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Dunnagan v. Ndikom8/1/2000
Appeal by intervenors from judgment entered 12 May 1999 by the North Carolina Utilities Commission. Heard in the Court of Appeals 18 May 2000.
On 13 October 1998, Kyrian C. Ndikom d/b/a American Moving Service ("petitioner") filed an application for a certificate of public convenience and necessity with the North Carolina Utilities Commission ("the Commission"), seeking common carrier authority to transport Group 18-A household goods throughout the State of North Carolina.
Moving companies who had previously been authorized by the Commission to provide intrastate, long-distance moving services, namely James G. Dunnagan d/b/a Dunnagan's Moving & Storage, Movin' on Movers, Inc., Horne Storage Co., Inc., Atlantic-Pacific Van & Storage, Inc., City Transfer & Storage Co., Inc., and Security Storage Company of Raleigh, Inc., ("intervenors") filed a joint protest and petition to intervene in the matter. The Commission granted their motion to intervene.
The following evidence was presented at the hearing before Hearing Examiner Barbara A. Sharpe. Petitioner worked for his mother's moving company, American Moving Systems & Storage ("American"), for approximately one year. American provided local moving services in Durham, North Carolina. Petitioner had never provided statewide,long-distance moving services in North Carolina prior to filing his application with the Commission. Petitioner had one employee, and he planned to use four trucks for his moving service, at least three of which were titled in his mother's name. While working for American, petitioner provided unlawful moving services, failed to provide workers' compensation insurance coverage for his employee, failed to withhold payroll taxes from the employee's wages, and was partly responsible for false and misleading advertising published by the company.
Approximately two hundred goods carriers were authorized in North Carolina at the time of the hearing. Intervenors are sometimes idle due to a lack of demand for movers. They have not refused any potential customer for lack of capacity, and they are capable of accommodating any foreseeable increase in demand for intrastate moving services.
The Hearing Examiner issued a recommended order denying petitioner's application on 12 February 1999. Petitioner filed exceptions and the Commission heard oral arguments on the exceptions. On 12 May 1999, the Commission entered its final order, which included the following pertinent findings of fact:
2. Applicant is a sole proprietor located in Durham, North Carolina, and desires to operate under the trade name American Moving Service. Applicant currently works for American Moving Systems & Storage (American Moving Systems) owned by his mother. American Moving Systems operates within the Durham commercial zone and has provided some moves outside the Durham area prior to the receipt of its exemption certificate from the Division of Motor Vehicles in 1998. Applicant has performed no moves under the name of American Moving Service.
5. Henry L. Platts, Sr., is a resident of Durham and a retired, disabled truck driver. In February 1998, Mr. Platts met the Applicant when American Moving Systems moved him within the Durham city limits. Prior to the move, Mr. Platts called a number of moving companies in the Durham telephone book. He received some estimates and finally hired American Moving Systems. He was very satisfied with the move. Mr. Platts testified that he has no plans to move in the future but that his daughter will be moving from Roxboro to Durham in the future. He would recommend that she use the Applicant for the move if this authority is granted. Mr. Platts also t
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