FATHERS & SONS v. Transp. Servs. Auth.

182 P.3d 100
CourtNevada Supreme Court
DecidedMay 1, 2008
Docket47156, 47349
StatusPublished

This text of 182 P.3d 100 (FATHERS & SONS v. Transp. Servs. Auth.) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FATHERS & SONS v. Transp. Servs. Auth., 182 P.3d 100 (Neb. 2008).

Opinion

182 P.3d 100 (2008)

FATHER & SONS & A DAUGHTER TOO, Appellant,
v.
TRANSPORTATION SERVICES AUTHORITY OF NEVADA, Respondent.
Father & Sons & A Daughter Too, Appellant,
v.
Transportation Services Authority of Nevada, Respondent.

Nos. 47156, 47349.

Supreme Court of Nevada.

May 1, 2008.

*101 Markoff & Boyers and Daniel Markoff, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, and Michael P. Mersch, Senior Deputy Attorney General, Carson City, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

NRS Chapter 706 defines fully regulated common motor carriers as including persons who hold themselves out to the public as willing to be employed to transport household goods by vehicle within Nevada. Nevada law further defines the "transportation of household goods" as including the movement of such household goods by use of a rented vehicle that is driven by someone associated with an entity that has a commercial or financial interest in providing services related to the movement of those goods.

Based on these statutory definitions, we conclude that a company that is financially *102 interested in providing extended referral services to the public to facilitate intrastate moves through individuals who are paid to load, drive, and unpack vehicles containing household goods may qualify as a fully regulated common motor carrier even though the company itself does not physically move the goods.

FACTUAL AND PROCEDURAL BACKGROUND

These appeals arise from two citations and fines levied against appellant Father & Sons & A Daughter Too (FSD2) by respondent Transportation Services Authority of Nevada (TSA) for alleged violations of NRS 706.386, which proscribes fully regulated common motor carriers from operating as carriers of intrastate commerce without first obtaining a certificate of public convenience and necessity from the TSA.

FSD2's referral service and related documents

FSD2 is a licensed referral service that refers customers to licensed loader/packers for local household moving services. FSD2 publicly advertises its services in telephone directories. When a customer seeks a referral by calling the number listed in FSD2's advertisement, FSD2 requires that the customer agree to rent a vehicle for use during the move from the Truck Company, which is owned by the owners of FSD2 and operates from the same address, before FSD2 will refer the customer to a loader/packer. Once the customer agrees to this arrangement, FSD2 notifies a loader/packer about the job by calling a mobile phone provided by FSD2. FSD2 then gives the loader/packer several contracts and other documents for the customer to sign. The loader/packer also receives moving supplies, such as dollies and blankets, from the Truck Company as part of the rental service paid for by the customer.

Three separate documents formalize each customer transaction with FSD2, the Truck Company, and the loader/packer: (1) a loader/packer work agreement,[1] (2) FSD2's Explanation of Service,[2] and (3) an invoice from the Truck Company.[3] All three documents are marked with the same transaction number and list FSD2 as the "Agent Company."

Citations and fines issued to FSD2

In these appeals, FSD2 challenges citations and fines issued on two separate occasions. On the first occasion, a TSA agent observed two men carry household goods out of an apartment, load them into a van rented *103 from the Truck Company, and drive the van to a second residence where the men unloaded the goods. After the move was complete, the TSA agent stopped the van and questioned the men.

Upon questioning, the men offered conflicting stories: one man stated that he was an independent contractor, while the other man stated that he was an FSD2 employee and that he and his partner had been "assigned" to "truck # 2" by FSD2's dispatcher on the day in question. The second man questioned repeated his assertions during a later interview with TSA investigators, stating that he reported daily to FSD2's office to pick up assignments and to receive cash payments for his work. In addition, upon request by TSA officials, that man produced a copy of each of the three documents described above — a loader/packer work agreement, FSD2's Explanation of Service, and an invoice from the Truck Company — for the move in question. Each of these three documents were marked as transaction "No. 09666" and signed by the customer.

On the second occasion, a TSA agent observed two men load household goods from an apartment into a vehicle and drive the vehicle to a second residence, where they unloaded the goods. After the agent approached the vehicle's driver, the driver told the agent that he worked for the Truck Company.[4] The driver further explained that FSD2 had referred him to the job but that the customer had paid him and his assistant in cash for their services, separate from any amount paid to FSD2. Upon searching the driver's truck, the TSA agent found copies of the loader/packer work agreement, FSD2's Explanation of Service, and the Truck Company invoice. All three documents were marked as "No. 2711" and signed by the customer.

On both occasions, the TSA agents issued citations to FSD2 and the loader/packers for violations of NRS 706.386.[5] After the TSA held hearings on the citations, it issued written findings of fact and conclusions of law, in which it determined that FSD2's conduct in both instances constituted point-to-point transportation within the state without proper certification. The TSA based its conclusions on the interconnectedness of the three documents described above and the fact that FSD2's Explanation of Service provided for the loader/packers to load, drive, and unload the vehicle rented from the Truck Company. According to the TSA, the loader/packers "were not `independent contractors' . . . but rather acted as agents, under the direction and control of [FSD2]."

FSD2 timely filed separate petitions for judicial review with the district court. The district court denied both petitions, concluding that FSD2 had held itself out as a common motor carrier and that substantial evidence supported the TSA's determination that it had violated NRS 706.386. These appeals followed.

DISCUSSION

On appeal, FSD2 argues that the TSA's conclusions are not supported by substantial evidence and that certain NRS Chapter 706 provisions are unconstitutional. We disagree and therefore affirm the district court's orders denying FSD2's petitions for judicial review.

Standard of review

When a party challenges a district court's decision to deny a petition for judicial review of an administrative agency's determination, our function, which is identical to that of the district court, is to review the evidence presented to the agency and ascertain whether the agency abused its discretion by acting arbitrarily or capriciously.[6]

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Bluebook (online)
182 P.3d 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fathers-sons-v-transp-servs-auth-nev-2008.