Jerry Kopel


July 21, 2008

By Jerry Kopel

More taxicabs in 2008? Driven by cab drivers who won't harm the customers? Gains have been made by the passage of HB 1227 sponsored by Rep. Alice Madden, D-Denver, and Sen. Abel Tapia, D-Pueblo, amending the Public Utilities Commission (PUC) statutes.

Here are some amended provisions:

"... the granting of a certificate ... to operate a motor vehicle for hire as a taxicab within and between counties with a population of 70,000 or greater ... shall not be deemed to be an exclusive grant or monopoly, and the doctrine of regulated competition shall prevail ... to provide taxicab service within and between ... Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas, El Paso, and Jefferson."

"The applicant shall have the initial burden of proving it is operational and financially fit to provide the proposed service. The applicant shall not be required to prove the inadequacy of existing taxicab service, if any, within the applicant's proposed geographic area of operation.

"If the applicant sustains its initial burden of proof ... there shall be a rebuttable presumption of public need for the service, and the party or parties opposing the applicant shall bear the burden to prove that the public convenience and necessity does not require granting the application and that the issuance of the certificate would be detrimental to the public interest."

I think the final version is weaker than the original bill. There is now only a "rebuttable presumption" resulting from the evidence of the proponents.

In Black's Law Dictionary, "a disputable presumption, called also an inconclusive or rebuttable presumption is an inference of law which holds good until it is invalidated by (1) proof or (2) a stronger presumption."

How much proof is needed to overcome a rebuttable presumption of public need for the service? A stronger presumption can defeat a rebuttable presumption. In my opinion, the evidentiary burden on the opponents is less than it was in the original bill.

Who can drive the taxicab? This was not an issue the Dept. off Regulatory Agencies (DORA) considered in its Sunset report on the PUC.

HB 1227 highlights the standard of who cannot qualify as "the individual is not of good moral character as determined by the commission based on the results of the criminal history record check required ..."

Also added: "The individual has been convicted of a felony or misdemeanor involving moral turpitude, which includes but is not limited to sexual offenses against a child."

The cross reference on moral character is found in CRS 24-5-101 (2) which actually reduces the burden on the applicant by stating:

"The intent of this section is to expand employment opportunities for persons who, notwithstanding that fact of conviction of an offense, have been rehabilitated and are ready to accept the responsibilities of a law-abiding and productive member of society."

* * *

Closing a loophole: According to DORA, there are some investor owned water utilities which provide both water and sewer service to their customers.

A water corporation that supplies both water and sewer services to customers was previously not defined as a public utility. That allowed water corporations to "potentially drastically raise fees on sewer rates instead of water rates to avoid regulation by the PUC. The practice is gaining momentum ..."

DORA recommended revising CRS 40-1-103, and HB 1227 did so. "Water corporation" now includes a combined water and sewer corporation, whether a single entity or as different entities under common ownership.

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The DORA report suggested that "allowing the PUC to assess fines administratively, rather than through district court, would grant a powerful cost-effective means of compelling compliance with the law".

HB 1227 does give the commission director such authority , subject to a commission hearing, but only if the violation was intentional. Otherwise, at least in my reading, the issue of fines remains under district court jurisdiction.

The state auditor should review this amendment in several years to see what effect the administrative authority has produced. If not much, than "negligence" should be added to "intentional" violation.

* * *

Putting an eleven year waiting period (2019) for the next repeal of the PUC statute makes no sense. There will be massive changes over the next several years regarding energy policies, and legislators should have an opportunity to read reliable suggestions.

The research staff at DORA did an excellent review in 2007, but there will not be a similar review in any future year by DORA in this commission's activities until 2018.

(Jerry Kopel served 22 years in the Colorado House.)

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