vld/M:m81952.bp2