1 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO 2 - - - 3 In the Matter of: : :Case No. 07-1208-TR-CVF 4 Donald D. Davis d/b/a : Buckeye Transport. : 5 - - - 6 PROCEEDINGS 7 before Mr. Gregory Price, Attorney Examiner, at the 8 Public Utilities Commission of Ohio, 180 East Broad 9 Street, Room 11-G, Columbus, Ohio, called at 10 a.m. 10 on Monday, April 28, 2008. 11 - - - 12 13 14 15 16 17 18 19 20 21 ARMSTRONG & OKEY, INC. 185 South Fifth Street, Suite 101 22 Columbus, Ohio 43215-5201 (614) 224-9481 - (800) 223-9481 23 Fax - (614) 224-5724 24 - - - ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 2 1 APPEARANCES: 2 Marc Dann, Ohio Attorney General By Duane W. Luckey, 3 Senior Deputy Attorney General Public Utilities Section 4 By Ms. Sarah Parrot and Mr. Stephen A. Reilly 5 Assistant Attorneys General 180 East Broad Street, 9th Floor 6 Columbus, Ohio 43215 7 On behalf of the Staff of the PUCO. 8 Mr. Donald D. Davis 9 On his own behalf. 10 - - - 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 3 1 INDEX 2 - - - 3 Witness Page 4 Dena Burnett Direct Examination by Ms. Parrot 6 5 Cross-Examination by Mr. Davis 67 Redirect Examination by Ms. Parrot 84 6 Recross-Examination by Mr. Davis 88 7 John Canty Direct Examination by Ms. Parrot 92 8 Cross-Examination by Mr. Davis 112 Redirect Examination by Ms. Parrot 115 9 - - - 10 11 Staff Exhibit Identified Admitted 12 1 Carrier profile 12 91 13 2 Receipt page of the audit 22 91 14 3 Endorsement for Motor Carrier Policies of Insurance 39 91 15 4 Driver's Daily Log 48 91 16 5 Compliance Review Assessments 95 118 17 6 CR Assessment Matrix 97 118 18 7 Notice of Apparent Violation 19 and Intent to Assess Forfeiture 110 118 20 - - - Respondent Exhibit Identified Admitted 21 1 Envelope 83 -- 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 4 1 Monday Morning Session, 2 April 28, 2008. 3 - - - 4 THE EXAMINER: Good morning. The Public 5 Utilities Commission of Ohio has set for hearing at 6 this time and at this place in the Matter of the 7 Request of Buckeye Transport for an Administrative 8 Hearing, Case No. 07-1208-TR-CVF. 9 My name is Gregory Price. I am the 10 Attorney Examiner assigned to preside over this 11 hearing. 12 Let's start by taking appearances. Start 13 with the Staff. 14 MS. PARROT: Good morning, your Honor. 15 On behalf of the Staff of the Public Utilities 16 Commission of Ohio, Ohio Attorney General Marc Dann, 17 Duane Luckey, Section Chief, by Stephen Reilly and 18 Sarah Parrot, Assistant Attorneys General, 180 East 19 Broad Street, Columbus, Ohio 43215. 20 THE EXAMINER: Okay. Respondent. 21 MR. DAVIS: Donald Davis, Jewell Haubeil 22 with me, owner of what used to be Buckeye Transport, 23 Chillicothe, Ohio. 24 THE EXAMINER: Mr. Davis, as we discussed ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 5 1 off the record, it's my understanding Buckeye 2 Transport is not separately incorporated, but it is a 3 sole proprietorship; is that correct? 4 MR. DAVIS: It's a sole proprietorship. 5 THE EXAMINER: Okay. 6 MR. DAVIS: Or was, it's no longer. 7 Buckeye Transport is no longer in existence. 8 THE EXAMINER: Okay. You understand that 9 you could be represented by counsel if you chose at 10 this hearing; is that correct? 11 MR. DAVIS: Right. 12 THE EXAMINER: So you are appearing 13 without counsel of your own will. 14 MR. DAVIS: Yes, sir. 15 THE EXAMINER: Thank you. 16 Do you have any preliminary matters we 17 need to discuss? 18 MS. PARROT: I do not believe so, your 19 Honor. 20 THE EXAMINER: Let's go off the record 21 for one minute, please. 22 (Discussion off the record.) 23 THE EXAMINER: Ms. Parrot, call your 24 first witness. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 6 1 MS. PARROT: Thank you, your Honor. The 2 Staff calls to the witness stand Inspector Dena 3 Burnett. 4 (Witness sworn.) 5 THE EXAMINER: Please be seated and state 6 your name and business address for the record. 7 THE WITNESS: My name is Dena Burnett and 8 our office is at 180 East Broad Street, PUCO, and I 9 am in the Transportation Department. 10 THE EXAMINER: Ms. Parrot, please 11 proceed. 12 MS. PARROT: Thank you. 13 - - - 14 DENA BURNETT 15 being first duly sworn, as prescribed by law, was 16 examined and testified as follows: 17 DIRECT EXAMINATION 18 By Ms. Parrot: 19 Q. You mentioned you are employed by the 20 Public Utilities Commission in the Transportation 21 Department; is that correct? 22 A. Yes. 23 Q. And in what capacity are you employed, 24 please? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 7 1 A. I work in the field -- part of the field 2 staff and we do compliance reviews and safety audits 3 on trucking companies and I also do roadside vehicle 4 inspections. 5 Q. Do you have a rank or title that's 6 assigned to you? 7 A. We're called -- we are considered 8 investigators. 9 Q. Investigators, thank you. What are your 10 duties and responsibilities in your position? You 11 briefly mentioned that you conduct compliance reviews 12 and roadside inspections. Would you please elaborate 13 on that. 14 A. What we do is the Federal Administration 15 has a priority list in which assignments are made to 16 us if the carrier has previously had problems with 17 roadside or whatever and they have a high score, then 18 they would be assigned to us and then we would go out 19 after we contact them and do a compliance review. So 20 basically we do an investigation of the records and 21 write up violations for what they don't have. We 22 also do a lot of the training during the reviews. 23 And then as far as like roadside, we do vehicle 24 inspection reports, so a report is generated for ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 8 1 every compliance review, safety audit, or roadside 2 inspection. 3 Q. What equipment has been issued to you so 4 that you may perform your job? 5 A. I have a state car. I have a computer, 6 printer, scanner, of course, regulations, and just 7 general paperwork and everything that we need. 8 Q. And I assume the uniform that you are 9 wearing today has also been issued to you? 10 A. Yes, yes. 11 Q. How long have you worked for the Public 12 Utilities Commission? 13 A. I am a little over 22 years. 14 Q. And how long have you been employed by 15 the Commission as an investigator? 16 A. The first three years I did roadside 17 inspections, and then I transferred over into the 18 audit divisions which is enforcement now. 19 Q. Do you hold any certifications or have 20 you received any special training so that you may 21 perform your job? 22 A. Yes. I have been to several classes for 23 safety audits, compliance reviews, for doing vehicle 24 inspections because we have to be certified in order ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 9 1 to do the inspections, and they generally update, you 2 know, our training according. 3 Q. Are you familiar with the business known 4 as Donald D. Davis dba Buckeye Transport? 5 A. Yes. 6 Q. Did you conduct -- I'm sorry. Did you 7 conduct a compliance review of that company, and when 8 I say company, I mean Donald D. Davis dba Buckeye 9 Transport, in April of 2007? 10 A. Yes. 11 Q. Where did that compliance review occur? 12 A. At their place of business in 13 Chillicothe, Ohio. 14 Q. How is it that you came to conduct this 15 compliance review? 16 A. It was assigned to me because the carrier 17 was on the priority list and so, you know, I just 18 scheduled an appointment and made arrangements to do 19 the review. 20 Q. Would you please tell us more about the 21 priority list. I think you mentioned that before but 22 would you elaborate on that, please. 23 A. They have a system that's -- like I said, 24 it's generated with a score where companies have had ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 10 1 prior problems with could be from compliance reviews, 2 out of service vehicles, and drivers from roadside, 3 so if they have -- if they are above the national 4 average on any out of service, it usually puts them 5 onto a priority list and depending on the score 6 depends on the number that they are issued and what 7 category they are placed in. 8 Q. And you mentioned, I believe, that that 9 list is something I think you said the Federal 10 Administration creates? 11 A. Yes. The Federal Administration has the 12 list and then they assign certain ones to Ohio and 13 then they get assigned to each investigator. 14 Q. Was the compliance review that you 15 conducted of this company in April, 2007, your first 16 encounter with this company? 17 A. I believe so. 18 Q. Are you aware whether the company had 19 been subject to a previous -- previous compliance 20 review? 21 A. The carrier, I believe, was in the new 22 entrant program, so I believe they went through a 23 safety audit before the compliance review. I think 24 it was in 2004. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 11 1 Q. And what's involved in a safety audit, 2 please? 3 A. Basically a safety audit a rating does 4 not result. It's kind of educational so the company 5 brings in documents and we look at it to see if they 6 are in compliance or not. If not, we make 7 recommendations on what they need to do to get in 8 compliance, and they just -- they have to pass it or 9 so it's more of an educational-type program. 10 Q. So the company had gone through this 11 safety audit that you just described, but you are not 12 aware of a compliance review before the review that 13 you conducted in April. 14 A. No, not according to our carrier profile. 15 Whenever we go to do a review, we order a carrier 16 profile that gives us basically a history of the 17 company information like if they have had prior 18 audits or reviews. 19 Q. Okay. Thank you. In preparation for the 20 compliance review conducted by you in April of 2007, 21 did you do any research on the company? 22 A. Typically we order the carrier profile to 23 see what their history is. We do driver -- driver 24 record checks through our MCMIS system. Basically, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 12 1 you know, we will check SafeStat to see what kind of 2 roadside score they have to provide as much 3 information as we can. 4 MS. PARROT: May I approach the witness, 5 your Honor? 6 THE EXAMINER: You may. 7 Q. Ms. Burnett, I have handed you a packet 8 of the Staff's exhibits for this case that have 9 previously been marked for identification purposes. 10 I have also given a copy to the Respondent as well. 11 If you would, please direct your attention to the 12 document that's been marked for purposes of 13 identification as Staff Exhibit 1. Do you recognize 14 this document? 15 A. Yes, this is a carrier profile. 16 Q. And would you please just generally tell 17 us what does the profile show us about the company? 18 A. Well, the profile shows us the company 19 name, their DOT number or MC number if they have any, 20 basically their address, phone number, what type of 21 authority they have, if they are private, for hire, 22 what type of commodities that they transport, and 23 then in this case it does show that the safety audit 24 when they had showed that they exited the program on ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 13 1 7-15-05 with a pass. It also includes the 2 deficiencies at that time and that they have 3 insurance on file that they are -- it's active. It 4 would show us any roadside inspections that had been 5 conducted like within 365 days or accidents. 6 Q. On the first page of Staff Exhibit 1 7 would you please tell us more about the deficient 8 factors there. Do you see those at the bottom of the 9 first page? 10 A. Uh-huh. 11 Q. What do those represent? 12 A. Apparently during the safety audit the 13 carrier was not able to show that they were in 14 compliance with the sections, one being driver 15 qualification files, the second one being something 16 with drug and alcohol testing, I am not sure of the 17 section numbers, 11-hour rule, 14-hour rule, 60-hour 18 rule, shows false record of duty status, disciplinary 19 policy, periodic inspections which we call like 20 annual inspections, and maintenance. 21 Q. And then it looks like that continues on 22 the top of the second page of Staff Exhibit 1; is 23 that correct? 24 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 14 1 Q. And the section, do you see that to 2 the -- to the left of the description field, the 3 section, what does that refer to? 4 A. It would be -- actually it's the 5 regulation required from the Federal Motor Carrier 6 Safety Regulations. 7 Q. So that's the specific regulations? 8 A. Yes, that's the regulations. 9 Q. Okay. Thank you. Where does this 10 information come from in the profile? How do you 11 obtain this? 12 A. We go -- we have a -- we have an account 13 with the federal department, and it's through the 14 MCMIS program. 15 Q. And that stands for Motor Carrier 16 Management Information System; is that correct? 17 A. Yes, yes. We just call it MCMIS. 18 Q. And so is this a -- you obtain this 19 through -- is this an internet site; is that correct? 20 A. Well, actually we -- yes, we go online 21 because we have access, but you have to have a 22 password and an account to use the system. 23 Q. And it looks like if you go -- if you go 24 back seven or eight pages past the pages that are ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 15 1 headed MCMIS and then I see that there is a few other 2 pages that say SafeStat online. 3 A. Uh-huh. 4 Q. Do you see those? 5 A. Uh-huh. 6 Q. Where do those come from? 7 A. You can actually get through to this site 8 from the Federal Motor Carrier Safety Administration. 9 They have a home page. The public has access to this 10 site. 11 Q. And what does this portion of the profile 12 show us about the company? 13 A. Basically it shows that the carrier had 14 the high vehicle -- yeah, high driver out of service. 15 They were above the national average in the little 16 grid form here. 17 Q. You are pointing to that grid there; is 18 that correct? 19 A. Yeah. 20 Q. The bar graph summary? 21 A. Uh-huh. 22 Q. And then it looks like on the subsequent 23 SafeStat pages there we also see information about 24 vehicle and driver inspections; is that correct? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 16 1 A. Yeah. They added a site where they can 2 go in and check more detail from like inspection 3 reports. It would show each individual inspection. 4 It just does not include the driver information. 5 Q. Did you review this profile information 6 with the company -- 7 A. Yes. 8 Q. -- at any point? Yes? And did the 9 company verify this information or dispute it in any 10 way? 11 A. I don't believe there was -- I don't 12 recall any, you know, where they were disputing it 13 but, yes, I did go over it with them. 14 Q. Okay. Would you please tell us what was 15 your initial contact with the company? 16 THE EXAMINER: One minute, please. 17 Ms. Burnett, there is no SafeStat score. Can you 18 explain why there is no SafeStat score for this 19 company? 20 THE WITNESS: The federal agency has 21 removed it from this due to -- I am not really sure 22 of the -- if it's from accidents and stuff but they 23 no longer show the score on this report but it's 24 showed on like our report that the feds assign to our ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 17 1 supervisor. 2 THE EXAMINER: So they have a SafeStat 3 score, and they are selected for inspection because 4 of the SafeStat score. 5 THE WITNESS: Yes, but I am not sure why 6 they removed. I mean, it's been removed for quite 7 some time. 8 Q. (By Ms. Parrot) Does the carrier have 9 access to the SafeStat score? 10 A. I don't believe so. I mean, they can 11 still -- this pretty much tells them if they would be 12 on the SafeStat with the being above the national 13 average in any category. 14 Q. Again, I think we had asked the question 15 what was your initial contact with the company? 16 A. I believe it was a phone conversation 17 with Mr. Davis to schedule an appointment. 18 Q. And so the purpose of that phone call was 19 what exactly? 20 A. Is to make arrangements to come in and do 21 a compliance review to advise them of why they are 22 being reviewed and what type of records they would be 23 required to submit. 24 Q. So you did give them some guidance as to ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 18 1 what records to have -- 2 A. Yes. 3 Q. -- ready for the review? 4 A. Yes. And then typically we give them a 5 written request of what type of records that we are 6 looking at and require them to prepare or provide 7 some carrier information. 8 Q. Did you have any discussions with anyone 9 regarding the company prior to your initial contact? 10 A. I don't believe so. 11 Q. How much advance notice is the company 12 given that this review is to occur? 13 A. The regulation requires 48-hour notice. 14 They have 48 hours to produce the documents. In most 15 cases once I make the record request and start the 16 review if additional time is needed to provide some 17 documents for whatever reason, then generally I will 18 give the carrier a little bit more time than the 19 48-hour notification. 20 Q. So in this case the company had at least 21 48 hours' notice. 22 A. Yes. 23 Q. Did you provide the company with any 24 information to help them prepare for your visit? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 19 1 A. Yes. They had a written request that 2 shows generally that we would be looking at basically 3 the past 365 days from the time of the review that 4 they would be required to have on file six months' 5 worth of logs and supporting documents, a year's 6 worth of the accidents and any vehicle inspections, 7 drug and alcohol testing program for a year, 8 maintenance records for a year, driver vehicle 9 inspection reports for 90 days. 10 Q. What equipment did you use to perform the 11 compliance review? 12 A. Computer, printer, and I am not sure 13 positively if my scanner was working at that point. 14 Sometimes it hasn't been working recently. 15 Q. Did you use any equipment provided to you 16 by the company? 17 A. I don't recall. 18 Q. You mentioned a computer. Would you 19 please tell us what that's used for. 20 A. We have a program, it's a federal 21 program, it's called Capri and that's what we use to 22 document all the violations and the information 23 resulting with the review. 24 Q. And then do you -- how do you summarize ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 20 1 that, that information? 2 A. Once all the violations and 3 recommendations and carrier information is provided, 4 then the company signs a receipt that they received a 5 copy of the review. It goes into our office for to 6 be checked to see if everything has been completed 7 properly. Then it is forwarded to DOT where it is 8 reviewed there. 9 Q. So how is that information compiled? Is 10 it -- do you form a report? Do you have just notes 11 documenting your review? 12 A. No. We actually have a report. 13 Q. And at what point is that report actually 14 prepared in that process you just described? 15 A. Well, usually we prepare -- I mean, we do 16 the violations and everything as we go, document 17 examples of forms that we use, if we have any 18 violations with carrier information, and then at the 19 end of the review that's when they actually -- we 20 print it up and we do a close out and then they sign 21 off on the review. 22 Q. Okay. So it's by the end of the review 23 that there is a written report documenting your 24 findings. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 21 1 A. Yes. 2 Q. So in your opinion is the information in 3 the report accurate and complete at the time you 4 produced the report? 5 A. Yes. 6 Q. And do you send a copy of the report to 7 the Public Utilities Commission? 8 A. Yes. 9 Q. Okay. I would like to talk about the 10 review process a little bit here. Would you just 11 please tell us generally what's involved with the 12 review. 13 A. Okay. Generally I will start with 14 accidents first and then go to drug and alcohol 15 testing, driver qualifications, and then hours of 16 service, and then maintenance, the maintenance 17 records. 18 Q. I believe you mentioned that you're -- 19 you're reviewing records from certain time frames? 20 A. Uh-huh. 21 Q. And why is that? 22 A. The regulations require records to be 23 maintained for certain periods of time so each one 24 basically has its own requirements. The majority of ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 22 1 it, like I said, our policy is to go back 365 days. 2 Q. And what happens if a company is found to 3 be out of compliance during the review? What 4 happens? 5 A. Well, the program automatically generates 6 an anticipated rating for the carrier depending on 7 what violations, what their out of service rate is, 8 and their accidents, and it will appear on the report 9 so they have knowledge of what the anticipated rating 10 is. They are not officially rated until it goes 11 through the federal system, and it's approved by the 12 federal agency. 13 Q. So you are the individual that's 14 responsible for actually issuing the violations? Did 15 I understand correctly? 16 A. Yeah. We mainly -- we document the 17 violations and it goes into our office and if any 18 fines are assessed, it goes to our civil forfeiture. 19 Q. Would you please direct your attention to 20 what's been marked for identification purposes as 21 Staff Exhibit 2. Do you have that? 22 A. Uh-huh. 23 Q. Do you recognize this document? 24 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 23 1 Q. And would you please identify it for us. 2 A. This is a receipt page for the review 3 showing that the carrier -- that they agree with the 4 information that's provided on it and that they 5 received a number of pages per part of the actual 6 compliance review. So in this case they had two 7 pages to the part A which is general information 8 about the company, three pages for violations, three 9 pages for recommendations, and then one page with the 10 receipt page which was a total of nine pages. 11 Q. So this is the report that we were just 12 discussing; is that correct -- 13 A. Yes. 14 Q. -- that you prepared? 15 A. Yes. 16 Q. Did you prepare this report as part of 17 your official duties? 18 A. Yes. 19 Q. And is this document maintained in the 20 ordinary courses of business? 21 A. In our office? 22 Q. In the Commission, yes. 23 A. Yes. 24 Q. Thank you. Okay. You mentioned that ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 24 1 this first page is sort of a summary of the report; 2 is that correct? 3 A. Well, actually this page is like to 4 the -- it's kind of like at the end of the compliance 5 review, but we turn it in this way so they can keep 6 track. It helps our inside administration, but 7 typically the part A is actually going to be the one 8 page behind it. 9 Q. Okay. So this, again, just sort of wraps 10 everything up, I guess -- 11 A. Yeah. 12 Q. -- if you will. 13 A. Right. 14 Q. I would just like to note a few things on 15 this -- on this page real briefly. At the top of the 16 page do you see where it says legal and then Donald 17 D. Davis? 18 A. Uh-huh. 19 Q. Would you please tell us what that 20 information represents. 21 A. It shows there their legal name and since 22 the company is a sole proprietor we also list the 23 carrier -- or the individual's full name. In this 24 case they are doing business as Buckeye Transport. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 25 1 Q. And then to the left of that the USDOT 2 number field. Do you see that? 3 A. Uh-huh. 4 Q. Would you please tell us what that is. 5 A. That is the carrier's identification 6 number that's been issued to the carrier from the 7 Federal Administration. It's basically a number -- 8 identification number for -- each carrier has one. 9 Q. And what is the significance of that 10 number? 11 A. Basically any information like roadside 12 or whatever, all the information that is gathered for 13 this carrier would be placed under this DOT number so 14 it specifies -- it keeps everybody's information 15 according to carrier. 16 Q. Moving below do you see the operation 17 types section of the report there? 18 A. Uh-huh. 19 Q. Interstate, intrastate, would you please 20 tell us what that means. 21 A. This would tell us the carrier's 22 operation, whether they are interstate or intra, if 23 they haul any hazardous materials or not. 24 Q. And so in this case what was for this ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 26 1 particular company? 2 A. Okay. In this case the carrier was 3 interstate so they operated out of state only. They 4 didn't stay within the state of Ohio. 5 Q. Okay. So that means all of their trips 6 originated in one state, concluded in another state; 7 is that correct? 8 A. Yes. 9 Q. And then the non-HM indicates this is a 10 nonhazardous materials carrier? 11 A. Right. 12 Q. Thank you. I see at the bottom 13 signatures. Do you see that? Do you see the 14 signature next to reported by on the bottom of the 15 first page? 16 A. Uh-huh. 17 Q. Is that your signature? 18 A. Yes, reported by. 19 Q. And then below that received by. Would 20 you please identify that signature for us. 21 A. That would be Jewell's signature and she 22 was basically the individual that assisted me with 23 this review from the carrier, a carrier 24 representative. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 27 1 Q. Okay. And was this report signed in your 2 presence? 3 A. Yes. 4 Q. And the company is given a copy of this 5 report after it's signed; is that correct? 6 A. Yes. That's what they are signing for, 7 they received a copy of the actual report. 8 Q. In the upper right-hand corner do you see 9 that handwritten notation there that begins CR07 and 10 continues? 11 A. Uh-huh. 12 Q. Is that your handwriting? 13 A. No. 14 Q. Do you know what this number may 15 indicate? 16 A. No. I am not sure. 17 Q. Okay. So it's not something you wrote on 18 the report. 19 A. No. 20 Q. Otherwise does this report look like it 21 did at the time you prepared it? 22 A. Yes. 23 Q. And is this a standard format to this 24 report that's used in all compliance review cases? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 28 1 A. Yes. All compliance review and safety 2 audits would have this page. 3 Q. Thank you. Would you please turn the 4 page to the second page of Staff Exhibit 2. Do you 5 see the carrier classifications section? It's about 6 midway down the page. 7 A. Yes. 8 Q. And it indicates authorized for hire. 9 Would you please tell us what that means? 10 A. There everybody -- all the carriers have 11 a USDOT number. Some of them operate as a private 12 carrier, exempt for hire, and authorized for hire, or 13 if they are Hazmat, and for this case the carrier is 14 for hire. 15 Q. Which means? 16 A. Which means they don't actually own the 17 commodity; they are being paid to transport the 18 material. 19 Q. Okay. Thank you. The driver information 20 section a little further down, do you see that? 21 A. Uh-huh. 22 Q. What does that represent? 23 A. This represents the number of drivers, 24 that the carrier, you know, basically gives us the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 29 1 information on how many drivers that they have 2 operating for them at the time. 3 Q. Okay. So in this case you found that 4 there were two, two drivers -- 5 A. Yes. 6 Q. -- working for this company. 7 A. Yes. 8 Q. And then in the left portion of that 9 section do you see where it says inter and intra? 10 A. Uh-huh. 11 Q. And would you please tell us what that 12 means. 13 A. Okay. Basically this describes how many 14 drivers they would have that were inter or intra. In 15 this case it's inter only and that the drivers travel 16 beyond a 100-mile radius. 17 Q. Okay. Thank you. And then, finally, the 18 equipment section at the bottom of that page, would 19 you please tell us what we have there. 20 A. Basically at the time the carrier 21 explained that they had one tractor and two trailers 22 operating at the time. 23 Q. And those were both signed -- I'm sorry. 24 Both of the trailers and the tractor were owned by ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 30 1 the company; is that correct? 2 A. Yes. 3 Q. Would you please turn the page and 4 actually let's go two pages to part B, violations. 5 Do you see that? Would you please tell us what part 6 B of the report shows us. 7 A. Part B would actually be violations that 8 the carrier did not meet the regulations required for 9 their operation. 10 Q. Okay. And it looks like part B lists all 11 of the violations you indicated in the report kind of 12 one by one. 13 A. Yes. 14 Q. Let's kind of look at the first one in 15 detail just to be sure I understand the format here. 16 First, do you see where it says federal there? 17 A. Uh-huh. 18 Q. What does that mean? 19 A. That means it's a federal violation. 20 Q. And that's as opposed to what? 21 A. If they were operating intra and the 22 violation occurred during the intrastate move, it 23 would say state on there instead of federal. 24 Q. Okay. But, again, because the company ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 31 1 was operating interstate the federal regulations were 2 at issue. 3 A. Right. 4 Q. And then to the right of that where it's 5 primary and lists the number there, do you see that? 6 A. Uh-huh. 7 Q. Would you please tell us what that means. 8 A. This would be the section number of the 9 violation that they were not in compliance with so 10 this refers to the section number in the Federal 11 Motor Carrier section. 12 Q. And is that information entered into the 13 report by you? 14 A. Yes. 15 Q. Moving forward to the right, the columns 16 marked discovered and checked, what do those mean? 17 A. Mainly this would tell us the number of 18 violations discovered during the number that we would 19 check so like in this case we were checking for 20 basically the random program. That's why it would be 21 one of one. If it's a driver violation like with 22 driver qualifications, it would list the number of 23 drivers in violation of that violation and how many 24 we checked. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 32 1 Q. Okay. So how is that different than from 2 if you move over further again to the right where it 3 says driver, vehicles in violation, and checked, 4 what's the difference between those two? 5 A. They are pretty much the same. 6 Q. Okay. The description field, do you see 7 that moving further below here? The description, 8 what does that represent? 9 A. This is a general description in the 10 program that we would use to document each specific 11 violation. 12 Q. So general description so is that -- 13 A. It's already provided in our program. 14 Q. So it's populated by the regulation 15 number that you enter; is that how that works? 16 A. Yeah. There's -- there's different 17 section numbers and then we would go in and select 18 which section that they were in violation of. 19 Q. Okay. And the last section there, the 20 example, what is that? 21 A. We have to document an interstate move 22 per violation to show that we did have jurisdiction 23 either over the carrier or the driver, that they had 24 made an interstate trip. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 33 1 Q. Okay. Is that information entered by 2 you? 3 A. Yes. 4 Q. And does -- it's called example so does 5 that mean that it's just one example? It's not a -- 6 it's not an exhaustive list of all the violations? 7 A. No. It's just one example per violation, 8 and then actually the numbers would be indicated in 9 the discovered and checked is how many violations -- 10 how many were in violation versus how many we did 11 check. 12 Q. Okay. Thank you. And so then the 13 example is an example for one of those violations. 14 A. Right. 15 Q. The handwriting on this page, you see the 16 Cs with the dashes after them; is that your 17 handwriting? 18 A. No. 19 Q. Do you know what this means? 20 A. No. 21 Q. Okay. So it's not something you wrote on 22 the report. 23 A. No. 24 Q. Otherwise does this part B look like the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 34 1 report you prepared for the company? 2 A. Yes. 3 Q. All right. Let's go through the 4 violations. Thank you for explaining what the fields 5 mean. We are going to go through briefly and go 6 through each one so that we understand what's at 7 issue in the case. Let's go ahead -- we talked 8 briefly about what the fields mean but what was 9 actually at issue here with the first violation that 10 you found? 11 A. Okay. The first one each carrier is 12 required to do random drug and alcohol testing so 13 what we do is we look at the prior calendar year and 14 make sure that they were in compliance with drugs -- 15 it would be 50 percent of the driver positions and on 16 alcohol being the second one would be where it's 17 considered -- wait a minute. The first one is the 18 alcohol -- 19 Q. Yes, just looking at the first one. 20 A. -- and the second one is drug testing. 21 Q. Let's stick with the first one so the 22 first one is for random alcohol testing? 23 A. Yes. 24 Q. You mentioned 50 percent? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 35 1 A. Okay. They have to do 10 percent of 2 driver positions per calendar year. 3 Q. Okay. 10 percent for alcohol testing. 4 And it looks like you checked for one. You checked 5 one driver. Would you please tell -- what do the 6 numbers mean in this context? 7 A. Since they only have two drivers 10 8 percent would be their 50 -- one driver would be 9 their 50 percent. 10 Q. Okay. So their 10 percent for alcohol. 11 A. Yeah, I'm sorry. 12 Q. They were required to test at least the 13 one driver during that calendar year. 14 MR. DAVIS: Your Honor -- 15 THE EXAMINER: Mr. Davis? 16 MR. DAVIS: We have already established 17 here that we were in a drug and alcohol random 18 testing thing, a pool, and if they don't require 19 that, then how are we supposed to test our people if 20 they don't require it? 21 THE EXAMINER: I think you need -- if you 22 want to dispute the violations, I think you need to 23 wait, and you will have an opportunity to get up on 24 the stand and dispute it. If you have an objection ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 36 1 to the way the evidence is coming in, now would be 2 the time to make it but if you are -- 3 MR. DAVIS: I want to object to the way 4 the drug and alcohol testing is being presented to 5 the court, your Honor. 6 THE EXAMINER: Okay. Overruled. You 7 will have a chance later to explain why you believe 8 Ms. Burnett is wrong. 9 MR. DAVIS: I understand. Thank you. 10 Q. (By Ms. Parrot) Okay. So, again, this 11 review was conducted in 2007. You said you were 12 looking at the prior calendar year, so you were 13 specifically looking for testing done in 2006. 14 A. Yes. 15 Q. In the example field there you have 16 indicated that the average number of driver positions 17 in 2006 was two; is that correct? 18 A. Yes. 19 Q. That you found that zero tests were 20 conducted in 2006. 21 A. Yes. 22 Q. But the carrier should have conducted at 23 least one random test -- 24 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 37 1 Q. -- in 2006. Okay. So what, if anything, 2 did the carrier provide to you regarding alcohol 3 testing in 2006? 4 A. They did not provide any testing where 5 they met the requirements for random testing in 2006. 6 Now, if the carrier is in a consortium, okay, we will 7 take the annual stats from the consortium, and if 8 their numbers are correct, then the carrier is also 9 in compliance. 10 Q. Did you receive any information from a 11 consortium in this case -- 12 A. No. 13 Q. -- in 2006? 14 A. No, not at the time. I believe they 15 joined the consortium after the review or in 2007, 16 but it was not in 2006. 17 Q. Thank you. And then the second 18 violation, I think we have already briefly mentioned 19 it, that's for drug testing; is that correct? 20 A. Yes. 21 Q. I'm sorry, for controlled substances. 22 What did you find with respect to this? 23 A. That they provided no random drug tests 24 for 2006. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 38 1 Q. Okay. What's required in terms of 2 controlled substances testing? 3 A. They would have to do 50 percent of 4 driver positions. 5 Q. Okay. Again, we were dealing with two 6 drivers; they should have tested one driver? 7 A. Correct. 8 Q. But you found nothing, no evidence was 9 submitted to you during the review that testing was 10 done in 2006. 11 A. Right. 12 Q. Thank you. 13 THE EXAMINER: Just to be clear you did 14 not receive any evidence at the time of the 15 compliance review that they had joined a consortium 16 for the period in question in 2006. 17 THE WITNESS: I believe they had already 18 joined one but. 19 THE EXAMINER: For 2006. 20 THE WITNESS: No, not in 2006. 21 THE EXAMINER: Thank you. 22 Q. (By Ms. Parrot) The third violation, 23 would you please tell us about that one. 24 A. Okay. Any for hire carrier must have on ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 39 1 file an MCS90 endorsement to show they have in this 2 case at least $750,000 public liability, so the 3 carrier had the endorsement. They had the proper 4 coverage. It was just not completed accurately. 5 Q. Okay. So we are talking about insurance 6 coverage here? 7 A. Yes. 8 Q. And so what was submitted -- what did you 9 receive from the carrier with respect to this 10 requirement? 11 A. It was actually a copy of the 12 endorsement, but if the legal name or anything is not 13 completed properly, we cannot accept it. It is 14 basically a violation, so we are not stating that 15 they didn't have the vi -- they didn't have the 16 document; it's just it wasn't prepared properly. 17 Q. Okay. Would you please direct your 18 attention to Staff Exhibit 3 that's been previously 19 marked for identification purposes only. Do you have 20 that? 21 A. Uh-huh. 22 Q. Do you recognize this document? 23 A. Yes. 24 Q. And would you please tell us what it is. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 40 1 A. It is a copy of the MCS90 endorsement. 2 Q. And how did you obtain this endorsement, 3 this information? 4 A. This was provided by the carrier. 5 Q. And this was provided to you in response 6 to your request for records? 7 A. Yes. 8 Q. And this was provided to you by the 9 company from their business records; is that correct? 10 A. Right, correct. 11 Q. And would you please specifically 12 identify what the violation was with respect to this 13 endorsement. 14 A. Well, since it was not incorporated, 15 okay, we have to show the individual's legal name 16 which would be Donald D. Davis doing business as 17 Buckeye Transport, so we have to include the middle 18 initial for any individual or part -- you know, sole 19 individual or proprietorship. 20 Q. And that's required by the regulation? 21 A. Yes. 22 Q. Thank you. All right. If you would 23 return now back to Staff Exhibit 2, still looking at 24 the part B violations, would you please tell us about ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 41 1 the fourth violation. 2 A. Every driver is required to complete when 3 they are hired a complete driver qual -- a complete 4 application that contains specific information. In 5 this case it wasn't completed with -- it was missing 6 employment information and driving experience so 7 there is fields on there they didn't have anything at 8 all. They didn't provide any information as 9 required. 10 Q. Okay. So you specifically asked the 11 company for -- for the employment history and driving 12 experience? 13 A. Yes, which they provided an application. 14 It just was not prepared correctly or completely. 15 Q. Okay. So there was some of the 16 information required but specifically the employment 17 history and driving experience was not included. 18 A. Yes. 19 Q. Okay. And you found -- it looks like you 20 checked two drivers' files? 21 A. Uh-huh. 22 Q. And you discovered two violations; is 23 that what that indicates? 24 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 42 1 Q. The fifth violation, please, please tell 2 us about that. 3 A. The regulations require every driver to 4 be examined at least every 24 months, and the medical 5 certificates provided at the time there was gaps in 6 time that they were expired. 7 Q. Okay. And I see there that -- an example 8 section it indicates specifically that the 9 certificate expired on June 25 of 2004 and that a new 10 certificate was not issued until April 13, 2007; is 11 that correct? 12 A. Yes, yes. 13 Q. And so the company was required for this 14 driver to have a certificate during that interim 15 period; is that what's at issue here? 16 A. Yes. 17 Q. And so you asked for a medical 18 certificate for that time frame? 19 A. Yes. And typically if the company, like 20 if they don't have one on file but they say that the 21 driver has, you know, complied with that regulation 22 and, you know, maybe like the physician has it, they 23 are given time to get that information from the 24 medical facility. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 43 1 Q. And in this case -- 2 A. There was none provided. 3 Q. And, again, it looks like you checked 4 medical certificates for two drivers and found two 5 violations? 6 A. Yes, yes. 7 Q. Okay. Let's flip the page and look at 8 the sixth violation. What's required there? 9 A. When a driver is hired, they have 30 days 10 to run a driver's driving record, and they must 11 maintain a copy of that in the file. And there was 12 no MVR -- we call them MVR -- that was dated within 13 30 days of hire for this driver or the other driver. 14 THE EXAMINER: Could you spell out MVR. 15 THE WITNESS: Motor vehicle report, it's 16 the driver's driving record. 17 Q. Okay. Thank you. And so in this case 18 you specifically asked to see that initial driving 19 record? 20 A. Yes. 21 Q. Driving report? 22 A. Yes. 23 Q. And what was submitted to you by the 24 company? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 44 1 A. There was none provided that would show 2 that they were ran within the 30 days of the 3 employment date. 4 Q. Okay. Again, it looks like you checked 5 for two drivers and found two violations; is that 6 correct? 7 A. Yes. 8 Q. Okay. Let's keep going. The seventh 9 violation, what's that about? 10 A. Once the driver has been employed by the 11 carrier a year, okay, they must do what we call an 12 annual review of driving record. So at the time they 13 are required to run another driver's driving record. 14 The driver's required to prepare a driver violation 15 list, okay, and that they would do a notation of the 16 review stating that they had went through this 17 process and the driver was, in fact, qualified. 18 Q. Okay. And so what did you find 19 specifically with respect to this company? 20 A. That they had not done the driver's 21 driving -- they had not completed the annual reviews. 22 Q. Okay. And what -- in the example field 23 there if you see -- well, first, you list your trip. 24 You explained about that. What does the second ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 45 1 sentence there indicate? Driver's certification and 2 violations, do you see that? 3 A. Uh-huh. Okay. At the time apparently 4 this one the violations were completed but there was 5 no copy of the driving record at the time. 6 Q. Okay. So -- 7 A. The driver prepared a violation list 8 certifying that he -- whatever violations he had had 9 in the prior 365 days but there was no copy of the 10 actual report. 11 Q. Okay. Thank you for clarifying that. 12 And then it looks like the eighth violation is also 13 related to the driver's driving record. Would you 14 explain that one to us. 15 A. That would be that they would actually 16 fill out the notation of the review whoever was the 17 person that reviewed all the information to ensure 18 the driver was qualified. 19 Q. Okay. So that's something that -- 20 A. That would be a carrier representative. 21 Q. Okay. So someone at the carrier should 22 have documented that -- 23 A. Yes. 24 Q. -- and kept it. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 46 1 A. In the driver qualification. 2 Q. Okay. And you did not receive any of 3 that information -- 4 A. No. 5 Q. -- in this case. Okay. The ninth and 6 tenth violation it looks like the same regulation is 7 at issue there, just different subsections. Those 8 two, just maybe discuss those together and what -- 9 what's required under that regulation. 10 A. Okay. Both of those are concerning the 11 hours of which a driver cannot drive any more than 11 12 hours without taking 10 consecutive hours off duty. 13 Okay. In this case a driver was found to be 14 operating beyond those hours of service. Also the 15 second one would be that once a driver comes on duty 16 after the 14th hour, he can no longer drive until 17 taking 10 consecutive hours off duty. 18 Q. Okay. And so your example there lists 19 for the ninth violation since the driver drove 6 20 hours after the last 10 consecutive hours off duty. 21 A. Yes. 22 Q. So that means he drove for 6 hours after 23 that 11-hour cutoff. 24 A. Yes, so he would be driving like 17 hours ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 47 1 without 10 consecutive hours off duty, but we would 2 note 6 hours was beyond the 11th. 3 Q. Okay. And then the second one there for 4 the tenth violation the driver drove 3 hours after 5 that 14th hour -- 6 A. Yes. 7 Q. -- cutoff. And how -- it looks for both 8 of these you indicated you checked 56. 9 A. Uh-huh. 10 Q. How did you come up with that number? 11 A. We have a sample size, depends on how 12 many drivers the company employs. We are required to 13 at least check 30 per driver. In this case we didn't 14 have 30 complete logs for Mr. Davis because he had 15 not been driving interstate consistently. So the 16 other driver I checked two months for him because I 17 did have hours of service violations, and typically 18 we will look at another month to see if the driver -- 19 if this was a pattern of violations or just, you 20 know, like happened every once in awhile. 21 Q. Okay. And so for the 11th hour rule it 22 looks like you discovered three violations; is that 23 right? 24 A. Uh-huh. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 48 1 Q. And then the 14th hour rule you 2 discovered four violations in total? 3 A. Yes, yes. 4 Q. Would you please direct your attention to 5 what's been marked as Staff Exhibit 4. 6 A. Okay. 7 Q. All right. Do you recognize that 8 document? 9 A. Yes. 10 Q. Would you please identify it for us. 11 A. This is a copy of the driver's record of 12 duty status that was provided and this would be the 13 example -- it's documentation of the hours of service 14 violations. 15 Q. Okay. And how did you obtain these 16 records? 17 A. The carrier provided them. 18 Q. From their business records? 19 A. Yes. 20 Q. Is there any writing on this record that 21 was placed there by yourself? 22 A. Yes. Actually the date I put on above it 23 to make sure it was a little clearer than what was on 24 the record. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 49 1 Q. Just for legibility purposes? 2 A. Yes. 3 Q. And -- 4 A. And where it says 11 hour V, that's my -- 5 Q. Down there sort of in the lower? 6 A. -- information to show exactly when the 7 driver went into violation and how long the driver 8 was in violation. 9 Q. Okay. 10 THE EXAMINER: So 11 hour V is the 11 driver's 11th hour on duty; is that correct? 12 THE WITNESS: Yes, the driving. 13 THE EXAMINER: And that's true throughout 14 the six or seven pages. 15 THE WITNESS: Yes. 16 Q. So you have indicated there where it 17 occurs -- 18 A. And which violation. 19 Q. Which violation was at issue and how far 20 past the driver was driving. 21 A. Yes. 22 Q. Okay. Thank you. And, again, this was 23 provided to you from the company's driver logs? 24 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 50 1 Q. Okay. Let's go back to Staff Exhibit 2, 2 part B. It looks like we are on violation No. 11 at 3 the bottom of that page there that we were on prior. 4 Do you see that failing to preserve driver's record 5 status for six months? Would you please tell us 6 about that? 7 A. Okay. These were the -- there was -- I 8 checked for 72 records of duty status. They were not 9 able to provide 16 of them. 10 Q. Okay. And how did you come up with that 11 No. 72? 12 A. It was the total number. Typically we 13 will select a specific month and however many days 14 are in that month is how many we check. So it's 15 determined from however many records we actually 16 request. Typically it's month by month. 17 Q. Okay. And you were requesting records 18 for two drivers -- 19 A. Yes. 20 Q. -- again. And so you discovered 16 21 violations, and so the company was not able to 22 provide any -- 23 A. Logs for -- 24 Q. -- logs for those 16. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 51 1 A. Yes. One thing that might be different, 2 if you notice, the counts between 10 and 11, if the 3 carrier doesn't provide a record of duty status, we 4 cannot check for the 11th or the 14th hour rule so 5 that would be the difference of the number of records 6 checked. 7 Q. Okay. 8 THE EXAMINER: So you checked -- just to 9 clarify you checked 72 records. 10 THE WITNESS: Requested 72. 11 THE EXAMINER: Requested 72 records and 12 56 instances they had logbooks. 13 THE WITNESS: Yes. 14 THE EXAMINER: And 16 instances they did 15 not. 16 THE WITNESS: Yes. 17 THE EXAMINER: For each of the 16 that 18 you have documented here could you document the 19 driver was driving on that day? 20 THE WITNESS: Yes. 21 THE EXAMINER: How did you check that? 22 THE WITNESS: I don't remember if it was 23 like from trip reports, but it would be from some 24 kind of evidence the carrier provided the driver ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 52 1 drove on that day. 2 MR. DAVIS: But you don't have any 3 documentation to that. 4 THE EXAMINER: Sir, you will have your 5 opportunity. 6 MR. DAVIS: I'm sorry. 7 THE EXAMINER: It's okay. 8 Q. (By Ms. Parrot) What types of records 9 would you use as an example? 10 A. It could be what the carrier calls trip 11 reports, payroll, shipping documents, toll receipts, 12 any kind of supporting documents. In some cases the 13 records are not provided, and we don't have anything 14 to make copies of if they don't provide us with the 15 records. 16 Q. All right. Would you mind turning the 17 page and it looks like we have got one more violation 18 to discuss, No. 12. Please tell us about that one. 19 A. Okay. Carrier is required to have 20 complete maintenance records for a year indicating 21 all services, inspections, repairs. They have to be 22 identified properly so what I did was I took the 23 carrier profile and vehicles that had been either 24 placed out of service or written up for defects noted ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 53 1 during the inspections I referred to the maintenance 2 records to ensure that they were fixed. 3 Q. So that's Staff Exhibit 1, the profile 4 that we looked at earlier. 5 A. Yes. 6 Q. So from that information you then? Go 7 ahead. I'm sorry. 8 A. Take whatever defects that were noted, if 9 there were any out of service, we are looking to see 10 that the vehicle was not operated. So we are looking 11 for a service call, a wrecker call, or something to 12 indicate the driver did not operate the vehicle out 13 of service. 14 Q. Okay. And so in this case your example 15 indicates that the records that the company submitted 16 did not reflect repairs made that were required. 17 A. Right. I am not saying they did not make 18 them. It's just they did not provide the 19 documentation to show the repairs were made. 20 Q. In the records. You also noted the 21 records were missing service due dates? 22 A. Uh-huh. 23 Q. So that's something also that's required 24 by the regulations -- ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 54 1 A. Yes. 2 Q. -- that information be kept in the 3 records. 4 A. Yes. 5 Q. Okay. Thank you. All right. On that 6 same page there I see that the proposed safety rating 7 is unsatisfactory. What does that mean? 8 A. It's calculated by the computer that if 9 they have specific violations, that they would be in 10 compliance with that section or not. In this case 11 the carrier accumulated enough defects that showed 12 that they were not in compliance. So their records 13 were found to be in unsatisfactory condition. 14 Q. So that rating is calculated 15 automatically, not done by you. 16 A. No. 17 Q. It's calculated automatically based on 18 the violations you noted. 19 A. Entered. 20 Q. So there's 12 violations you document in 21 this report. This determines this rating. 22 A. Yes. 23 Q. And what is the significance of receiving 24 an unsatisfactory? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 55 1 A. Well, currently a carrier cannot operate 2 with an unsatisfactory rating, so they basically have 3 60 days to provide documentation to DOT that by 4 procedure changes that they have, you know, corrected 5 the violations, and they no longer have the same type 6 of violations that were documented during the review. 7 Q. And by DOT you mean the Federal 8 Department of Transportation? 9 A. Yes, yes. 10 Q. And is that information, is that what's 11 summarized here on this page below that rating? 12 A. Yes. The carrier is provided with an 13 eight-page document that shows the property they need 14 to follow to get their rating upgrade. 15 Q. Are you involved in that process in any 16 way? 17 A. No. 18 THE EXAMINER: Are you aware whether this 19 company has been upgraded? 20 THE WITNESS: I believe so. 21 THE EXAMINER: You believe so? 22 THE WITNESS: Yep. 23 THE EXAMINER: Thank. 24 Q. And what's your basis for that belief? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 56 1 A. Well, basically they can't operate if 2 they don't comply. Typically the feds would put an 3 out of service order on the company if they don't get 4 it upgraded to a conditional. 5 Q. Okay. But do you know whether the 6 company is operating? 7 A. Well, actually if you go into the system 8 or if you would check their record, it would show 9 that they have a conditional rating, so it was 10 upgraded -- 11 Q. You know -- 12 A. -- if you go into their information. 13 Q. By checking the system? 14 A. Yes. 15 THE EXAMINER: When did you check the 16 system? 17 THE WITNESS: Well, basically when this 18 came up that the company was -- when I was coming to 19 hearing. 20 THE EXAMINER: Preparing for the hearing. 21 THE WITNESS: Yes. 22 THE EXAMINER: Thank you. 23 MS. PARROT: Thank you, your Honor. 24 Q. (By Ms. Parrot) Rating factors, do you ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 57 1 see that over by the rating itself? 2 A. Uh-huh. 3 Q. What do those mean? 4 A. The review is actually in different 5 factors, so the section numbers like in factor 2 I 6 believe it's operations or I am not sure which factor 7 is what but anyways they had two critical violations 8 in that particular factor. 9 Q. Okay. 10 A. So there's six different parts. 11 Q. And are these -- how are these values 12 determined? Is that done automatically? 13 A. It's all calculated from the 14 documentation of the violation. 15 Q. So based on the violations that you have 16 noted, that then automatically calculates these 17 values here? 18 A. Yes, yes. 19 Q. Okay. Thank you. Let's go ahead and 20 turn the page, part B requirements and/or 21 recommendations, do you see that? 22 A. Uh-huh. 23 Q. Would you please tell us about this 24 section of the report. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 58 1 A. Basically whatever violations the carrier 2 has we make general recommendations of what they need 3 to do to get in compliance in the future. These are 4 mainly standard recommendations that are in our 5 computer. 6 Q. So by standard you mean it's sort of like 7 a boilerplate sort of language -- 8 A. Right. The federal agency already has 9 violations and in some cases if we need to make 10 specific recommendations, we can for that carrier. 11 Q. So do you have the ability to 12 specifically tailor your recommendations to your 13 findings? 14 A. Yes, yes. 15 Q. And did you select each of these 16 requirements and recommendations yourself? 17 A. Yes. 18 Q. Do you have any responsibility for 19 following up with the company to see if they have 20 followed your recommendations? 21 A. No. The only time I would be involved in 22 the review afterwards is like if, say, that there 23 would be any changes that needed to be made to the 24 report, if there was any question about the numbers, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 59 1 the calculation, or whatever or, you know, basically 2 I guess if I would -- if the company would be 3 disputing it, that would be the only time I have been 4 involved with it. 5 Q. So in terms of any corrections maybe that 6 need to be made to the report itself you are involved 7 with that -- 8 A. Yes. 9 Q. -- process. 10 A. Right. 11 Q. Thank you. Okay. So it looks like you 12 have three different pages of recommendations. And 13 then if you flip through those, we come to part C. 14 Do you see that? 15 A. Uh-huh. 16 Q. And what does part C tell us about the 17 company? 18 A. Part C would tell us what the reason for 19 the review was, so it was because of the priority 20 list and that they were in the E category. It shows 21 the parts. 22 THE EXAMINER: Can you tell me what E 23 category means? 24 THE WITNESS: E means they were above the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 60 1 national average for driver out of service. 2 THE EXAMINER: Thank you. 3 Q. And that again is the reason for this 4 review. 5 A. Yes. 6 Q. That's what prompted this review in the 7 first place. 8 A. Yes. Typically calculated from roadside 9 inspections so it would be drivers being placed out 10 of service for violations during roadside 11 inspections. 12 THE EXAMINER: What types of violations 13 would that be? Would those be driver record duty 14 status? 15 THE WITNESS: It would be missing records 16 of duty status, false logs, hours of service, driver 17 not current enough -- 18 THE EXAMINER: But it wouldn't be 19 equipment. 20 THE WITNESS: No, no. That would be in a 21 different category about it was actually the vehicle 22 being placed out of service. 23 THE EXAMINER: Thank you. 24 Q. And I think you were starting to talk ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 61 1 about the parts reviewed certification, do you see 2 that there? 3 A. Yes. 4 Q. What does that represent? 5 A. These are the parts we are required to 6 review during every compliance review so this would 7 show that we checked, you know, drug and alcohol 8 testing, insurance, the general driver 9 qualifications, hours of service maintenance. 10 Q. Okay. So that's reflecting what parts of 11 the federal regulations that you were -- 12 A. Yes. 13 Q. -- checking in this case. 14 A. Right. 15 Q. Okay. The prior reviews, do you see that 16 in the September 29, 2004? 17 A. Uh-huh. 18 Q. What does that indicate? 19 A. That indicates that according to like the 20 carrier profile that the carrier did have a safety 21 audit prior to that review. So if I go in and do a 22 review and they have had like prior reviews, it will 23 be listed on the carrier profile, and then we would 24 write it in that section. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 62 1 Q. Okay. So you obtain this date from the 2 company profile. 3 A. Yes. 4 Q. So it's on Staff Exhibit 1 that we were 5 looking at earlier and that's the safety audit that 6 we discussed. 7 A. Yeah, so according to the records this 8 was the only review the company had had prior to my 9 visit. 10 Q. Okay. Let's see, what else? The remarks 11 portion of the report, would you please just give us 12 an overview of that. 13 A. Generally, we, you know, put the reasons 14 for the review. We will give a description of the 15 carrier's operation, what types of freight that they 16 haul, what type -- you know, how many states that 17 they travel in, how many drivers, how many vehicles 18 are operating, what types of vehicles, if they are in 19 a consortium, and it also states in here the carrier 20 joined in April of 2007, so they joined it basically 21 the month that I was doing the compliance review, but 22 they were not participating in that consortium in 23 2006 according to their records. 24 Q. Okay. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 63 1 A. It shows what CDL drivers driving records 2 were checked. That would be for those two drivers. 3 Then we would basically give any description of what 4 types of violations, how they maintained records, I 5 generally put the carriers at -- you know, if they 6 make copies of documents, I have a notebook that I 7 have some examples of documents that I allow the 8 carriers to make copies of to help them to, you know, 9 have records to complete to be in compliance so 10 that's basically what our part C is for. 11 Q. So these are your private notes kind of 12 documenting your review process with this company? 13 A. Yes. It's standard procedure that we do 14 not give the part C to the carrier. 15 Q. Okay. And these are done though at the 16 time of the compliance review; is that correct? 17 A. Basically -- well, we might do them after 18 the review is done, but in order for the review to be 19 complete these are completed. 20 Q. Okay. So you have to have this portion 21 of the report in place to wrap up the report itself. 22 A. Yes, in order for it -- yes. 23 Q. Okay. To be completed. Have you had the 24 chance to review these remarks prior to your ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 64 1 testimony today? 2 A. Yes. 3 Q. And do you have any changes or additions, 4 anything that you feel is important to note at this 5 point? 6 A. Not that I recall. 7 Q. Okay. During the compliance review did 8 you interview anyone working for the company? 9 A. Mainly I just, you know, dealt with 10 Jewell, and then I believe that in one case that I 11 talked to Mr. Davis on a phone conversation 12 concerning one of the drivers with one of the drug 13 tests that they had had. 14 Q. Okay. Was that your only interaction 15 with Mr. Davis then? 16 A. I believe so except for making the phone 17 call to schedule the appointment. 18 Q. Okay. So you talked to him a few times 19 on the phone. 20 A. Yes. 21 Q. And then during the review itself it was 22 Ms. Haubeil, I'm sorry, I am butchering her name, 23 Ms. Jewell -- 24 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 65 1 Q. -- that was helping you with the records? 2 A. Yes. 3 Q. Okay. And would you just tell us what do 4 you do during that interview process then? What do 5 you talk about with the company at that point? 6 A. You mean like when we do a closing out? 7 Q. Uh-huh. 8 A. Basically, you know, I have the company 9 check to make sure all the information that I have 10 documented for them is correct. We review the types 11 of violations that we had and make recommendations 12 on, you know, what they do need to do to correct 13 them. 14 Q. Okay. So you basically kind of go 15 through, talk about what you found. 16 A. Yes. 17 Q. Make recommendations. 18 A. If they have any questions or if they 19 dispute any violations, if they, you know, can 20 provide documentation that one of the violations were 21 inaccurate, I will go back and change it. 22 Q. Okay. So that is a chance for them to 23 dispute anything -- 24 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 66 1 Q. -- in the report itself. 2 A. Yes. 3 Q. Do you remember, did the company ask you 4 any questions? Did you need to clarify anything for 5 the company? 6 A. I don't really recall. 7 Q. All right. Do you remember if the 8 company discussed any concerns during that interview 9 with you? 10 A. If I remember correctly, they did, you 11 know, at the beginning state that they had looked at 12 going out of business and that that was still a 13 possibility. 14 Q. Okay. And what was Ms. Haubeil's -- 15 Haubeil's role with the company? 16 A. My understanding is she was mainly their 17 accountant and had not really been involved in this 18 kind of recordkeeping prior to this review. 19 Q. Do you know who at the company was 20 responsible for recordkeeping? 21 A. My understanding is it was Mr. Davis. 22 Q. But, again, he was not present during the 23 review itself? 24 A. I don't recall actually seeing him during ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 67 1 the review. 2 Q. Okay. Is there anything else regarding 3 the compliance review or the report that you have not 4 yet shared with us but you feel is important to 5 resolving this case? 6 A. Not that I know. 7 MS. PARROT: No further questions, your 8 Honor. 9 THE EXAMINER: Thank you. 10 Mr. Davis, any questions for the witness? 11 - - - 12 CROSS-EXAMINATION 13 By Mr. Davis: 14 Q. The initial starting of this process, if 15 I am not mistaken, was in 2005 when all the -- when 16 the supposed out of service violations occurred, the 17 out of service violations occurred that brought you 18 in to do the compliance review? 19 A. Excuse me? 20 Q. What initiated the compliance review? 21 A. The company was on a priority list. 22 Q. Okay. And this priority list was 23 generated in what year? 24 A. I believe the system looks at 30 months. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 68 1 Q. It could be -- it could have even been 2 2004. In other words, it took you two to three years 3 to come into my business after the initial supposed 4 violations. 5 A. I can't ex -- I just know when it's 6 assigned to me, then I do the reviews. 7 Q. Well, I am sure on your paperwork there 8 somewhere that there is some kind of an indication 9 that tells you when the violations that were used to 10 come into my company were made. What year? 11 A. That's a federal program. 12 Q. Well, can't you look on the paper and 13 tell me that these happened in 2005 and you come 14 back -- you come in two years and -- 15 A. This would not tell me everything that 16 was done in 30 months. 17 Q. Well, it will tell you though what year 18 it happened. 19 A. No. This -- the only information I have 20 is at the time the carrier was on the priority list 21 because during that 30-month history it showed the 22 company was above the national average for driver out 23 of service. 24 Q. If I am not mistaken, when I talked to ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 69 1 you on the telephone -- 2 THE EXAMINER: You are going to have to 3 make sure you don't make statements now but ask your 4 question in the form of a question. 5 Q. Okay. How do you -- our conversation, if 6 I am not mistaken, explain that -- explained by you 7 that this was sort of a long -- long time between the 8 violations and the actual coming into the business 9 and doing this compliance review. And I would like 10 to know what initiated the compliance review, what 11 year? Either 2004 or 2005. It will show you here on 12 these papers somewhere, or it was shown to me at one 13 time, but I don't have it here. That's what I would 14 like to know. I would like to know what really 15 initiated -- I know what initiated it is the federal 16 review of my company, that I had so many shutdowns in 17 so -- in one year. Well, I would like to know what 18 year the shutdowns were in. 19 A. I really don't have any control over 20 that. That's handled through FMCA. 21 THE EXAMINER: I don't think that's his 22 question. What was the time period of inspections 23 that led to him being -- having a SafeStat score that 24 caused you to do the inspection. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 70 1 THE WITNESS: Okay. 2 A. Typically we look at 365 days and that's 3 generally on the profiles. That's what we are 4 working with. In some cases it will be run for two 5 years, so it was ran for two years. It would show 6 what the company's history was for 24 months, but it 7 would not cover the rest of the time because it looks 8 at 30 months' worth of history. 9 Q. I was under the impression it was in 10 2005, and in 2006, you come in. I thought that was a 11 little long, like if I am not mistaken, in the 12 Municipal Court on a fourth degree misdemeanor which 13 this is really less than a fourth degree misdemeanor 14 as far as -- 15 THE EXAMINER: I think you are starting 16 to make statements again. Let's try to -- at this 17 point let's try to just ask factual questions from 18 the witness. 19 MR. DAVIS: Okay. Yes, sir. 20 Q. You rely on other agencies to support -- 21 to give you your information, you made a statement 22 that you relied on other agencies to supply your 23 information to the FMCA or whatever? 24 A. Yes. I mean, I did a federal compliance ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 71 1 review. 2 Q. Right. 3 A. Okay. So we do use their program, their 4 procedures, and their policies. 5 Q. And you really don't know if they are up 6 to snuff with Ohio law or the law of the Federal 7 Government. 8 A. I believe they are. 9 Q. Well, but you really -- personally do you 10 know that this is what -- 11 A. My understanding they have adopted all 12 the rules and regulations. 13 Q. But do you actually know that they are 14 abreast of everything? 15 A. No. 16 Q. Okay. When you conducted this compliance 17 review or this audit, what address did you go to, 18 ma'am? 19 A. It was on Lunbeck Road. 20 Q. What's the address, ma'am, that you went 21 to? You have got a copy. 22 A. 1488 Lunbeck Road. 23 Q. There's another address on here too which 24 is the actual address you were at, was 2213 Lunbeck ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 72 1 Road. That was the address you were at. Did you 2 ever inquire about any information or any paperwork 3 or anything being at 1488 Lunbeck Road? 4 A. When we do a review, we rely on the 5 carrier to provide us with where their principal 6 place of business is. This is the information that 7 was provided. 8 Q. Did you inquire about any information or 9 any other paperwork being at 1488 Lunbeck Road? 10 A. Not that I recall. 11 Q. Okay. You say that all your -- all 12 people that you -- in southern Ohio that you deal 13 with are given the same assistance or the same 14 recommendation -- or the same help that you give all 15 trucking companies? You don't discriminate or you 16 don't show partiality between trucking companies? 17 A. No. 18 Q. Okay. Burnett, isn't there a Burnett 19 Trucking Company within 5 miles of me? 20 A. Yes. 21 THE EXAMINER: What's the relevance of 22 this question? 23 MR. DAVIS: It's her brother's trucking 24 company, your Honor. I say that this witness is ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 73 1 partial which would be -- 2 THE EXAMINER: You are going to have to 3 find a more relevant line of questioning against the 4 violations as to your company. 5 MR. DAVIS: Yes, your Honor. I 6 understand that. 7 Q. Do you feel, ma'am, all people that drive 8 commercial vehicles should be treated the same way? 9 A. Yes. 10 Q. That people that drive a taxicab, are 11 they under your scrutiny here? 12 A. No. We only deal with motor carriers, 13 drivers that meet the definition in commercial 14 vehicles. 15 Q. And you stated actually that in your 16 report that we had no financial responsibility 17 insurance, right? 18 A. No. 19 Q. You stated that -- let's see here, I 20 thought that you made a remark in here that we had no 21 insurance on our vehicles. 22 A. I believe I addressed that violation 23 stating that you had the proper insurance coverage. 24 The document, it just was not prepared completely. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 74 1 Q. On this -- do you know anything about a 2 uniform recommendation maximum fine schedule? Have 3 you ever seen one of these before? 4 A. I'm not sure what you have here. 5 Q. Put out by the PUCO or used to be. It 6 says hazardous material and driver out of service 7 criteria and there is a number over here for 8 different violations. Have you ever seen that, 9 ma'am? 10 MS. PARROT: This witness is not 11 testifying as to the fines. 12 THE EXAMINER: Are you making an 13 objection, Ms. Parrot? 14 MS. PARROT: I am just responding to his 15 question. 16 THE EXAMINER: She should respond to the 17 question. You should make objections. Now, are you 18 making an objection? 19 MS. PARROT: Objection, relevance, I 20 guess. 21 THE EXAMINER: Grounds? 22 MS. PARROT: This witness is not 23 testifying as to the fines or fine schedule. We will 24 have a witness testifying to that. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 75 1 THE EXAMINER: Sustained. 2 MR. DAVIS: You are going to bring 3 somebody else in today? 4 MS. PARROT: Yes, today. 5 MR. DAVIS: Good. Mr. Forbes? 6 MS. PARROT: Mr. Canty. 7 Q. I see here -- I don't know on what it is 8 here, but you said -- you put down here our gross 9 revenue for 2006 $362,702 on the second one here. 10 A. Yes. 11 Q. Now, is this just the trucking or is this 12 everything? Does this assessment have anything to do 13 with our gross revenue? Do you have anything -- do 14 you have any idea of that? 15 A. I have no part of that. 16 Q. In other words, the whole -- what you are 17 saying the whole ball of wax you are just involved in 18 a certain portion of it. 19 A. Yes. I actually do the review, look at 20 the documents, and if I find violations, note the 21 violations. 22 Q. When you were doing this review, did you 23 make a statement that the actual logs were not to 24 be -- not to be actually relied upon, logbooks as a ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 76 1 general -- generally are not to be relied upon? You 2 made that statement, right? 3 A. I don't recall. I don't understand the 4 question. 5 Q. Logbooks made by drivers, there was a 6 statement made when you were in the office talking 7 with Ms. Haubeil that the logbooks generally are not 8 to be relied upon, that the officers on the road 9 don't rely upon them. 10 A. I don't remember making that statement. 11 Q. At the time you conducted this audit how 12 many vehicles did we have running? 13 A. You provided the number with one tractor 14 and two trailers. 15 Q. One tractor and two trailers. You know, 16 you made a statement here a while ago that -- about 17 my equipment. I believe the judge actually asked a 18 question about the shutdowns on the side of the road, 19 shutdowns when you get shut down on the side of the 20 road because of one thing or another, and you said 21 that there was some kind of a number you could look 22 on there and tell whether it was an equipment or it 23 was something else. 24 A. Actually they are coded as D for driver, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 77 1 1 for tractor, and 2 for trailer. That would be on 2 the inspection report that the inspector provided. 3 Q. Okay. Now, you don't know on any of 4 these shutdowns whether these people were cited or 5 not cited or had to pay a fine or didn't have to pay 6 a fine. Do you know that? 7 A. No. 8 Q. Okay. In other words, they might have 9 already had to pay a fine or there might have been 10 already a fine paid for this violation. 11 A. I don't know. 12 Q. In other words, probably 90 percent of 13 the time there is a fine paid and here we are again 14 sort of double jeopardy. Okay. A lot of these were 15 supposed logbook violations. What kind of control do 16 you think a truck owner or an owner of a company -- 17 how much control do we have of telling my drivers -- 18 they know basically how to do the logs and the 19 laws -- the logs and but how much control do we as 20 the owner of the truck have over these people? 21 A. The regulation requires that the motor 22 carrier ensure drivers do not operate beyond hours of 23 service. 24 Q. How are we going to control this when we ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 78 1 are 500 miles away? Can you tell me that? 2 A. Companies have policies in place. 3 Q. Well, policies for what? Policies for 4 push a button and shut the truck down, not letting 5 them buy fuel? What should be the policy if you are 6 an hour away from home and you are 11 hours in? Are 7 you going to come home, or are you going to sit out 8 on the road for 10 hours? 9 THE EXAMINER: Mr. Davis, I don't know 10 the relevance of your question to her testimony. 11 Your questions might be relevant as to the fines that 12 are being assessed, but she did an inspection. She 13 found some violations. She's not rendering any 14 opinion on whether or not a fine should be assessed. 15 I think that would be Mr. Canty, as I understand it, 16 that's -- these questions should be directed to, if 17 anybody. 18 Q. Right. Let's see here. All these out of 19 service violations here, how many -- how many out of 20 service violations did Donald Davis have in this -- 21 when you checked out there? Can you look on them and 22 tell? 23 A. How many out -- 24 THE EXAMINER: Mr. Davis -- ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 79 1 Q. How many -- as a driver, how many out of 2 service violations did Donald Davis have as a driver? 3 THE EXAMINER: I am not sure if you are 4 asking the ones that she found in her compliance 5 review -- 6 MR. DAVIS: I am asking for right here, 7 these. 8 THE EXAMINER: The ones on the federal 9 report. 10 MR. DAVIS: Right. 11 THE EXAMINER: Thank you. 12 Ms. Burnett, do you know? 13 THE WITNESS: Pardon me? 14 THE EXAMINER: Do you know the answer to 15 that question? 16 THE WITNESS: If I am looking on this, it 17 doesn't show any, but it's my understanding he 18 doesn't drive much. 19 Q. Here you are assessing me -- the PUCO is 20 assessing me over $4,000 for basically something that 21 I didn't do and possibly -- 22 MS. PARROT: Objection, your Honor. 23 THE EXAMINER: Sustained. We have 24 already discussed this issue. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 80 1 Q. -- fines levied. I have got a question 2 about the logbook. There was a change here a few 3 years ago concerning the laws. It used to be 10 and 4 8. 5 A. Uh-huh. 6 Q. When did this change? 7 A. The first change occurred in 2003 and 8 then there was a second change in 2005. 9 Q. There's just been another change then in 10 2005. 2005, three years ago. 11 A. Yes. 12 Q. And what are the rules now? 11 and 14 or 13 and 10 or is it -- what are the rules now? 14 A. A driver cannot drive any more than 11 15 hours without 10 consecutive hours off duty. 16 Q. Okay. Now, isn't there some kind of a 17 rule in there somewhere that if you are off, you can 18 exclude time if there is more than two hours, you are 19 off for more than two hours, that time can be 20 excluded or something like that? 21 A. Not to my knowledge. 22 Q. In other words, if you go in and inspect 23 your vehicle at 7 o'clock and you don't leave out 24 until -- you are getting loaded and you don't leave ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 81 1 out until 11 o'clock or 12 o'clock and you are laying 2 in a bunk all that time, that you have lost five 3 hours driving time is what you are saying? 4 A. According to the regulations. 5 Q. And you don't have anything to do with 6 the fine schedule at all? 7 A. No. 8 Q. Have you ever seen this PUCO For Hire 9 Safety Rules Handbook? 10 A. Yes. 11 Q. Is it like this one? 12 A. No. 13 Q. What's the difference? 14 A. That's the Federal Motor Carrier Safety 15 Regulation. 16 Q. What's the difference between this one 17 and this one? 18 A. Basically the other one is a handout that 19 the PUCO prints up for guidelines in intrastate. 20 Q. This one sheet? 21 A. Yes. 22 Q. Within the state. 23 A. Yes. 24 Q. Okay. And you have no idea if fines were ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 82 1 levied on these drivers that were out of service. 2 A. No. 3 Q. And you were in how long down here in our 4 office on two drivers? How long were you there? 5 A. I don't actually recall. 6 Q. On two drivers you were there for two 7 weeks, 80 hours. 8 A. I don't believe so because Jewell did not 9 work every day. 10 Q. I'm sorry, three days each week, 11 approximately three days. I thought you were there 12 for 40 hours, 80 hours. 13 MS. HAUBEIL: Three days and it was two 14 weeks. 15 Q. And you went to -- you were at 2213 16 Lunbeck Road; is that correct? 17 A. I am not sure what the physical address 18 was. I just went to the address that was given to me 19 where you were operating. 20 Q. And you never inquired about the -- any 21 paperwork that might have been at any other address? 22 A. I requested documents no matter -- I 23 mean, you have 48 hours to produce it even if you 24 have it at a different location. We give you 48 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 83 1 hours to produce it. 2 Q. I have got a letter here actually that 3 was send to our address and this is a certified 4 letter. 5 THE EXAMINER: Okay. We are going -- one 6 second here. We are going to go ahead and mark this 7 letter. 8 MR. DAVIS: Yes, sir. 9 THE EXAMINER: You want the envelope in 10 or the letter? 11 MR. DAVIS: Just the envelope. 12 THE EXAMINER: Just the envelope, okay. 13 We are going to go ahead and mark this envelope. 14 Hand this to the court reporter. We are going to 15 mark this envelope as Respondent's Exhibit 1 on my 16 motion. 17 (EXHIBIT MARKED FOR IDENTIFICATION.) 18 MS. PARROT: Thank you very much. 19 THE EXAMINER: Okay. Ms. Burnett, have 20 you ever seen this envelope before? 21 THE WITNESS: No. 22 THE EXAMINER: Thank you. 23 Q. But your actual presence was at actually 24 2213 Lunbeck Road and there was no inquiry made about ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 84 1 any records being at any other address; is that 2 right? 3 A. I requested the company to provide the 4 documents. 5 Q. No, that's not what I asked you. I -- 6 the address that you were at was 2213 Lunbeck Road 7 and the other address that all our paperwork goes 8 through to even stuff that you send me now is 1488 9 Lunbeck Road, right? 10 A. All I know is I went to the address that 11 was on the information provided. 12 Q. That's not what I asked you, ma'am. I 13 asked you -- 14 THE EXAMINER: I think your question has 15 been asked and answered. You need to move onto a new 16 topic. 17 MR. DAVIS: That's it. I have no more. 18 THE EXAMINER: Thank you. Redirect? 19 MS. PARROT: Just briefly. 20 - - - 21 REDIRECT EXAMINATION 22 By Ms. Parrot: 23 Q. Ms. Burnett, you mentioned you scheduled 24 an appointment with the company by phone to come and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 85 1 to -- basically arranging for the compliance review 2 you call them by phone; is that correct? 3 A. Yes. Typically we can stop at their 4 location, make the record request or by phone call. 5 Q. Okay. So in this case it was by phone. 6 And during that phone call is that when you arranged 7 to meet with the company for the compliance review? 8 A. Yes. I believe that's when he told me 9 that I would be meeting with Jewell instead of him, 10 basically she would be the one handling the 11 documents. 12 THE EXAMINER: Who did you speak with 13 when you say he? 14 THE WITNESS: Oh, Mr. Davis, sorry. 15 THE EXAMINER: Thank you. 16 Q. And when you spoke with the company to 17 arrange your visit, the company told you where to 18 come to conduct the compliance review; is that 19 correct? 20 A. Yes. 21 Q. And do you remember, was it the company's 22 like a business address, their place of operations? 23 Do you recall where you were? 24 A. I believe it's their operations. That's ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 86 1 where they had the vehicles parked too. 2 Q. So the vehicles were there. The records, 3 were they also there? 4 A. Yes. 5 Q. And you asked the company for the records 6 that were required to be reviewed by you. 7 A. Yes. 8 Q. And you gave them time to submit those 9 records as needed. 10 A. Yes. And also, I mean, I was in there a 11 couple of weeks off and on, but I also gave them more 12 time to provide the documentation. 13 Q. And it's the company's responsibility to 14 provide those records to you, to bring them to you? 15 A. Yes. 16 Q. Regarding the logbooks do you recall any 17 statement you may have made to anyone at the company 18 regarding logbooks in particular? 19 A. I don't recall. I mean, I made 20 statements before that, you know, logs a lot of time 21 are not accurate. That's why they have to use the 22 supporting documents to make sure that the 23 information that they provide is accurate. 24 Q. And the only thing you can rely on are ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 87 1 the driver's logs themselves. 2 A. And their supporting documents. 3 Q. And the supporting documentation and 4 that's how you determine whether there is an out 5 of -- excuse me, hours of service violation; is that 6 correct? 7 A. Yes. 8 Q. Based on the information that's provided 9 to you by the company. 10 A. Yes. 11 Q. And what is the carrier's role in 12 enforcing hours of service regulations? 13 A. They are responsible to ensure that their 14 drivers do not operate beyond hours of service. 15 MS. PARROT: Nothing further. 16 THE EXAMINER: Mr. Davis, you can ask 17 another round of questions. You need to stay 18 narrowly within the same topics that Ms. Parrot asked 19 questions on. 20 MS. HAUBEIL: Your Honor, could I ask a 21 question, please? 22 THE EXAMINER: No. Only one spokesperson 23 per company. 24 - - - ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 88 1 2 RECROSS-EXAMINATION 3 By Mr. Davis: 4 Q. You made a statement that you requested a 5 list of what you needed. Did you do that orally, or 6 did you do that written? 7 A. I believe there was a written document. 8 Q. Well, we don't have a copy so. 9 THE EXAMINER: Do you have a copy of the 10 document you gave to them? 11 THE WITNESS: No. 12 Q. You made a statement a minute ago the 13 driver's logs weren't to be relied upon; is that 14 correct? Because you said you needed supporting 15 documents to -- 16 MS. PARROT: Objection, mischaracterizes 17 her testimony, I believe. 18 MR. DAVIS: That's the statement she 19 made, your Honor. 20 THE EXAMINER: Sustained. 21 Q. When -- I forget the lady's name here. 22 THE EXAMINER: Ms. Parrot. 23 Q. The driver's logs you made -- what was 24 your statement that you made to the prosecutor here? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 89 1 A. That not all driver's logs are accurate. 2 That's why supporting documents are needed to make 3 sure that what they are saying on their logs is 4 accurate. 5 THE EXAMINER: To verify compliance with 6 the rules you are saying? 7 THE WITNESS: Yes, and accuracy. 8 Q. Were any of the driver's logs that you 9 looked at over the 10-hour rule or 11-hour rule, or 10 it was just the fact that they didn't buy fuel when 11 they said they did? 12 A. The hours of service violations were 13 there whether they logged fuel stops or not. 14 Q. I looked at the logs. The logs were 15 timed -- were within -- I thought within the realm of 16 the -- 17 THE EXAMINER: Mr. Davis, if you have a 18 specific question with respect to a specific log, I 19 believe that Staff Exhibit 4 has all the logs they 20 relied upon, so if you have any questions regarding 21 any of these days -- 22 MR. DAVIS: No, not at this time, your 23 Honor, no, no. I don't -- I didn't really have 24 sufficient time to go over the logs again. I ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 90 1 periodically look at them. I didn't really see any 2 violations. 3 THE EXAMINER: You need to make that 4 statement when it's your turn to be on the stand. 5 MR. DAVIS: I am not going to get up on 6 the stand, your Honor. That's it. I have no more 7 questions. 8 THE EXAMINER: Thank you. Okay. 9 MS. PARROT: Can we move our exhibits? 10 THE EXAMINER: Good answer. 11 MS. PARROT: While we are on the record 12 Staff moves for admission into evidence of Staff 13 Exhibits 1 through 4, your Honor. 14 THE EXAMINER: Mr. Davis, any objection? 15 MR. DAVIS: I didn't hear you, your 16 Honor. 17 THE EXAMINER: Do you have any objection 18 the admission of Staff Exhibits 1 through 4? 19 MR. DAVIS: Do I have to have a reason to 20 object to admission? 21 THE EXAMINER: If you would want them to 22 stop being admitted, you best have a reason. You can 23 note a general objection. 24 MR. DAVIS: I object because of the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 91 1 address at which the compliance review was held. I 2 don't feel that they had all the paperwork. 3 THE EXAMINER: Okay. That's all the 4 further you have to go. That's not a valid grounds 5 for objection. The objection is overruled and those 6 documents will be admitted at this time. 7 (EXHIBITS ADMITTED INTO EVIDENCE.) 8 THE EXAMINER: We will now take a 9 7-minute break. 10 (Recess taken.) 11 THE EXAMINER: Let's go back on the 12 record. Staff's next witness. 13 MS. PARROT: Staff calls to the stand 14 Mr. John Canty. 15 (Witness sworn.) 16 THE EXAMINER: Please be seated and state 17 your name and business address for the record. 18 THE WITNESS: John Canty, C-A-N-T-Y, 19 Public Utilities Commission of Ohio, 180 East Broad 20 Street, Columbus, Ohio 43215. 21 THE EXAMINER: Please proceed, 22 Ms. Parrot. 23 - - - 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 92 1 2 JOHN CANTY 3 being first duly sworn, as prescribed by law, was 4 examined and testified as follows: 5 DIRECT EXAMINATION 6 By Ms. Parrot: 7 Q. Good morning, Mr. Canty. You mentioned 8 the Public Utilities Commission of Ohio is your 9 employer? 10 A. Yes. 11 Q. And in what capacity are you employed 12 with the Commission? 13 A. I am the assistant chief of the 14 compliance division. 15 Q. And what are your duties and 16 responsibilities as assistant chief? 17 A. I supervise the employees who assess the 18 penalties that are discovered during roadside 19 inspections and compliance reviews. Our section is 20 responsible for mailing out the notices of 21 forfeiture, conducting conferences with those who 22 request a conference because of those violations. 23 Q. How long have you worked for the Public 24 Utilities Commission? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 93 1 A. 19 years. 2 Q. And how long have you been employed in 3 your current position with the Commission? 4 A. Approximately 15. 5 Q. Okay. Do you hold any certifications or 6 have you received any special training? 7 A. I have attended many hazmat classes, 8 North American Standard, how to inspect the vehicle 9 type class, radioactive, many different classes over 10 the years. 11 Q. Okay. In the course of your duties have 12 you had the opportunity to review the file for this 13 case? 14 A. Yes. 15 Q. Would you please direct your attention to 16 what's been marked as Staff Exhibit 2 if you have 17 that before you. 18 A. Yes. 19 Q. Okay. Do you recognize this document? 20 A. Yes, I do. 21 Q. Would you please identify it for us. 22 A. Yes. This is the compliance review that 23 was conducted at Donald D. Davis dba Buckeye 24 Trucking. We assigned it an internal number of ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 94 1 CR07C294 which is written in the upper right-hand 2 corner. 3 Q. Okay. So that writing that appears there 4 was written by someone on your staff? 5 A. Yes. 6 Q. Okay. And is this document part of the 7 file that you reviewed in preparation for your 8 testimony today? 9 A. Yes. 10 Q. Is this document regularly maintained by 11 the Commission in the ordinary course of its 12 business? 13 A. Yes, it is. 14 Q. And how does this document reach the 15 Commission? 16 A. The investigator conducts a compliance 17 review using their laptop computer software provided 18 by USDOT. I believe it's called Capri is the name of 19 the software. They print out a copy of the 20 compliance review. They then upload that information 21 electronically to our office where we print out a 22 copy, paper copy, of the compliance review. 23 Q. Okay. And what happens after it's 24 received by the Commission? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 95 1 A. We assign it an internal number as I 2 said. The CR07C294 is a sequential number as they 3 come into the office. It is then assigned to a 4 compliance officer who then reviews the compliance 5 review and all of the information that came along 6 with it that was provided by the investigator and if 7 there are violations that merit being assessed, those 8 violations are assessed monetary forfeiture, and we 9 send a notice to the responsible company. 10 Q. Okay. Thank you. Would you please 11 describe generally for us how civil forfeitures are 12 assessed for violations discovered in the course of a 13 compliance review. 14 A. Yes. We have an internal document 15 compliance review assessment memo, I guess I could 16 call it, that reviews the factors that we consider, 17 the base dollar amount, how you apply the math to 18 come up to a total amount for each violation. 19 Q. Okay. I've given you and I believe you 20 have before you what's been marked for purposes of 21 identification as Staff Exhibit 5. Do you have that 22 before you? 23 A. Yes. 24 Q. Do you recognize this document? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 96 1 A. Yes. This is the internal memo that I 2 was just referring to. 3 Q. Okay. Is this document regularly 4 maintained by the Commission in the ordinary course 5 of its business? 6 A. Yes, it is. 7 Q. Was this document in effect at the time 8 that the civil forfeiture was assessed in this case? 9 A. Yes. 10 Q. And would you please just briefly walk us 11 through this and tell us what it shows us. 12 A. No. I, nature & gravity. Actually there 13 are -- where are my glasses -- seven Roman numerals. 14 I can go through them one at a time if you would 15 like. No. I is nature & gravity, baseline penalty. 16 It states that you would start with the baseline of 17 $400 for a critical violation or $1,000 for an acute 18 violation. Critical and acute are defined by Federal 19 Motor -- Federal Motor Carrier Safety Administration 20 in the -- I believe it's Appendix B to Section 385. 21 In any case there is an appendix to the federal rules 22 that lists all the critical and acute violations. 23 Q. So those designations come directly from 24 the federal regulations. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 97 1 A. Yes. And if it is not critical or acute, 2 we don't assess the violation. 3 Q. And how are those base amounts of 400 4 for -- excuse me, for critical violations and $1,000 5 for the acute violations, how was that determined? 6 A. That was an internal decision made years 7 ago to come up with a dollar amount that would be a 8 fair amount for violations discovered during 9 compliance reviews. 10 Q. Okay. If you would please continue. I 11 didn't mean to interrupt your review. 12 A. Then Roman Numeral II, extent, 13 multiplier, this exhibit is actually -- I don't want 14 to get ahead of you but this Staff Exhibit 5 is used 15 in conjunction with Staff Exhibit 6 which is our 16 matrix -- 17 Q. Okay. 18 A. -- where you take the instructions so to 19 speak from Staff Exhibit 5 and apply them to Staff 20 Exhibit 6, the matrix on where to put in the numbers 21 and how to multiply the numbers, things of that 22 nature. 23 Q. Well, it may be easier. Please turn to 24 Staff Exhibit 6 which you had before you and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 98 1 obviously you recognize that document. Would you 2 please identify it for us. I think you called it a 3 matrix? 4 A. Yes. We call this our compliance review 5 assessment matrix. This is essentially the printout 6 of an Excel spreadsheet which does the computation 7 for you, the math computation, when the compliance 8 officer plugs in the values. 9 Q. Okay. 10 A. It then does the math and comes up with 11 the total amount for each violation which we will 12 send a notice to the responsible party for. 13 Would you like me to walk through the 14 violations? 15 Q. If you could just briefly -- again just 16 real briefly what Staff Exhibit 5 shows us. I think 17 you were talking about the Roman No. II there, the 18 extent and multiplier. What is that exactly? 19 A. Yes. In Roman Numeral II, extent, that 20 would -- that corresponds to the second heading on 21 Staff Exhibit 6 where it says extent. And that is -- 22 you would put a value of a 1 in there because it is 23 not -- it is considered an isolated violation. It is 24 not a recurring violation, so the value of 1 would be ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 99 1 put in there. 2 Q. So basically you are looking to see. 3 THE EXAMINER: I don't think I understood 4 that correctly. You are saying it's an isolated 5 critical violation you put a 0 in there; is that 6 correct? 7 THE WITNESS: Isolated acute. 8 THE EXAMINER: Isolated acute. 9 THE WITNESS: Isolated acute, it's a 10 value of 1. Yes, I'm sorry. Maybe I misspoke. 11 THE EXAMINER: Thank you. When would you 12 put a 0? 13 THE WITNESS: If it was just isolated, 14 less than 10 percent, or if it was not a critical or 15 an acute violation, if it's not on the critical/acute 16 list. 17 Q. Okay. And then the culpability, what is 18 that about? 19 A. That is a check whether the violation was 20 conducted under the knowingly standard as opposed to 21 willfully. That's a -- I am not sure if that comes 22 from case law but there is some -- there are some 23 regulations, federal regulations, if not the case 24 law, to back up the knowingly versus willful conduct. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 100 1 In this case it was just knowingly, was not a 2 willful, so the value put in there for culpability 3 would be 1. Obviously 1 multiplied times the dollar 4 amount does not increase it or decrease the dollar 5 amount. You would only multiply times 2 if it was a 6 willful violation. 7 Q. Okay. And then what do you check in 8 terms of history of violations? 9 A. We look for the past three years' 10 previous compliance reviews have been conducted by us 11 or by federal agency at the same company. 12 Q. Okay. And then the second page of 13 this -- 14 THE EXAMINER: When you consider history, 15 do you consider the safety audits like audits 16 Ms. Burnett talked about? 17 THE WITNESS: No. 18 THE EXAMINER: Only full compliance 19 review. 20 THE WITNESS: Only full compliance 21 review. 22 THE EXAMINER: The safety is not held 23 against the company at any later point. 24 THE WITNESS: A new entrant's audit? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 101 1 THE EXAMINER: Yes. 2 THE WITNESS: No. 3 Q. (By Ms. Parrot) So the point of that 4 safety audit is purely educational; is that correct? 5 A. Correct. 6 Q. The second page of Staff Exhibit 5, 7 there's a formula at this top for repeated 8 violations; is that correct? 9 A. Yes, there is. The formula for assessing 10 civil forfeitures for repeat violations, the total 11 penalty is equal to the adjusted penalty where you 12 are at this point on the matrix times -- essentially 13 you are increasing it by 25 percent. 14 Q. Okay. And then I see there that you have 15 taken into consideration the company's ability to 16 pay? 17 A. Ability to pay is not something that can 18 be taken into consideration other than looking at 19 their gross revenue -- 20 Q. Okay. 21 A. -- which is just what they report to us 22 is their gross revenue. We don't check with the IRS 23 or, you know, any other agency on that, whatever they 24 report as their gross revenue, and then we put a 1 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 102 1 percent cap on that per violation. 2 Q. Okay. 3 A. So in this case the cap would be 4 approximately $3,600 per violation. 5 Q. That's per each violation? 6 A. Per each violation, correct. 7 Q. Roman numeral VII, 396 violations, what 8 does that refer to? 9 A. That refers to the recordkeeping 10 violations in Section 396 for motor vehicle repairs. 11 The -- because of the nature of that violation 12 repeated violations of Section 396 are assessed at 13 the initial $400 per violation and then an additional 14 violation beyond that on $25 for a repeat violation 15 of 396, whereas, all other violation sections would 16 be 400 initial, that is the same, but all other 17 violations would be -- for subsequent violations 18 would be 100 per violation so this is 75 percent less 19 than all other violations. 20 Q. Okay. Thank you for that overview and I 21 think now we have the background info we need to 22 understand Staff Exhibit 6. Do you have that before 23 you still? 24 A. Yes, I do. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 103 1 Q. Okay. Was this document prepared by you 2 or by someone under your control and supervision? 3 A. Not by myself but by one of our 4 compliance officers, Tom Forbes. 5 Q. Okay. I see there at the top of Staff 6 Exhibit 6 there is the CR number that you mentioned 7 previously. Is that the same number that's on Staff 8 Exhibit 2? 9 A. Yes, it is. 10 Q. Okay. And this assessment was done on 11 June 6 of 2007; is that correct? 12 A. Correct. 13 Q. Okay. Is this document regularly 14 maintained by the Commission in the ordinary course 15 of its business? 16 A. Yes. 17 Q. And is this document something that you 18 reviewed prior to your testimony today? 19 A. Yes. 20 Q. In your opinion was the civil forfeiture 21 assessed correctly based on the Commission's standard 22 practices and procedures -- 23 A. Yes. 24 Q. -- in this case? All right. Would you ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 104 1 please walk us briefly through the violations and the 2 assessments. I don't think we need to go through 3 each one. It's just important for us to get a feel 4 for how you do this. 5 THE EXAMINER: We will start with the 6 first one. I don't think we will have cumulative 7 evidence. 8 Q. So like the Hearing Examiner suggested -- 9 THE EXAMINER: One quick question. Near 10 the top of this page there is a handwritten NM. 11 THE WITNESS: Are we on Staff Exhibit 6? 12 THE EXAMINER: Staff Exhibit 6 there is a 13 handwritten MN. 14 THE WITNESS: I see that, yes. 15 THE EXAMINER: Do you know what that 16 means? 17 THE WITNESS: I do not know what that 18 means. 19 THE EXAMINER: Does it have any 20 significance to the way it was assessed? 21 THE WITNESS: It has no significance in 22 the way it was assessed. I don't know what that 23 means. 24 THE EXAMINER: Okay. That's all. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 105 1 Q. (By Ms. Parrot) And what appears to be a 2 date in the upper right corner there, 4-27-07? 3 A. The date appears to be handwritten. It 4 corresponds with the date of the completion of the 5 compliance review. If you look at Exhibit 2, date 6 completed is 4-27, 2007, and that's the same date 7 which someone has written up there near the upper 8 right-hand corner. I assume they were referencing 9 the date of the -- 10 THE EXAMINER: It is not you that wrote 11 that? 12 THE WITNESS: I'm sorry? 13 THE EXAMINER: It's not your handwriting? 14 THE WITNESS: It is not my handwriting, 15 no. 16 Q. But, again, this document was prepared by 17 someone under your control and supervision? 18 A. Yes, by Tom Forbes. 19 Q. Okay. Thank you. Well, let's walk 20 through the first violation there. If you could just 21 tell us how you calculated the amount for that 22 violation, please. 23 A. Violation 1 references back on Staff 24 Exhibit 2, page -- it's the fourth page of Staff ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 106 1 Exhibit 2. It's actually called page -- I don't 2 know -- well, it says page 1 of 3, but's actually the 3 4th page back in that exhibit. 4 Q. So it's part B. 5 A. Part B, violations. 6 Q. Page 3. 7 A. Yes. And that part B lists the 8 violations 1 through 12 and all those will correspond 9 on the CR assessment chart on the top of each 10 violation 1, 2, 3, 4 on up to violation No. 12. 11 Q. Okay. 12 A. So looking at violation No. 1, the chart 13 references the violation cited by the investigator 14 382.305B1, failing to conduct random alcohol testing. 15 That is a critical violation so that is something you 16 would assess. As I said before, if it was not 17 critical or acute, we would not assess it. That will 18 come into play on several violations down the line. 19 But the first two are both critical violations. 20 Sticking with the first violation as Staff Exhibit 5 21 says you start with the baseline of $400 so that was 22 the amount that was put in in the very first box 23 under nature & gravity. 24 Moving on down through extent and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 107 1 referencing back to Staff Exhibit 5, the memo, you 2 put a value of 1 in there because it is -- it is an 3 acute violation that is -- 4 THE EXAMINER: What kind of violation? 5 THE WITNESS: I'm sorry. It is a 6 critical violation. I misspoke again. It is a 7 critical violation. So that would receive a value of 8 1. Culpability, I think we spoke about, it's Roman 9 Numeral III, the knowingly standard would apply as 10 opposed to being willful, so it would be a value of 11 1, not 2. And history with no similar violations the 12 value is 1. So essentially what the spreadsheet has 13 done is multiplied 400 times 1 and come up with a sum 14 which is actually a subtotal, I would call it, of 15 $400, about halfway down the list which is $400. 16 Q. Okay. Then it looks like you have the 17 number of violations that you take into 18 consideration. 19 A. Yes. The number of violations that are 20 cited on the -- in part B and that's under 21 discovered, discovered column. 22 Q. Okay. 23 A. So it would be a 1 in there. 1 of 1 is 24 critical, less than 10 percent, so the compliance ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 108 1 officer circled yes. There is nothing -- no values 2 for repeat violations because there was just the one 3 violation so, once again, the $400 carries down. 4 Q. Okay. 5 A. Essentially carries all the way down to 6 the very bottom where it says total. You would take 7 into consideration the 1 percent cap which I said is 8 about 36 -- $3,627 per violation. And obviously 400 9 is not close to that violation, not close to that 10 amount. So the bottom line where it says total, the 11 total amount assessed for this violation 385.30B1 is 12 $400. That same math will apply to the second 13 violation exactly down column per column, row per row 14 down to $400 total for the second violation, 15 382.305B2. 16 Q. And I notice for violations 3 and 4 that 17 there is no amount there that's been assessed. The 18 amount is 0. Why is that? Why is an amount for some 19 violations and then not for others? 20 A. Violations 3 and 4 are not critical or 21 acute violations, so we don't assess them. 22 THE EXAMINER: Mr. Canty, are there any 23 acute violations on this matrix? 24 THE WITNESS: On this, no. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 109 1 Q. What was the total forfeiture amount in 2 this case? Does this show that anywhere? 3 A. Let's see, 14, 18, my math is not that 4 great, 3,700 plus 450. 5 Q. $4,150? 6 A. Exactly. 7 Q. So that was the total amount that would 8 exist. Okay. Are these dollar amounts and 9 procedures that you have just described for us 10 consistent with the Federal Government's uniform fine 11 assessment program? 12 A. We -- yes. We follow the federal 13 guidelines. We take into account the nature & 14 gravity, the extent, culpability, history, ability to 15 pay all the list of criteria that must be taken into 16 account, and we do follow that with our assessment 17 matrix. 18 Q. Does the Commercial Vehicle Safety 19 Alliance have any application in compliance review 20 cases before the Commission? 21 A. I don't believe they address compliance 22 reviews. I think they only address roadsides. 23 Q. Okay. Thank you. Are Staff Exhibits 5 24 and 6 used consistently by the Commission staff for ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 110 1 all carriers in compliance review cases? 2 A. Yes. These are documents that are used 3 for every compliance review. 4 Q. Mr. Canty, based on your review of the 5 file for this case, was the company served with all 6 notices that are required by Ohio law? 7 A. Yes. 8 Q. And if you could direct your attention to 9 what's been marked as Staff Exhibit 7, please. Do 10 you recognize this document? 11 A. Yes. 12 Q. Would you please identify it for us. 13 A. This is a document dated June 14, 2007, 14 addressed to Buckeye Transport, dba, entitled Notice 15 of Apparent Violation and Intent to Assess Civil 16 Forfeiture referencing the -- this compliance review 17 CR294. It is basically the form that is sent to the 18 responsible party whenever we notify them of our 19 intent to assess the civil forfeiture on a compliance 20 review or even a roadside case. 21 Q. Okay. And if you could please turn to 22 the third page of Staff Exhibit 7, would you please 23 identify that document for us. 24 A. Yes. That's dated October 25, 2007, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 111 1 referencing the same compliance review number. This 2 is referred to as our Notice of Preliminary 3 Determination. This is once again a form which is 4 sent to the responsible party following the 5 conference that was conducted between our staff and 6 the company. It basically outlines what our 7 financial determination is, and in this case our 8 determination was to keep each violation assessed at 9 the full amount. 10 Q. Are these documents regularly maintained 11 by the Commission in the ordinary course of its 12 business? 13 A. Yes, they are. 14 Q. And both of these notices contain all of 15 the violations and forfeitures that were assessed in 16 this case; is that correct? 17 A. That's correct. 18 Q. Both of these notices were sent to the 19 company; is that correct? 20 A. Yes. 21 Q. Mr. Canty, in your opinion are the civil 22 forfeiture assessments in this case properly 23 determined and reasonable? 24 A. Yes. In my determination they were ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 112 1 properly calculated. 2 MS. PARROT: Thank you. No further 3 questions. 4 THE EXAMINER: Mr. Davis, any questions 5 for the witness? 6 - - - 7 CROSS-EXAMINATION 8 By Mr. Davis: 9 Q. The schedule of forfeiture, how is that 10 determined again? If I am not mistaken, you said it 11 was an internal decision, the amount to be assessed? 12 A. Are you referring to Staff Exhibit 5? 13 Q. The monetary value. 14 A. Yes. On Staff Exhibit 5 critical is 15 $400; the acute is $1,000. 16 Q. Yeah. That was an internal decision? 17 A. That was a decision made here at the 18 Public Utilities Commission. 19 Q. Okay. You never went to court or you 20 never asked any courts or you didn't go to any law 21 officer? You just said basically we are getting 22 together and this is going to be the base? 23 A. I wouldn't characterize it that way, but 24 we did not go to any court, no. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 113 1 Q. Right. What gives you the authority to 2 assess a company on an individual without going to 3 court? What gives you that authority? 4 A. Federal law. 5 Q. Federal law? I would like to know the 6 federal law. Can you state it to me? 7 A. I don't know it off the top of my head, 8 but the Public Utilities Commission has the authority 9 to assess drivers, shippers, and carriers. 10 Q. What is the mission of the -- 11 THE EXAMINER: Mr. Canty, you are saying 12 that's a matter of federal law the Public Utilities 13 has the authority to assess? 14 THE WITNESS: It's either federal or 15 state. 16 Q. What is the mission of the PUCO? What's 17 the mission of the PUCO? 18 A. The mission of the PUCO? 19 Q. Right. 20 A. I cannot recite it off the top of my 21 head. 22 Q. It's right out there on the wall. Can I 23 read it to you? 24 A. Please. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 114 1 Q. To assure all residential and business 2 consumers access to adequate, safe, and reliable 3 utility services at fair prices whether facilitating 4 an environment that provides competitive choices. 5 This doesn't fall within the realm of assessment to 6 common carriers, does it? 7 A. I don't understand your question. 8 Q. Well, your mission is right out there on 9 the wall. And this is what it says, what I just 10 read. It doesn't say anything about common carriers. 11 Who gives you the right to stick your hand in 12 businesses' pockets and say you owe me this much 13 money without going to court? Who gives you that 14 authority? 15 A. It's either federal or state law. 16 Q. Well, and you can't quote that at all. 17 A. No. I don't know the entire code or Ohio 18 Revised Code. 19 MR. DAVIS: I have no further questions, 20 your Honor. 21 THE EXAMINER: Any redirect? 22 MS. PARROT: Just briefly. 23 - - - 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 115 1 2 REDIRECT EXAMINATION 3 By Ms. Parrot: 4 Q. Mr. Canty, does the Public Utilities 5 Commission have authority over commercial motor 6 carriers and drivers under both federal and state 7 law, specifically Title 49, of the Ohio Revised Code? 8 A. Yes, we do. 9 MS. PARROT: Nothing further. 10 THE EXAMINER: Mr. Canty, is it your job 11 to render legal opinions to the Public Utilities 12 Commission? 13 THE WITNESS: No. 14 THE EXAMINER: Are you here testifying to 15 legal matters of the Public Utilities Commission? 16 THE WITNESS: No. 17 THE EXAMINER: Redirect? 18 MR. DAVIS: No. 19 THE EXAMINER: Recross? 20 MR. DAVIS: No. 21 THE EXAMINER: You are excused. 22 MS. PARROT: Your Honor, at this time 23 Staff moves for admission into evidence of Staff 24 Exhibits 5 through 7. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 116 1 THE EXAMINER: Okay. Mr. Davis, 2 objection? 3 MR. DAVIS: I object, your Honor. They 4 have no legal grounds to assess. 5 THE EXAMINER: Could you expand upon 6 that, please, for the Bench? 7 MR. DAVIS: I'm sorry, sir? 8 THE EXAMINER: Would you expand on why 9 you believe they have no legal grounds to assess? 10 MR. DAVIS: I asked the witness, and the 11 witness cannot give me any law or state any law that 12 gives them any reasonable explanation why they can 13 assess people money without taking them to court. 14 THE EXAMINER: Staff? 15 MS. PARROT: Your Honor, I believe that 16 the witness has, first of all, testified that he is 17 not a lawyer. He is not here giving legal opinions, 18 but the Public Utilities Commission does have 19 authority to assess forfeiture under Title 49. There 20 are federal regulations at issue here. The 21 Commission has adopted those fully within the Ohio 22 Administrative Code. I do not believe there is any 23 question of authority in this case. 24 THE EXAMINER: What's the staff's ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 117 1 authority? Can you give a better cite than Title 49 2 for authority to make assessments under the Revised 3 Code? 4 MS. PARROT: There is several statutes 5 that apply, your Honor. Ohio Revised Code 4905.83 6 which I believe applies only in hazardous materials 7 cases but also Statute 4919.99. 8 THE EXAMINER: Can you give us a summary 9 how 4919.99 might give the authority? 10 MS. PARROT: It specifically gives the 11 authority to assess civil forfeitures. 12 THE EXAMINER: To people engaged -- 13 MS. PARROT: Motor carriers and drivers. 14 THE EXAMINER: In interstate commerce. 15 MS. PARROT: Interstate commerce, yes. 16 THE EXAMINER: Mr. Davis, your response? 17 MR. DAVIS: The prosecutor here was 18 looking up Ohio Revised Code which has nothing to do 19 with the federal -- 20 THE EXAMINER: That may be true but can 21 you respond to the question? They are pointing to 22 their statutory authority at 4919.99 which gives the 23 Commission authority to assess penalties against 24 persons engaged. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 118 1 MR. DAVIS: 4919, your Honor, is Ohio 2 Revised Code. 3 THE EXAMINER: Right. That's their legal 4 authority. Do you have a response to why that does 5 not give the Commission authority to assess 6 penalties? 7 MR. DAVIS: I say we have to go to a 8 court for anything other $3,000 to be assessed. 9 THE EXAMINER: I think we have heard 10 enough. Staff Exhibits 5, 6, and 7 will be admitted. 11 (EXHIBITS ADMITTED INTO EVIDENCE.) 12 THE EXAMINER: Mr. Davis -- I'm sorry. 13 Any other witnesses for staff? 14 MS. PARROT: No further witnesses. 15 THE EXAMINER: Mr. Davis, do you care to 16 call any witnesses? 17 MR. DAVIS: No, sir. 18 THE EXAMINER: Mr. Davis, you understand 19 this is your opportunity to put on your side of the 20 case. There will be no further opportunity after 21 this. If you would like to present any evidence in 22 your defense, this is the time. 23 MR. DAVIS: No, sir. 24 THE EXAMINER: Okay. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 119 1 MR. DAVIS: I don't have any witnesses. 2 THE EXAMINER: Okay. 3 MR. DAVIS: I am not taking the stand 4 because I wasn't there. 5 THE EXAMINER: At this time I think that 6 we only need one round of briefs in this case. 7 Mr. Davis, the brief is your opportunity 8 to present a summation of the evidence and legal 9 arguments that you would like to make in your 10 defense. Briefs in this case will be due on May 11 20 -- May 27. At that time you can present -- staff 12 will prepare its briefs with its summary of the 13 evidence and its legal arguments. You will have an 14 opportunity to file your brief on that day with your 15 summary of the evidence and your legal evidence. 16 MR. DAVIS: Yes, sir. 17 THE EXAMINER: Okay. That being said we 18 are now adjourned. Let's go off the record. 19 (Thereupon, the hearing was concluded at 20 12:27 p.m.) 21 - - - 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 120 1 CERTIFICATE 2 I do hereby certify that the foregoing is 3 a true and correct transcript of the proceedings 4 taken by me in this matter on Monday, April 28, 2008, 5 and carefully compared with my original stenographic 6 notes. 7 8 _______________________________ Karen Sue Gibson, Registered 9 Merit Reporter. 10 (KSG-4887) 11 - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481