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Document: http://tsa.nv.gov/Minutes/December%2019,%202008%20FINAL.doc
STATE OF NEVADA
DEPARTMENT OF BUSINESS AND INDUSTRY
NEVADA TRANSPORTATION AUTHORITY

MINUTES OF THE AGENDA MEETING HELD ON DECEMBER 19, 2008

A duly authorized meeting of the Nevada Transportation Authority was held on Friday, December 19, 2008 at 10:00 a.m. at the Authority’s Offices located at 2290 S. Jones Blvd., #110, Las Vegas, Nevada, and 1755 E. Plumb Lane, Ste. 216, Reno, Nevada.

Call to Order

Roll Call.  Attending in Las Vegas were Chairman Andrew MacKay, Commissioner Michael Kloberdanz, Commissioner Monica Metz, Deputy Commissioner Marilyn Skibinski, Administrative Attorney Jim Day, Applications Manager Liz Babcock, Financial Analyst Yvonne Shelton, Financial Analyst Lidia Aronova, Chief Inspector Michael Bradford, Senior Deputy Attorney General David Newton.

Pledge of Allegiance

**Approval of Agenda.  Mr. Day asked that item 13(d)(10), Citation 14093 issued to Richard Jason Vaughn be pulled.  A Motion to Set Aside has been filed by the Respondent and the matter will be set for a future hearing.  Additionally, with reference to 13(d)(20), Citation No. 14094, the name listed in the Agenda item should be corrected to reflect “Mulugeta Abraham.”  The draft Order is correct.  Ms. Babcock asked that item 13(a)(3), Docket No. 08-10012, Application of SW Excursion & Educational Tours, and item 13(b)(1), Docket No. 08-06016, Application of Aurelio Herrera Garnica, both be pulled for further investigation.  The Authority voted 3-0 to approve the Agenda as amended.

**Approval of the Minutes of the November 20, 2008 Agenda Meeting.  The Authority voted 3-0 to approve the November 20, 2008, Agenda Meeting Minutes.

Ground transportation trends and activity – Briefing by Steve Patterson, Traffic Manager for the Las Vegas Convention and Visitors Authority Security Department.  Mr. Patterson of the Las Vegas Convention and Visitors Authority advised that two full-facility shows are scheduled in January—CES scheduled for January 8th through January 11th, with expected attendance of 140,000 (slightly down from last year), and the Home Builders group scheduled for January 20th through January 23rd with expected attendance of 80,000 to 90,000 people (down from a high of 111,000 a few years ago).  He also indicated that the Home Builders group requested a change in the transportation staging areas and offered to provide a diagram to the limousine companies.

Briefings from the Commissioners

Chairman MacKay wished everyone a Merry Christmas and a Happy New Year.  The Chairman advised that the next legislative session will commence on February 3rd and that the NTA will monitor any legislation that could impact the NTA’s regulated community.

Commissioner Kloberdanz had no comment.

Commissioner Metz wished everyone a safe and happy holiday.

Briefing from the Deputy Commissioner.  Deputy Commissioner Skibinski said that she had no briefings other than to say that it was nice to visit Las Vegas again.

Report of Legal Counsel.  Senior Deputy Attorney General Newton noted that at last month’s Agenda meeting he reported that two hearings would be coming up—Belssner and Esquire Towing.  Since that time, he received a request from Esquire’s counsel to vacate the hearing that had been set on December 5th in order to move it to sometime in January.  Mr. Newton agreed with the request and a date has not yet been set.  After Mr. Belssner’s telephonic connection to his hearing was disconnected, the Judge allowed Mr. Belssner until January 30th to file an amended Petition for Judicial Review that complies fully with NRAP 29.  Mr. Newton filed an Order and a subsequent Notice of Entry of Order so that Mr. Belsner would be aware of the deadline.  If Belssner fails to meet the filing deadline, SDAG Newton will file a Motion to Set Aside.

**Applications for Fully Regulated Carriers

Docket No. 07-04009 The Application of Limousines of Las Vegas, LLC for a Certificate of Public Convenience and Necessity to operate as a common carrier of passengers to provide charter limousine service in the State of Nevada. (MJK)  Mitchell Leavitt, John Reilly, and Mark Malone were present on behalf of the Applicant.  Commissioner Kloberdanz, the Hearing Officer at the Applicant’s hearing, summarized the Application and recommended its approval.  Chairman MacKay indicated that he supported the Application but would require the Applicant to operate with a different name, based upon potential and observed confusion among both the traveling public and Staff with the existing carrier Las Vegas Limousines.  Mr. Leavitt stated that the company would do little advertising.  Commissioner Metz and Ms. Babcock echoed the Chairman’s concerns.  Commissioner Kloberdanz acknowledged the concerns but restated his support for approval under the current name.  John Hickman, General Manager for Las Vegas Limousines, stated that Las Vegas Limousines opposes the Applicant’s proposed use of “Limousines of Las Vegas”; that the name is valuable to the company; and that the name has been registered for a long time.

Commissioner Kloberdanz moved for approval of the Application as filed.  The motion failed for lack of a second.  Chairman MacKay moved for approval of the Application conditioned upon an additional compliance item requiring the Applicant to notify the Authority of its selection of a fictitious name (DBA) that avoids confusion with a currently certificated carrier.  The Authority voted 2-0 to approve the Application with the additional compliance item, with Commissioner Kloberdanz abstaining.

Docket No. 08-12006 The Request of Mesquite Bus Company, Inc. to temporarily discontinue airport transfer service under Certificate of Public Convenience and Necessity (CPCN) 2041, Sub 1 for the period of January 1, 2009 to June 30, 2009.  Staff investigation concluded.  Ann Casey and Kimberly Rushton, Esq. were present on behalf of the Applicant.  Chairman MacKay summarized the Application and indicated that the request for temporary discontinuance was for the airport transfer service only.  Ms. Casey read a statement outlining the history surrounding her company’s entry into airport transfer service, including the role of a competitor, Airline Limousine Co. (“ALC”).  Ms. Casey further requested that Mesquite Bus Company be allowed to honor six confirmed reservations for January 2009.

Neal Tomlinson, Esq., on behalf of his client ALC, stated that the company takes strong exception to Ms. Casey’s comments regarding ALC.

Mr. Day indicated that he researched Ms. Casey’s request that bookings be honored in January during Mesquite Bus Company’s period of discontinuance and concluded that the company must provide continuous service or none at all.   Mr. Newton concurred with Mr. Day’s analysis.  Ms. Rushton stated that Mesquite Bus Company is attempting to fulfill their obligations with respect to following the statutory and regulatory provisions and yet still meet the public necessity to serve the public.  Further discussion ensued regarding the request to  provide service to six passengers during Mesquite Bus Company’s temporary discontinuance in January.  Ms. Rushton volunteered to assist the Authority in drafting an order allowing that transportation.  The Authority voted 3-0 to approve the Application for Temporary Discontinuance of airport transfer service from January 1, 2009, through June 30, 2009, as amended to allow the six (6) specific airport transfers during January, 2009.

**Financial Rates and Tariffs

Docket No. 08-11007 The Application of 24/7 Entertainment, LLC dba 24/7 Entertainment Limousines for approval of a tariff rate modification for charter limousine services conducted under Certificate of Public Convenience and Necessity (CPCN) 1102.  Staff investigation concluded.  Tony Clark was present on behalf of the Applicant.  Ms. Aronova summarized the Application and recommended its approval.  The Authority voted 3-0 to approve the Application.

Docket No. 08-11011 The Application of Bell Trans for approval of a tariff rate modification for charter limousine services conducted under Certificate of Public Convenience and Necessity PSC 1023, Sub 1, Tariff 2.  Staff investigation concluded.  Brent Bell was present on behalf of the Applicant.  Ms. Aronova summarized the Application and recommended its approval.  The Authority voted 3-0 to approve the Application.

Docket No. 08-11015 The Application of Alan Waxler Group Charter Service, LLC dba AWG Charter Service for approval of a tariff rate modification for charter limousine services conducted under Certificate of Public Convenience and Necessity (CPCN) 1068, Sub 3.  Staff investigation concluded.  Alan Waxler, Paul Servello, Daniela Chan, and Debi Paige were present on behalf of the Applicant.  Ms. Aronova summarized the Application and recommended its approval.  The Authority voted 3-0 to approve the Application.

Docket No. 08-11027 The Application of RET Services, Inc. for approval of a tariff rate modification for charter limousine services conducted under Certificate of Public Convenience and Necessity (CPCN) 1104.  Staff investigation concluded.  David Kent was present on behalf of the Applicant.  Ms. Aronova summarized the Application and recommended its approval.  The Authority voted 3-0 to approve the Application.

**Petition for Advisory Opinion:

Docket No. 08-12001 Petition filed by Randell S. Hynes pursuant to NAC 706.4007 for an advisory opinion regarding applicability of statutory and/or regulatory provisions.  The Petition asks “Does the entire Board stand by the Administrator’s position and does the Administrator continue to stand by the claim that charter limousines are allowed to provide whatever transportation desired and call it prearranged as long as the service is reported to the company dispatcher?”  Trailed to be heard prior to the Public Comment.

**Consent Items:

Applications for Certificates of Public Convenience and Necessity to Provide Charter Bus Service

Docket No. 08-05011 The Application of All Resort coach, Inc. dba Lewis Stages for a Certificate of Public Convenience and Necessity to provide charter bus service within the State of Nevada.  Staff investigation concluded.  Brent Carson, Esq. was present on behalf of the Applicant.  Ms. Babcock summarized the Application and recommended its approval.  The Authority voted 3-0 to approve the Application.

Docket No. 08-06001 The Application of Try A New Route Transportation, LLC for a Certificate of Public Convenience and Necessity to provide charter bus service within the State of Nevada.  Staff investigation concluded.  Piper Robinson and Antoinette Rowland were present on behalf of the Applicant.  Ms. Babcock summarized the Application and recommended its approval.  The Authority voted 3-0 to approve the Application.

Docket No. 08-10012 The Application of SW Excursion & Educational Tours, Inc. for a Certificate of Public Convenience and Necessity to provide charter bus service within the State of Nevada.  Staff investigation concluded.  This Application was pulled for further investigation.

Applications for Certificates of Public Convenience and Necessity to Provide Tow Car Service

Docket No. 08-06016 The Application of Aurelio Herrera Garnica dba El Mexicano Towing Service for a Certificate of Public Convenience and Necessity to provide tow car service by tow car within the State of Nevada.  Staff investigation concluded.  This Application was pulled for further investigation.

Docket No. 08-09024 The Joint Application of Sunrise Towing, Inc. to sell and transfer and of Sam C. Felli, Trustee of the S. R. Bowden Living Trust, to purchase and acquire the common stock of Sunrise Towing, Inc. Staff investigation concluded.  Ms. Babcock summarized the Application and recommended its approval.  The Authority voted 3-0 to approve the Application.

Docket No. 08-09030   The Application of Mai Niv Enterprises, Inc. dba ABC Towing for a Certificate of Public Convenience and Necessity to provide tow car service by tow car within the State of Nevada. Staff investigation concluded.  Ms. Babcock summarized the Application and recommended its approval.  The Authority voted 3-0 to approve the Application.

Notice Only (No Action Required)

Docket No. 08-11021 The voluntary cancellation by Japan International Tours, Inc. of Certificate of Public Convenience and Necessity (CPCN) 2061.  Staff investigation concluded.  Notice only.

Docket No. 08-12003 The voluntary cancellation by Scotty’s Towing, Inc. of Certificate of Public Convenience and Necessity (CPCN) 7206.  Staff investigation concluded.  Notice only.

Administrative Citations and Impoundments.  Chairman MacKay explained that items 13(d)(1) through 13(d)(25), with the exception of item 13(d)(10) which has been pulled, are administrative citation and impound matters in which either Staff has submitted a Settlement Agreement for approval or a hearing officer presided over the hearing with respect to the alleged violation(s), made findings, and provided recommendations with respect to appropriate fines and/or other remedies.  Item 13(d)(20) has been amended to read “Mulgueta Abraham” instead of Abraham Mulgueta.  The Authority voted 3-0 for approval of agenda items 13(d)(1) through 13(d)(25), with the exception of item 13(d)(10).

Impound 1169.  The impoundment pursuant to NRS 706.756 of a vehicle registered to Paul Rivadeneyra. (AJM)

Citation 14404 issued to DM Express, LLC/Damian Rivadeneyra for violations of NRS 706.386 and NRS 706.758. (AJM)

Impound 1238 The impoundment pursuant to NRS 706.756 of a vehicle registered to See & Do, Inc. (MJK)

Impound 1312 The impoundment pursuant to NRS 706.756 of a vehicle registered to Jose Perez, Sr. (MJK)

Impound 1052 and Citation 14578 The impoundment pursuant to NRS 706.476 of a vehicle registered to and Citation Number 14578 issued to Brian J. Paynter for violations of NRS 706.386 and NRS 706.758. (MJK)

Citation 13627 issued to Michael Ernest Valenti for a violation of NAC 706.228 as amended by LCB No. R127-07. (MBM)

Citation 13628 issued to Lonnie Crosby for a violation of NAC 706.228 as amended by LCB No. R127-07. (MBM)

Citation 13635 issued to Thomas Charles Sampson for a violation of NAC 706.228 as amended by LCB No. R127-07. (MBM)

Citation 14072 issued to Obry Jiji for a violation of NAC 706.228. (MBM)

Citation 14093 issued to Richard Jason Vaughn for a violation of NAC 706.329. (MBM)  This Citation has been pulled to be placed on a future Agenda.

Citation 14279 issued to Preston Andrew Addeo for violations of NRS 706.386 and NRS 706.758. (MBM)

Citation 14324 issued to Daniel Eco Asuncion for a violation of NAC 706.228 as amended by LCB No. R127-07. (MBM)

Citation 14568 issued to Thomas Charles Sampson for a violation of NAC 706.228 as amended by LCB No. R127-07. (MBM)

Citation 14577 issued to Edward A. Mordini for violations of NRS 706.386 and NRS 706.758. (MBM)

Impound 1207 The impoundment pursuant to NRS 706.756 of a vehicle registered to Carmine M. Addeo. (MBM)

Impound 1317 The impoundment pursuant to NRS 706.476 of a vehicle registered to Christine M. Deacetis. (MBM)

Impound 1307 and Citation 14044 The impoundment pursuant to NRS 706.756 of a vehicle registered to Russ Smelser and Beining Smelser and Citation Number 14044 issued to Russell James Smelser, Jr. for violations of NRS 706.386 and NRS 706.758. (MBM)

Citation 14071 issued to John Bonilla, Jr. for a violation of NAC 706.329.

Citation 14073 issued to Kashley William Kotera for a violation of NAC 706.228 as amended by LCB No. R127-07.

Citation 14094 issued to Abraham Mulugeta Mulugeta Abraham for a violation of NAC 706.329.  This item has been amended to read “Mulugeta Abraham” instead of Abraham Mulugeta.

Citation 14097 issued to Solomon W. Gebrekiros for a violation of NAC 706.228.

Citation 14098 issued to Arman Guyumjyan for a violation of NAC 706.228.

Citation 14309 issued to BLS Limousine Service of Las Vegas, Inc. for violations of NAC 706.3612 (19 Counts).

Citation 14325 issued to Douglas Rodriguez for a violation of NAC 706.228 as amended by LCB No. LCB R127-07.

Citation 14552 issued to Douglas Rodriguez for a violation of NAC 706.228 as amended by LCB No. R127-07.

**Petition for Advisory Opinion:

Docket No. 08-12001 Petition filed by Randell S. Hynes pursuant to NAC 706.4007 for an advisory opinion regarding applicability of statutory and/or regulatory provisions.  The Petition asks “Does the entire Board stand by the Administrator’s position and does the Administrator continue to stand by the claim that charter limousines are allowed to provide whatever transportation desired and call it prearranged as long as the service is reported to the company dispatcher?”  The Petitioner, Randell S. Hynes, was present. Mr. Hynes stated that he is an “interested party” pursuant to NAC 706.4007 in that, although he is not a  union, he represents taxicab drivers through his United Taxicab Drivers Corporation, which under a recent Nevada Supreme Court decision would qualify as an employee organization.

Mark Trafton, Esq., on behalf of Bell Trans, stated that “any interested person” is analogous to the Nevada Supreme Court’s consideration of a “legally protectable interest.” Mr. Trafton argued that since Mr. Hynes is not a taxicab driver and lacks legal authority to represent taxicab drivers, he has no legally protectable interest and therefore lacks standing in this matter.  Further, Mr. Trafton stated that the Petition is outside the scope of NAC 706.4007 in that it does not concern the applicability of any statute, regulation, or decision of the Authority.  Mr. Trafton requested that the Authority deny Mr. Hynes’ Petition request.

Kimberly Rushton, Esq. echoed Mr. Trafton’s comments with respect to both the Petitioner’s lack of standing and the Petition falling outside the scope of NAC 706.4007.  Ms. Rushton requested that the Authority deny Mr. Hynes’ Petition request.

Brent Carson, Esq., on behalf of On Demand Sedan and Desert Cab, concurred with Mr. Trafton and Ms. Rushton with respect to both the Petitioner’s lack of standing and the Petition falling outside the scope of NAC 706.4007.  Mr. Carson also argued that the Petition should be dismissed based upon a lack of timeliness, since the definition of “pre-arranged” was originally addressed in 2002, with ample opportunity for comments and objections during the adoption process and in the interim.

Anthony Marzolla, a taxicab driver, stated that Mr. Hynes spoke on his behalf and that he could bring more drivers to a future meeting to support Mr. Hynes.

Mr. Newton advised that the Authority has broad discretion to interpret “interested person.”

Commissioner Metz commented that since the term appears in a regulation, it is a legal term meaning a person whose rights would be affected by the advisory opinion or declaratory order.

Commissioner Kloberdanz stated that in his opinion “interested” means someone with a vested interest, financial outlay, blood and sweat that they put into a business.

Chairman MacKay stated that agreed with Commissioner Kloberdanz’ statement that business owners would be interested parties, and would perhaps extend the definition to include persons directly regulated by the Authority—such as limousine drivers—but not taxicab drivers within Clark County who are not regulated by the Authority.

Commissioner Metz commented that it was the Authority’s policy to try to answer any questions that come up from the general public regardless of “interested person” status.  Therefore, as an individual Commissioner, she would not mind answering, without seeking any discussion or action from the rest of the Board, Mr. Hynes’ question in a public comment forum.

The Authority voted 3-0 to deny Mr. Hynes’ request for advisory opinion based upon the lack of standing of the Petitioner.

Public Comment.  Alan Waxler of Alan Waxler Group Charter Services requested that the lower two tiers of the model fuel surcharge table be reinstated.  Brent Bell of Bell Trans concurred.  Commissioner Metz suggested a Special Agenda meeting in Januaryto address this proposal.

Brent Bell stated that a tariff allowing different weekend rates was bad for business, bad for the industry, and constitute “predatory pricing.”  Mr. Carson concurred.

Anthony Marzolla stated that he has been driving taxis and limos for 27 years all over the country and was unaware of another state with separate commissions for the taxi and limo industries.  He finds this arrangement problematic and believes it leads to inaction on abuses by limo drivers that affect taxicab drivers.  Chairman MacKay answered that the two separate entities are established by statute.  Commissioner Metz objected to Mr. Marzolla’s claim of inaction, noting that the NTA sent letters to all of the major casino properties regarding the doormen receiving kickbacks from limo drivers and that NTA Enforcement Staff writes numerous solicitation citations.

Randall Hynes stated that represents many taxicab drivers; that the taxicab industry is in great turmoil; that taxicab drivers are hurting; that competition from limos at the taxi stands is substantial; that he objects to the definition of “pre-arranged”; and that he will continue to fight for taxicab drivers.

Commissioner Metz stated that the definition of “pre-arranged” is clear; that it is free of ambiguity, vagueness or potential for confusion; that it has not been challenged since it was enacted in 2002; and that certificated carriers are operating well within their authority to take walk-up rides as long as the driver calls into central dispatch before providing a service.

Adjournment.  12:30 p.m.