1 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO 2 3 - - - 4 In the Matter of Pedro Mirabal : Case No. Notice of Apparent Violation : 16-2310-TR-CVF 5 and Intent to Assess Forfeiture : 6 - - - 7 PROCEEDINGS 8 Before Scott Farkas, Attorney Examiner, held at 9 the Public Utilities Commission of Ohio, 180 10 East Broad Street, Hearing Room 11-D, Columbus, 11 Ohio, on Tuesday, March 7, 2017, at 10:00 A.M. 12 13 - - - 14 15 16 17 18 19 20 21 22 Armstrong & Okey, Inc. 222 East Town Street, 2nd Floor 23 Columbus, Ohio 43215 (614) 224-9481 - (800) 223-9481 24 - - - 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 2 1 APPEARANCES: 2 Mr. Pedro Mirabal 3 c/o Mrs. Milena Spassova 1411 Kismet Parkway 4 Cape Coral, Florida 33993 5 Appearing Pro se. 6 7 Mr. Steven Beeler Assistant Attorney General 8 30 East Broad Street, 16th Floor Columbus, Ohio 43215 9 On behalf of the Staff of the 10 Public Utilities Commission of Ohio. 11 12 13 14 15 - - - 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 3 1 INDEX TO WITNESSES 2 - - - 3 DIRECT CROSS 4 STATE'S WITNESSES 5 Philip Haskins 6 19 6 Thomas Persinger 24 7 8 RESPONDENT'S WITNESSES 9 Pedro Mirabal 32 10 11 - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 4 1 INDEX TO EXHIBITS 2 - - - 3 STATE'S EXHIBITS MARKED ADT 4 1 Driver/Vehicle Examination 9 31 Report 5 2 Notice of Preliminary 27 31 6 Determination 7 8 9 10 - - - 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 5 1 Tuesday Morning, 2 March 7, 2017. 3 - - - 4 ATTORNEY EXAMINER: The Commission 5 has called for hearing at this time and place 6 The Matter of Pedro Mirabal Notice of Apparent 7 Violation and Intent to Assess Forfeiture. 8 Case No. 16-2310-TR-CVF. 9 My name is Scott Farkas, I am the 10 Attorney Examiner assigned to hear this case. 11 First I will take appearances. For the Staff. 12 MR. BEELER: Thank you, your Honor. 13 On behalf of the Staff of the Public Utilities 14 Commission of Ohio, Ohio Attorney General Mike 15 DeWine. I am Steve Beeler, Assistant Attorney 16 General, 30 East Board Street, 16th Floor, 17 Columbus, Ohio 43215. 18 ATTORNEY EXAMINER: Thank you. And 19 if you would state your name for the record. 20 MR. MIRABAL: Pedro Mirabal. 21 ATTORNEY EXAMINER: Okay. And you 22 are here without counsel; is that correct? 23 MR. MIRABAL: Yes, sir. 24 ATTORNEY EXAMINER: Okay. And why 25 don't I swear you in since you are going to be I ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 6 1 assume testifying today. So raise your right 2 hand. 3 (WITNESS SWORN) 4 ATTORNEY EXAMINER: Okay. Do you 5 understand the process, how the hearing is going 6 to go forward? 7 MR. MIRABAL: Yes. 8 ATTORNEY EXAMINER: Do you have any 9 questions about that? 10 MR. MIRABAL: No. 11 ATTORNEY EXAMINER: Okay. Then, 12 Staff, you can call your first witness. 13 MR. BEELER: Thank you, your Honor. 14 At this time Staff would call Philip Haskins to 15 the stand. 16 (WITNESS SWORN) 17 - - - 18 PHILIP HASKINS 19 called as a witness, being first duly sworn, 20 testified as follows: 21 DIRECT EXAMINATION 22 By Mr. Beeler: 23 Q. Good morning, Mr. Haskins. 24 A. Good morning. 25 Q. Start off here, please state your ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 7 1 full name for the record. 2 A. Philip Haskins. 3 Q. Where are you employed? 4 A. Employed by the Public Utilities 5 Commission of Ohio, Transportation Department, 6 Columbus, Ohio. 7 Q. And what is your position within 8 the Transportation Department of the Commission? 9 A. My job title is Hazardous Materials 10 Investigative Specialist. My duties include 11 investigating motor carriers and hazardous 12 material shippers in compliance with the motor 13 carrier safety regulations and the hazardous 14 materials regulations. 15 Q. Thank you. How long have you been 16 with the Commission? 17 A. Twenty-nine years. 18 Q. And you just explained your 19 position. What exactly are your duties in that 20 capacity? 21 A. My duties are to ensure that the 22 motor carriers comply with federal safety 23 regulations, and hazardous materials 24 regulations. And in addition we also do 25 inspections of facilities that ship hazardous ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 8 1 materials and ensure compliance of the hazardous 2 materials regulations. 3 And the biggest component of our 4 duties are doing roadside inspections of motor 5 carriers transporting hazardous materials. 6 Q. What sort of training do you have in 7 this area? 8 A. Extensive training from the Federal 9 Motor Carrier Safety Administration, United 10 States Department of Transportation, annual 11 training to ensure certification to conduct 12 these types of inspections, and complete these 13 duties in the course of my responsibilities to 14 ensure compliance with these regulations. 15 Q. And did you have additional training 16 when you first became a motor carrier inspector? 17 A. Yes. And then ongoing training 18 annually to conduct these inspections. The 19 federal government requires verification, annual 20 certification which must be met, which I do 21 meet. 22 Q. How many inspections on average do 23 you think you perform in a year? Just roughly? 24 A. Several hundred. Two hundred. 25 Q. Is it safe to say that the motor ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 9 1 carrier inspections are conducted to protect 2 the safety of Ohio's traveling public? 3 A. Yes. Yes. 4 MR. BEELER: Okay. May I approach 5 the witness, your Honor? 6 ATTORNEY EXAMINER: Yes. 7 MR. BEELER: I have what's in front 8 of me that has been marked as Staff Exhibit 1. 9 (EXHIBIT MARKED FOR THE PURPOSE OF 10 IDENTIFICATION) 11 Q. This is the Driver/Vehicle 12 Examination Report, an inspection date of 13 September 8th, 2016. And this is the inspection 14 report that happened on the day of the citation. 15 Go ahead an take a second to look 16 over that. Do you recognize this document? 17 A. I do. 18 Q. Is this document a Commission 19 record? 20 A. It is. 21 Q. It's kept in the ordinary course of 22 the Commission's business? 23 A. Yes. 24 Q. It's the practice of the Commission 25 to make this report; is that correct? ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 10 1 A. That is correct. 2 Q. Did you report on matters observed 3 pursuant to a duty imposed by law as to which 4 there was a duty by you to report? 5 A. Yes. And to execute an inspection 6 report. 7 Q. Is this document in the same 8 condition substantially as when you prepared it 9 originally? 10 A. Yes. 11 Q. And was the reason for you producing 12 this report an inspection of a motor carrier 13 vehicle operated by Silvicom, Inc? 14 A. Yes. This inspection was conducted 15 as an observation of a violation while I was 16 performing my normal roadside duties. I 17 happened to observe the vehicle fail to comply 18 with the hazardous materials regulations. 19 Q. Okay. So you remember 20 the inspection? 21 A. I do. 22 Q. Is the driver listed on the report? 23 A. The driver's name is Pedro Mirabal. 24 Q. Is Mr. Mirabal here today? 25 A. He is present, yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 11 1 Q. Does the driver get a copy of the 2 report at the stop? 3 A. He does. He gets an executed copy 4 at the completion of the inspection. 5 Q. Are there violations noted on the 6 report, and what are they? 7 A. Yes. In the middle of the document 8 you will see the violations in bold print. In 9 this report I documented two violations while 10 completing this inspection report. 11 Q. And there are two violations listed 12 there. The violation that we are dealing with 13 here today is the violation for Code 392.10A3, 14 failure to stop at railroad crossing; is that 15 correct? 16 A. That is correct. 17 Q. Okay. So, just turning to the day 18 of the inspection, you observed Mr. Mirabal fail 19 to stop at a railroad crossing; is that correct? 20 A. I did. 21 Q. Okay. Now, this is just your 22 narrative. How did you observe that? 23 A. The facts of the case are I was on a 24 two-lane rural route in Union County, and I was 25 moving while I was driving my state issued ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 12 1 vehicle. I happened to approach the crossing. 2 Traveled through the crossing, and in so doing I 3 observed in my rear view mirror the vehicle that 4 was transporting placardable hazardous materials 5 immediately behind me. 6 As I moved through the crossing I 7 had an unobstructed view of the vehicle that was 8 driven by Mr. Mirabal and observed him drive 9 through the crossing without stopping. 10 Q. How did you know it was hazardous 11 materials from your rear view mirror? 12 A. I made previous observations during 13 that moment observing that the vehicle was 14 placarded and displaying warning placards. The 15 vehicle was a large commercial vehicle 16 transporting, semi-trailer, with warning 17 placards displayed on all four sides. 18 The contour of the road is such that 19 it's not perfectly straight. There are curves 20 to the road. And in so doing I observed that 21 the vehicle behind me was displaying hazardous 22 material warning placards because he was 23 transporting hazardous materials. 24 Q. How long was Mr. Mirabal following 25 you or the vehicle following you? Do you ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 13 1 remember? 2 A. I don't have an independent memory. 3 I just remember my observation, immediately 4 behind me, my vehicle. 5 Q. And the actual -- how did you 6 observe the actual not stopping? Was it a roll 7 through or -- 8 A. Yes. My notes say that, the unique 9 characteristics of this is, normally you are 10 behind traffic, but in this instance I was 11 actually in front of the offending vehicle, and 12 I say in my notes "The driver was observed 13 transporting placardable hazardous material and 14 failed to stop at a grade crossing as required. 15 Driver approached CSX main line crossing and 16 only briefly slowed to approach crossing and 17 subsequently proceeded through grade crossing 18 without stopping as required." 19 Q. Can you go on reading your notes, 20 please, for the record? 21 A. Yes. "CMV was immediately behind 22 this inspector's vehicle and violation was 23 observed from that observation. The 24 relationship of distance was consistent through 25 the crossing with traffic on two-lane state ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 14 1 route moderately heavy. The driver stated he 2 was aware of the hazardous requirements specific 3 to grade crossings and further stated he felt he 4 slowed adequately to view clear traffic to 5 proceed through the crossing." 6 Q. You were going to say something 7 about the previous sentence first. Go ahead and 8 say that. 9 A. This is relevant because there is a 10 unique observation that I was in front of the 11 vehicle. The key element often is whether 12 the vehicle slowed or stopped. The rule says he 13 must stop. 14 I did not observe any braking action 15 as I was in front of the vehicle. Therefore, I 16 could not see any stop lamps illuminated. So my 17 physical location in front of the vehicle 18 allowed me to view the vehicle unobstructed and 19 saw the vehicle proceeded through the crossing 20 without stopping. 21 ATTORNEY EXAMINER: Could I just ask 22 a question for clarification? At what point in 23 time prior to you traveling over the grade 24 crossing did you observe the motion of the 25 vehicle driven by Mr. Mirabal? ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 15 1 THE WITNESS: Probably five 2 seconds. 3 ATTORNEY EXAMINER: So your 4 testimony is that at that point you drove over 5 the crossing and Mr. Mirabal drove his vehicle 6 over the crossing and the distance between your 7 two vehicles did not change at any time? 8 THE WITNESS: That's correct. 9 ATTORNEY EXAMINER: That is your 10 testimony. 11 THE WITNESS: That is my testimony. 12 ATTORNEY EXAMINER: Go ahead. 13 Q. And then just turning to the last 14 sentence, I just want to talk to you a little 15 bit about your discussion with Mr. Mirabal on 16 that -- at the time of the inspection. 17 So, Mr. Mirabal basically told you 18 on that day that he felt that he slowed 19 adequately? 20 A. Yes. At the beginning of 21 the inspection I notified Mr. Mirabal the reason 22 for his being stopped and inspected. And his 23 statement to me was that, how I documented it, 24 he stated he was aware of the hazardous 25 requirements, specifically to the grade ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 16 1 crossing. And further stated he felt he slowed 2 adequately to view traffic to clear 3 the crossing safely. 4 Q. So the driver did mention some 5 traffic approaching him from behind? 6 A. That I cannot testify. I can only 7 testify what my notes say. 8 Q. Do you believe the driver admitted 9 not stopping at the scene? 10 A. He made a reference to slowing, 11 that he made an excuse, if you will, for 12 the reason for not stopping. 13 Q. Okay. And traffic from behind a 14 commercial motor vehicle, that would not excuse 15 Mr. Mirabal from stopping at the crossing; is 16 that correct? 17 A. No, sir. 18 Q. It's not a mitigating factor here? 19 A. It is not. 20 Q. Just back to your notes, you 21 completed these notes contemptuousness or at the 22 same time the day of the report; correct? 23 A. At the day of the report, yes, sir. 24 Q. And just commonly as part of your 25 job you regularly are looking for driver's ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 17 1 behavior at railroad crossings; is that correct? 2 A. That's correct. 3 Q. And just Ohio drivers in general, 4 cars, trucks, they are all obligated to keep a 5 safe distance while following another vehicle; 6 is that correct? 7 A. That's correct. 8 Q. Okay. The stop was at 7:30 in the 9 morning; is that correct? 10 A. Yes. 7:31 actually. 11 Q. Okay. Was it light outside? 12 A. Yes. 13 Q. Okay. Nothing weather related that 14 would have impeded your vision; is that correct? 15 A. No. 16 Q. And your vision is okay? 17 A. Yes. 18 Q. You have regular checkups? 19 A. Yes. 20 Q. So, as a result, kind of to sum this 21 up, as a result of your observations on the day 22 of the citation you cited Mr. Mirabal with the 23 violation of failure to stop at a railroad 24 crossing; correct? 25 A. I did. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 18 1 Q. And that is your testimony today 2 here that you observed Mr. Mirabal fail to stop 3 at a railroad crossing; is that correct? 4 A. It is, yes. 5 Q. Anything else that you can think of 6 which would be important for the Commission to 7 know? 8 A. Well, as I stated the route 9 utilized, U.S. 42, is a two-lane rural route 10 with moderately heavy traffic. There are two 11 schools within approximately four miles of my 12 location or location of the crossing, which is 13 also of note that school buses must also stop at 14 grade crossings, which they do every day, I 15 observe them every day. 16 Unfortunately Mr. Mirabal did not 17 stop at the crossing and that is why he was 18 inspected for that violation. 19 MR. BEELER: No further questions 20 right now, Your Honor. I would reserve Mr. 21 Haskins for rebuttal if it's necessary. 22 And then again at this time I move 23 for the admission of Staff Exhibit 1 into the 24 record subject to cross-examination from Mr. 25 Mirabal. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 19 1 ATTORNEY EXAMINER: Okay. Mr. 2 Mirabal, do you have any questions for the 3 witness? 4 MR. MIRABAL: I do. 5 ATTORNEY EXAMINER: Okay. 6 CROSS-EXAMINATION 7 By Mr. Mirabal: 8 Q. I saw the officer in front of me. 9 ATTORNEY EXAMINER: I need you to 10 ask him questions. 11 MR. BEELER: Objection. 12 ATTORNEY EXAMINER: You will have a 13 chance to testify. 14 Q. Yes. Well, you told them that you 15 didn't see -- you don't remember about 16 the traffic behind, and I don't know if you 17 remember that when you pulled me over and I 18 explained to you about the traffic behind me. 19 Okay? The way this person was driving behind 20 me. Okay. 21 And then you told me, which was the 22 red car, you saw the car. You saw the car. 23 ATTORNEY EXAMINER: You have to ask 24 him a question. Like I said, you will have the 25 opportunity to tell your side of the story, but ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 20 1 if you have any questions for the witness you 2 need to form them, frame them in the form of a 3 question. 4 Q. Do you remember that? 5 A. I don't remember. 6 Q. When I told you about the traffic 7 behind me, I have been driving for 17 years, and 8 I never have any problem with my driver's 9 license. And I really don't want it to ruin my 10 record. 11 MR. BEELER: Objection, your Honor. 12 Testifying, you will have an opportunity to 13 testify. 14 ATTORNEY EXAMINER: Yes. Sustained. 15 You will have an opportunity. This is an 16 opportunity for you to ask questions of the 17 witness. 18 Q. You don't remember when you told me 19 about the red car? 20 MR. BEELER: Objection. Asked 21 and answered. 22 ATTORNEY EXAMINER: I will allow it. 23 Q. Do you remember? 24 A. I don't recall my exact dialogue. 25 I don't remember any discussion of a red car. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 21 1 MR. MIRABAL: Okay. 2 ATTORNEY EXAMINER: Do you have any 3 further questions? 4 MR. MIRABAL: No, that is 5 the question because I asked him when he pulled 6 me over. 7 ATTORNEY EXAMINER: Okay. I have a 8 few questions for you. 9 EXAMINATION 10 By the Hearing Officer: 11 Q. At the time that you -- your 12 testimony is that you were in front of Mr. 13 Mirabal and observed him travel over the tracks 14 without stopping. How did you come to inspect 15 his vehicle? Can you explain that? 16 A. Yes. Once I observed the commercial 17 vehicle pass through the crossing I waited until 18 I had a safe shoulder on the highway to inspect 19 the vehicle. So probably maybe almost a mile to 20 where I activated my traffic lights and pulled 21 the vehicle over on a safe shoulder section of 22 the road. 23 Q. So Mr. Mirabal passed you? 24 A. He did not. Our relationship never 25 changed. I was in front of Mr. Mirabal, and at ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 22 1 the time I observed a wide stop from the side of 2 the road I was activating my lights and pulled 3 Mr. Mirabal over to that part of the highway. 4 Q. So he was still in back of you? 5 A. Yes, he was. 6 Q. Okay. And he reacted to your 7 lights, he pulled over? 8 A. Correct. 9 Q. Alongside the road. US 42 is a 10 two-lane road? 11 A. It is. 12 Q. What is the speed limit of that 13 road? 14 A. 55, at that location. 15 Q. And at the crossing itself are there 16 gates and lights? 17 A. There is. 18 Q. Is there an exempt sign posted? 19 A. There is not. 20 Q. And on the day of your observation 21 of the violation what were the traffic 22 conditions? 23 A. At 7:30 in the morning I would say 24 moderate to heavy based on the schools in the 25 area and the fact that it is somewhat rural, so ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 23 1 it is a truck route. So I would say there were 2 vehicles utilizing the highway moderately. 3 Q. On the inspection report it 4 indicates in the vehicle identification section 5 that there was a cargo seal removed and a cargo 6 sealed replaced. Can you explain that? 7 A. Yes. Part of our duties conducting 8 these roadside inspections involves the 9 inspection of the cargo in addition to the 10 vehicle and the driver. This inspection 11 requires us to remove a seal. In this case it 12 was offered by the shipper in Florida, and I am 13 required to document removal and replacement of 14 the seal if I feel that inspection of the cargo 15 is necessary. 16 In this case that is exactly what I 17 did. I removed the existing seal, replaced it 18 with a State issued seal, signed the shipping 19 document provided by the driver, and made an 20 inspection and entry into the trailer to 21 investigate the commodity, the cargo. 22 Q. And are cargo seals normally used 23 with what is hazardous materials? I mean, with 24 cargo that is placarded? 25 A. Often, yes, your Honor, that is the ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 24 1 normal industrial practice to secure the cargo 2 with a metal seal. 3 Q. And what was the cargo in this case? 4 A. It was a corrosive chemical. I 5 believe it was -- I would have to check. 6 Q. If you know? 7 A. I know it was 43,008 pound shipment 8 of a corrosive material. 9 Q. And that corrosive material means 10 it's a hazardous material sufficient to require 11 placards? 12 A. Yes, sir. 13 ATTORNEY EXAMINER: That is all I 14 have. You may step down. 15 Do you have another witness? 16 MR. BEELER: I do, your Honor. At 17 this time the Staff would call Thomas Persinger 18 to the stand. 19 (WITNESS SWORN) 20 - - - 21 THOMAS PERSINGER 22 called as a witness, being first duly sworn, 23 testified as follows: 24 DIRECT EXAMINATION 25 By Mr. Beeler: ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 25 1 Q. Good morning. 2 A. Good morning. 3 Q. Please state your name for the 4 Examiner. 5 A. My name is Thomas Persinger. 6 Q. Where are you employed, Mr. 7 Persinger? 8 A. I am employed in the Transportation 9 Department of the Public Utilities Commission of 10 Ohio. 11 Q. What is your position? 12 A. I am a Compliance Officer. 13 Q. How long have you been in that 14 position? 15 A. Just short of six years. 16 Q. What are your duties in that 17 position? 18 A. Some of my duties include 19 determining fine amounts for violations that 20 result from a roadside inspection as well as 21 compliance reviews. 22 Then I also on occasion will do 23 roadside inspections where I go out to the field 24 and inspect vehicles for safety purposes. 25 Q. What sort of training do you have in ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 26 1 this area, qualifications? 2 A. Certain training I have gone 3 through, North America Standard classes, the 4 Part A, Part B classes that deal with driver 5 regulations, vehicle regulations as well as 6 several hazmat courses including federal hazmat, 7 bulk package, cargo tank. 8 Q. Okay. Just generally as part of 9 your duties just explain how forfeitures are 10 generally derived. 11 A. Forfeitures originate from roadside 12 inspections where an inspector or hazmat 13 specialist or State Trooper in uniform will 14 perform an inspection on a commercial motor 15 vehicle. Those inspections are uploaded into 16 the central database FMCS portal into Safetynet 17 and then from that our system will determine the 18 fine based upon the violation that is written. 19 Q. And the Commission applies this 20 process uniformally to all carriers, shippers, 21 drivers? 22 A. Correct. 23 MR. BEELER: May I approach 24 the witness, your Honor? 25 ATTORNEY EXAMINER: Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 27 1 MR. BEELER: I have here what has 2 been marked as Staff Exhibit 2. This is a 3 Notice of Preliminary Determination that was 4 sent to Mr. Mirabal. It was addressed to Ms. 5 Milena Spassova. And this is dated November 20, 6 2016. 7 (EXHIBIT MARKED FOR THE PURPOSE OF 8 IDENTIFICATION) 9 Q. Do you recognize this document? 10 A. Yes, sir. 11 Q. What is it? 12 A. It's a Notice of Preliminary 13 Determination letter. 14 Q. Okay. And this is the document that 15 was sent to the Respondent, Mr. Mirabal? 16 A. Correct. 17 Q. I noticed that it is addressed to 18 Ms. Spassova. Do you know why that is? 19 A. A lot of times the driver may 20 indicate or designate someone to have, or excuse 21 me, request a conference on their behalf. It 22 could be an attorney, it could be a carrier 23 official, employment official. 24 Q. At least to the best of your 25 understanding Ms. Spassova was a carrier ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 28 1 official? 2 A. Correct. 3 Q. But Mr. Mirabal is down in the text, 4 the body of this document as the driver in this 5 case? 6 A. Yes, sir 7 Q. Okay. As far as you know this 8 document was sent to the Respondent? 9 A. Yes, sir. 10 Q. Did you review this document in 11 preparation for hearing today? 12 A. Yes, sir, I did. 13 Q. And is this document a Commission 14 record? 15 A. Yes, it is. 16 Q. It's kept in the ordinary business 17 of the Commission? 18 A. Correct. 19 Q. Okay. Explain in this specific case 20 how the civil forfeiture was derived. 21 A. The forfeiture was derived based 22 upon the listing of the violations as a Group 4 23 violation. Depending upon what sort of Group 4 24 violation it is, it will receive a forfeiture 25 amount anywhere from $100 to $500. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 29 1 In this case any sort of failure to 2 stop at a railroad crossing where hazmat is on 3 board automatically generates a fine amount of 4 $500. 5 Q. Okay. So $500 is the forfeiture 6 amount in this case? 7 A. Correct. 8 Q. And that is a correct forfeiture 9 amount in your opinion? 10 A. Yes, sir. 11 Q. So the penalty here, is that 12 consistent with the recommended fine schedule 13 and recommended civil penalty procedure adopted 14 by the Commercial Motor Vehicle Alliance? 15 A. Yes, it is. 16 Q. Would you recommend this amount to 17 the Commission? 18 A. Yes, I do. 19 Q. Anything else important that we have 20 not talked about that you think the Commission 21 should know? 22 A. Not that I can think of. 23 MR. BEELER: Thank you. No further 24 questions, your Honor. 25 At this time I would move for the ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 30 1 admission of Staff Exhibit 2 subject to 2 cross-examination by Mr. Mirabal. 3 ATTORNEY EXAMINER: All right. Do 4 you have any questions? 5 MR. MIRABAL: No. 6 ATTORNEY EXAMINER: Okay. I just 7 have a question just for clarification. 8 EXAMINATION 9 By the Attorney Examiner: 10 Q. This is identified as Group 4. 11 Could you explain the grouping numbers 12 associated with fines that the Commission uses? 13 A. The grouping a lot of times will 14 vary depending upon what has been determined as 15 the severity of a violation. And a lot of times 16 the grouping, depending upon are you a Group 1, 17 Group 4, sometimes there could be multipliers if 18 you have more violations in a particular group. 19 And sometimes if you only have one 20 violation in a particular group you may not 21 necessarily get a fine for it. 22 Q. Okay. And there aren't any 23 multipliers in this case; is that correct? 24 A. Correct. 25 Q. And the system that you are using is ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 31 1 adopted from the Commercial Motor Vehicle 2 Alliance; is that correct? 3 A. Correct. 4 ATTORNEY EXAMINER: Okay. All 5 right. That is all I have. Thank you. 6 Did you have another witness? 7 MR. BEELER: No other witnesses, 8 your Honor. 9 ATTORNEY EXAMINER: Okay. The Staff 10 has moved for admission of Staff Exhibit 1 and 11 2. Do you have any objections to the admission 12 of those exhibits? 13 MR. MIRABAL: I am sorry. 14 ATTORNEY EXAMINER: Do you have any 15 objection to the admission of Staff Exhibits 1 16 or 2? 17 MR. MIRABAL: No. 18 ATTORNEY EXAMINER: Okay. Then they 19 will be admitted. 20 (EXHIBITS HEREBY ADMITTED INTO 21 EVIDENCE. 22 ATTORNEY EXAMINER: Now, Mr. 23 Mirabal, you will have a chance to tell your 24 side of this. Why don't you come up here, and 25 you can bring your papers with you up here. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 32 1 MR. MIRABAL: Can I do it from here? 2 ATTORNEY EXAMINER: That is okay. 3 MR. MIRABAL: I can see straight to 4 your face. 5 ATTORNEY EXAMINER: Okay. 6 (WITNESS SWORN) 7 - - - 8 PEDRO MIRABAL 9 called as a witness, being first duly sworn, 10 testified as follows: 11 MR. MIRABAL: Something I don't 12 understand over here. I have been driving for 13 almost 18 years. If you check my records I got 14 a great record. I never have any major problem 15 with my driver's license because this is my 16 living. 17 The officer was driving in front of 18 me for a while. I was watching the officer in 19 front of me. I would not do something like that 20 to risk my load, to risk somebody, because I 21 know I am going to get in trouble. Okay. 22 I had a big traffic behind me. The 23 car behind me, he was pushing me bad. This 24 driver, I cannot -- with this load I will not -- 25 I don't like to go like 55 miles an hour and ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 33 1 only two-lane road, only two-lane road because 2 this thing is. Okay. 3 So I was going under 55 miles. And 4 this driver I think he was -- he was dimming 5 the lights, he tried to move forward the line. 6 Okay. And then he was pushing me. 7 He was pushing me. I was put in danger with 8 this driver. 9 I didn't see the sign. When I saw 10 the sign for the railroad it was late. Okay. 11 I do try to stop the most I can, but if I tried 12 to stop complete I would stop in the middle of 13 the railroad, or I have to jerk my brake to 14 complete and risk the load, which I knew would 15 be dangerous. 16 That is something, that is what I 17 tried to explain to the officer when he pulled 18 me over. And then he told me which one, the red 19 car? So he saw the car, he saw the car. 20 I think in this case he should have 21 pulled over the car and see why he was driving 22 behind me that way and pushing the truck that 23 way. Okay. 24 I went down the hill because 25 something like that, and in Arizona and in the ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 34 1 wintertime, because car like that was pushing 2 me. I slowed down, this car tried to go over 3 me. When he tried to go over me he was sliding 4 under my trailer. I went to the shoulder and 5 the car go. And then when I tried to get in my 6 lane I went jackknife down the hill. 7 This is the reason why I always 8 check my traffic behind me. When I saw the car 9 and the way he was driving, something to me that 10 I have to keep looking at this car the way he 11 was driving behind me, because it was dangerous. 12 I didn't see the sign. When I saw 13 the sign it was a little bit late. I could stop 14 complete, but if I tried to stop complete the 15 load will move and we can have a spill and spill 16 hazmat. We could have something dangerous. 17 So I did the most safe I could, my 18 process, I tried my best. I didn't stop 19 complete because I didn't want no like that. 20 This is the only living I have. 21 My driver's license. And I sustain my dad, he 22 is sick, and I can't pay my house. 23 I will not put my driver's license 24 like that in the middle for two seconds, sir. I 25 would not. I will not. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 35 1 When I told the officer about the 2 car, he told me which one, the red car? He saw 3 the car. 4 ATTORNEY EXAMINER: Is that all you 5 have to say? 6 MR. MIRABAL: Yes, sir. 7 ATTORNEY EXAMINER: Okay. Do you 8 have questions? 9 MR. BEELER: One second, your Honor. 10 ATTORNEY EXAMINER: Sure. 11 MR. BEELER: Just one just to 12 reiterate. 13 I take that back. I have no 14 questions, your Honor. 15 ATTORNEY EXAMINER: Thank you very 16 much. 17 MR. MIRABAL: I will not try to do 18 something like that, believe me. This is my 19 living. This is the only way I can make a 20 living. 21 I will not try to do something like 22 that. And if you check my record you will see I 23 got a good record. For 17 years, keep 24 the record the way I keep it is not easy. 25 EXAMINATION ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 36 1 By the Attorney Examiner: 2 Q. Your testimony is that you traveled 3 over the crossing without stopping; correct? 4 A. No, I did stop, but when I -- 5 Q. You are testifying now that you 6 stopped? 7 A. No, I slowed down the most I can. 8 Q. So, you went over the crossing 9 without stopping though; is that correct? 10 A. I did, sir. 11 Q. And your testimony -- 12 A. I was going like probably like 3 -- 13 at the moment I was on the railroad might be 4, 14 5 miles an hour because I don't want to stop in 15 the middle of the railroad. 16 And that was the only choice to be 17 safe, make sure nobody come. 18 ATTORNEY EXAMINER: Do you have any 19 questions? 20 MR. BEELER: No, your Honor. 21 ATTORNEY EXAMINER: Okay. Do you 22 have any documents or anything you want to offer 23 as exhibits? 24 MR. MIRABAL: No, sir, I don't. 25 ATTORNEY EXAMINER: Okay. I have no ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 37 1 further questions. We will submit this on the 2 record and the Commission will render a 3 decision. Thank you. 4 MR. MIRABAL: Is this going to 5 suspend my driver's license? 6 ATTORNEY EXAMINER: The process, 7 what will happen now, is that the transcript 8 this gentleman here has been preparing, and 9 the exhibits will become the record in this 10 case. The transcript of the testimony of you, 11 the officer, this witness here, and the 12 questions we have all asked, that becomes -- 13 that and the exhibits become the record of 14 the case. 15 The Commission within three months, 16 two or three months, will render a decision on 17 this case. If they find against you your case 18 will be referred to the Bureau of Motor Vehicles 19 and the Bureau of Motor Vehicles is the forum 20 which they decide what happens to your license. 21 The Commission doesn't do anything 22 with your commercial motor vehicle license. The 23 Bureau of Motor Vehicles deals with those in 24 Ohio. 25 So the Commission doesn't have ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 38 1 anything to do with that. They will just render 2 a decision on whether or not there is a 3 violation of the law as alleged by staff. Does 4 that explain that? 5 MR. MIRABAL: Yes, sir. 6 ATTORNEY EXAMINER: Okay. All 7 right. Thank you. 8 (At 10:40 A.M. the hearing was 9 concluded) 10 - - - 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 39 1 CERTIFICATE 2 I do hereby certify that the foregoing is a true and correct transcript of the 3 proceedings taken by me in this matter on March 7, 2017, and carefully compared with my original 4 stenographic notes. 5 __________________________ 6 Michael O. Spencer, Registered Professional 7 Reporter. 8 - - - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481