1 1 PUBLIC UTILITIES COMMISSION OF OHIO 2 3 PUBLIC UTILITIES ) COMMISSION OF OHIO, ) 4 ) (Petitioner) ) 5 ) Case No. 21-282-TR-CVF and ) 6 ) ROBERT BROWN, ) 7 ) (Respondent). ) 8 9 - - - - - 10 Tuesday, August, 30, 2022 11 - - - - - 12 Commission Hearing before Judge Jacky St. John, taken 13 before me, the undersigned, Lorraine A. Litvin, a 14 Notary Public in and for the State of Ohio, at the 15 Public Utilities Commission of Ohio, 180 East Broad 16 Street, Floor 11, Hearing Room 11D, Columbus, Ohio 17 commencing at 10:00 a.m. the day and date above set 18 forth. 19 - - - - - 20 21 22 23 24 25 2 1 APPEARANCES: 2 On Behalf of Public Utilities Commission of Ohio: 3 Werner L. Margard, III, Esq. 4 Principal Assistant Attorney General Public Utilities 5 30 East Broad Street, 16th Floor Columbus, Ohio 43215 6 614-995-5532 werner.margard@ohioattorneygeneral.gov 7 Also Present: 8 Christopher Rhodes, Esq. 9 In-House Counsel Public Utilities Commission of Ohio 10 11 - - - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 EXAMINATION INDEX 2 ANDREW BAUER DIRECT BY MR. MARGARD. . . . . . . . . . . . 6 3 BRADLEY LONG 4 DIRECT BY MR. MARGARD. . . . . . . . . . . . 12 5 - - - - - 6 EXHIBIT INDEX 7 Staff Exhibits Marked Admitted Exhibit 1 8 17 8 Exhibit 2 14 17 Exhibit 3 14 17 9 - - - - - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 JUDGE ST. JOHN: The Public 2 Utilities Commission of Ohio has set 3 for hearing at this time and place, 4 Case Number 21-282-TR-CVF captioned 5 in the matter of Robert Brown, Notice 6 of Apparent Violation and intent to 7 assess forfeiture. 8 Good morning, everyone. My name 9 Jacky St. John. I'm the attorney 10 examiner assigned by the Commission 11 to hear this case. 12 At this time we will take 13 appearances of the parties. We 14 currently only one party here today. 15 On behalf of staff? 16 MR. MARGARD: Thank you, Your 17 Honor. On behalf of the Public 18 Utilities Commission of Ohio, Dave 19 Yost, Ohio Attorney General, John 20 Jones, Section Chief, Public 21 Utilities Section, Assistant Attorney 22 General Werner L. Margard, 30 East 23 Broad Street, 26th floor, Columbus, 24 Ohio. 25 JUDGE ST. JOHN: Thank you. I 5 1 will note that it's just a few 2 minutes after 10:00. The respondent 3 has not yet appeared. 4 We will go off the record for a 5 few minutes to see if the respondent 6 might be stuck in traffic and might 7 show up here shortly. 8 (Brief Recess) 9 JUDGE ST. JOHN: I will note 10 that it's 10:13 a.m. and the 11 respondent has not yet appeared. At 12 this time we will proceed with 13 Staff's case. 14 MR. MARGARD: Thank you, Your 15 Honor. Preliminary to presenting my 16 case, I would respectfully move for 17 default judgment against the 18 respondent. The respondent has an 19 obligation to prosecute his request 20 for hearing. Having failed to do so, 21 the Commission will provide that he 22 is in default. I would request a 23 default judgment be rendered in this 24 case. 25 JUDGE ST. JOHN: Thank you. I 6 1 will take the motion under 2 advisement. 3 MR. MARGARD: Pending your 4 ruling, I would respectfully call 5 Inspector Drew Bauer to the stand. 6 JUDGE ST. JOHN: Good morning. 7 Please raise your right hand. 8 ANDREW BAUER 9 called for examination, after having been first duly 10 sworn, was examined and testified as follows: 11 JUDGE ST. JOHN: You may proceed 12 with your questions. 13 DIRECT-EXAMINATION 14 BY MR. MARGARD: 15 Q Please state your full name. 16 A Drew Bauer. 17 Q By whom are you employed and in what capacity? 18 A I'm a motor carrier enforcement inspector with 19 the Ohio State Highway Patrol. 20 Q What's your business address, if you know it? 21 A I don't know it. West 140th Street in Cleveland, 22 Ohio. 23 Q Thank you very much. What are your duties and 24 responsibilities generally? 25 A Conduct road-side inspections under Title 49 of 7 1 the Federal Motor Carrier Safety Regulations. 2 Q How long have you performed those duties? 3 A A little over 3 years. Beginning in August was 4 my 3-year mark. 5 Q Do you have any special training or 6 certifications that allows you to perform these 7 duties? 8 A All of Part A and Part B and Hazmat and passenger 9 vehicle classes through NAS. 10 Q In the scope of your job, your job 11 responsibilities, did you have occasion on the 26th of 12 January of 2021 to inspect a vehicle that was driven 13 by Robert Brown? 14 A Yes. 15 Q Do you have today, as you testify, an independent 16 recollection of that inspection? 17 A I do not besides based off of the inspection 18 report that we're looking at. 19 Q Have you had an opportunity to -- first of all, 20 let me ask you did you prepare a report as a result of 21 that inspection? 22 A Yes, sir. 23 Q Do you have before you what's been marked for 24 purposes of identification as Staff Exhibit Number 1? 25 A Yes. 8 1 MR. MARGARD: Your Honor, I 2 would respectfully request the 3 Driver/Vehicle Examination Report 4 dated January 26th, 2021 be marked 5 for purposes of identification as 6 Staff Exhibit Number 1. 7 JUDGE ST. JOHN: That will be 8 so marked. 9 - - - - - 10 (Staff Exhibit Number 1 was 11 marked for identification.) 12 - - - - - 13 Q In addition to this document you have other 14 records that are maintained by the Patrol at your 15 disposal, is that correct? 16 A Yes, sir. 17 Q And you have reviewed those documents as well, is 18 that correct? 19 A Yes, sir. 20 Q Did those help to refresh your recollection of 21 this inspection? 22 A Correct. They did, sir. 23 Q What type of inspection did you conduct on that 24 day? 25 A I conducted a Level 2 walk-around inspection of 9 1 the vehicle and driver. 2 Q Very briefly what does that entail? 3 A It would entail making sure your driver's license 4 is valid, all your qualifications are up to date, and 5 also on the vehicle everything besides the brakes. So 6 lights and mechanical features, of the vehicle itself. 7 Q In the course of your inspection did you find any 8 violations of the motor carrier? 9 A Yes, I did. 10 Q Are those violations noted on Staff Exhibit 11 Number 1? 12 A They are. 13 Q Does Staff Exhibit Number 1 accurately reflect 14 the inspection that you conducted on that date? 15 A Yes, sir, it does. 16 Q Do you believe that the information in this 17 document is truthful and accurate to the best of your 18 knowledge? 19 A Absolutely. Yes. 20 Q Now, among the violations is a violation that 21 states the driver prohibited from performing safety 22 sensitive functions. What does that mean? 23 A Operating a commercial motor vehicle. 24 Q What is the Drug and Alcohol Clearinghouse? What 25 did the driver require that he did not have here? 10 1 A As far as I know, to my knowledge the Drug and 2 Alcohol Clearinghouse is required for all commercial 3 motor vehicle drivers employed by the motor carrier. 4 They are subject to random drug tests and then 5 also if they would fail a drug test they would become 6 prohibited and have to enter some sort of a program in 7 order to come out of the prohibition. 8 Q Did you have some way of checking to see whether 9 he in fact had failed a test or how did you determine 10 there was a violation? 11 A The way we check it as an inspector road side is 12 you can check it through the FMCSA Safer Website or 13 the Civilist Commercial Driver License System. 14 By running the Pennsylvania operator's license 15 and his name, it will return back at the top of the 16 screen in red print that the driver is prohibited from 17 performing the safety-sensitive functions. 18 Q And Pennsylvania in this case because the driver 19 was licensed in Pennsylvania, correct? 20 A Federally as far as I know. The Civilist 21 Commercial Driver License Information System is across 22 the United States. We can Canadian licenses and 23 Mexican as well. 24 Q You specifically mentioned his Pennsylvania 25 license. 11 1 A Right. He was licensed through the State of 2 Pennsylvania, yes. 3 Q So in this instance you would have seen some kind 4 of notification that he was prohibited from driving, 5 is that correct? 6 A Correct. Yes, sir. 7 Q And as a result you gave him this violation. Did 8 you discuss these violations with him at all do you 9 recall? 10 A Yes, sir. 11 Q Do you recall anything that he might save said in 12 response? 13 A I do not recall anything specific. 14 MR. MARGARD: Thank you. I have 15 nothing further. 16 JUDGE ST. JOHN: Can I ask one 17 clarifying question? This is the 18 first time I have seen this type of 19 violation before. 20 Are you saying that he had not 21 registered through the Drug and 22 Alcohol Clearinghouse or that he was 23 tested through that Drug and Alcohol 24 Clearinghouse through a random drug 25 test and didn't pass it? 12 1 THE WITNESS: To the best of my 2 knowledge, you can be prohibited from 3 either of those events. When we 4 check it, all that comes back for me 5 to see is that they are prohibited at 6 that current time. 7 JUDGE ST. JOHN: Thank you. 8 MR. MARGARD: Nothing further, 9 Your Honor. 10 JUDGE ST. JOHN: Thank you. 11 MR. MARGARD: Your Honor, I will 12 call Mr. Bradley Long. 13 BRADLEY LONG 14 called for examination, after having been first duly 15 sworn, was examined and testified as follows: 16 DIRECT-EXAMINATION 17 BY MR. MARGARD: 18 Q State your name please. 19 A Bradley E. Long. 20 Q By whom are you employed and in what capacity? 21 A Public Utilities Commission, Assistant Chief of 22 Compliance Transportation Compliance Section. 23 Q What are your duties and responsibilities in that 24 position? 25 A To maintain the inspection files and records 13 1 filed through the hearing process, assist with 2 compliance and oversee the compliance officers as they 3 hold conferences. 4 Q In the scope of performing your duties did you 5 have an opportunity to review the Commission's file in 6 this case? 7 A I did. 8 Q Did you have an opportunity to review what's been 9 marked as Staff Exhibit 1, the inspection report? 10 A I did. 11 Q As a result of these violations, were notices 12 sent to the respondent? 13 A They were. 14 Q Do you have before you a couple copies of 15 notices? 16 A I do. 17 MR. MARGARD: Your Honor, may I 18 request these be marked for purposes 19 of identification as Staff Exhibit 20 Number 2, multi-page document dated 21 January 29, 2021 labeled Notice of 22 Apparent Violation and Intent to 23 Assess Forfeiture? 24 JUDGE ST. JOHN: That will be 25 so marked. 14 1 MR. MARGARD: Your Honor, May I 2 also be marked for purposes of 3 identification Staff Exhibit Number 4 3, multi-page document dated March 5 9th, 2021 labeled Notice of 6 Preliminary Determination? 7 JUDGE ST. JOHN: That will be 8 marked as well. 9 - - - - - 10 (Staff Exhibits 2 and 3 were 11 marked for identification.) 12 - - - - - 13 MR. MARGARD: Thank you. 14 Q Mr. Long, do you have those documents before you? 15 A Yes. 16 Q Are those the notices to which you referred 17 earlier? 18 A That is correct. 19 Q Are these the notices required to be sent by the 20 Commission's rules? 21 A They are. 22 Q And were in fact these notices provided to the 23 respondent? 24 A They were mailed, yes. 25 Q In your opinion, has the respondent received all 15 1 of the required notices? 2 A As far as we know he has. 3 Q In the notice it indicates that there's an intent 4 to assess a forfeiture in the amount of $3,274.00. Do 5 you see that? 6 A I do. 7 Q Can you briefly explain how those amounts were 8 determined? 9 A Sure. Non HAZMAT violations are assessed by what 10 we call groups. They're broken down into five groups: 11 Zero, one, two, three, four. 12 Group zero fines never receive a violation. 13 Groups 1 through 3 are equipment violations. 14 Group 4 violations are authority violations, 15 driver behavior violations, and things of that nature. 16 Our system, when a HAZMAT inspection or non 17 HAZMAT inspection is completed, the inspector uploads 18 the inspection and it's brought into Safety Net which 19 is then brought into sales force, our system in 20 compliance. 21 Our system automatically sees the violations and 22 puts them in the proper grouping and then assesses 23 them based on their groups. 24 Groups 1 through 3 would only receive a violation 25 or assessment fine forfeiture amount if the inspector 16 1 writes that the violation itself was out service. 2 Group 4 is always going to receive a fine 3 regardless. In this case when the inspector uploaded 4 his inspection report, the system noticed that there 5 was a Group 1 violation for a log book violation that 6 he marked out of service and a Group 4 violation for 7 prohibited from performing safety-sensitive functions 8 for the DACH violation. 9 At that time the system applied the proper 10 forfeiture amount of $3,174.00 for the Group 4 11 violation. That's consistent across the board. It 12 doesn't matter what company, what driver, gets that 13 violation, and the $100.00 applied to the false 14 reported driver's record of duty status also 15 consistent across the board. It's based on fines and 16 recommendations by the CSA. 17 Q By the -- 18 A Commercial Safety Alliance. 19 Q Thank you. 20 And so these fines are consistent with those 21 recommended by the CVSA? 22 A That's correct. 23 Q So in your opinion are the forfeitures proposed 24 in this case both accurately determined and reasonable 25 in nature? 17 1 A They are. 2 MR. MARGARD: Thank you, your 3 Honor. I have nothing further. 4 JUDGE ST. JOHN: Thank you. 5 MR. MARGARD: Your Honor, with 6 that I would respectfully rest my 7 case and move for THE admission of 8 staff Exhibits 1, 2 and 3. 9 JUDGE ST. JOHN: Staff Exhibits 10 1, 2 and 3 are hereby admitted into 11 the record. 12 - - - - - 13 (Staff Exhibits 1-3 were 14 admitted into the record.) 15 - - - - - 16 JUDGE ST. JOHN: With that, 17 thank you everyone for your 18 participation today and we will now 19 close out the record. Thank you. 20 - - - - - 21 (Hearing concluded at 10:25 a.m.) 22 - - - - - 23 24 25 18 1 CERTIFICATE 2 I, Lorraine A. Litvin, certify that the foregoing 3 hearing is a true and accurate transcript of said 4 hearing taken at said place, date, and time as 5 aforementioned. 6 I do further certify that I am not a relative, 7 employee of, or attorney for any of the parties in the 8 above-captioned action; I am not a relative or 9 employee of an attorney for any of the parties in the 10 above-captioned action; I am not financially 11 interested in the action; I am not, nor is the court 12 reporting firm with which I am affiliated, under a 13 contract as defined in Civil Rule 28(D); nor am I 14 otherwise interested in the event of this action. 15 16 17 18 <%28852,Signature%> 19 Lorraine A. Litvin, Notary Public in and for the State of Ohio. 20 My commission expires August 4, 2026 21 22 23 24 25