Decision

Decision for DCB TRANSPORT LIMITED and TRANSPORT MANAGER DANIEL BERZOVAN

Published 27 May 2022

0.1 EASTERN TRAFFIC AREA

1. WRITTEN DECISION OF DEPUTY TRAFFIC COMMISSIONER MR M DORRINGTON

1.1 IN THE MATTERS OF: DCB TRANSPORT LIMITED – OF2035783 AND TRANSPORT MANAGER DANIEL BERZOVAN

1.2 PUBLIC INQUIRY HELD ON 16 MAY 2022

AT THE OFFICE OF THE TRAFFIC COMMISSIONER IN CAMBRIDGE

2. Background

DCB Transport Ltd (hereinafter the “operator”) holds a standard international goods vehicle operator’s licence, reference OF2035783 authorising 7 vehicles and 7 trailers with, currently, 2 vehicles in possession. The sole director is Mr Daniel Berzovan who is also the specified transport manager.

As a result of adverse reports received from the Driver and Vehicle Standards Agency (“DVSA”) a “Propose to Revoke Letter” was sent to the operator. The operator requested a public inquiry which was listed, before myself, to be held on 16 May 2022 at the Office of the Traffic Commissioner in Cambridge with a start time of 1000 hours. Both the operator and transport manager were called to that hearing.

In the week before the public inquiry the caseworker telephoned the operator and spoke to Mr Berzovan. He confirmed that he was aware of the hearing and that he would seek to surrender the operator’s licence.

I waited until 1045 hours today before starting the public inquiry. No one attended for the operator.

In attendance, via video link, for DVSA were Vehicle Examiner Lockwood and Traffic Examiner Hawkins.

I explained why I was satisfied that the operator had been properly notified of the hearing today; the call up letter had been sent to the last known address and the operator had confirmed last week on the telephone that they were aware of the hearing. There was no application before me to adjourn the hearing. There was no persuasive reason to adjourn on my own volition. There was sufficient evidence before me to reach a fair decision in the absence of the operator and in the absence of the transport manager.

3. Findings and reasons

Before me was a public inquiry bundle paginated to page 107. In addition, was further evidence from Vehicle Examiner Lockwood concerning prohibition notices issued to the operator’s vehicles and trailers (one page) and a further page that was a screenshot confirming that vehicle AY11ALO was out of test with the test expiring on 01 June 2021 but the vehicle was not removed from the operator’s licence until 29 November 2021. That extra evidence was allowed into the proceedings as there was no prejudice to the operator given the operator would already have been aware of the subject matter from the prohibition notices that were issued and the DVSA investigation findings.

I heard in evidence from both Vehicle Examiner Lockwood and Traffic Examiner Hawkins.

From all of the evidence that was before me I made my findings of fact after applying the civil burden of proof (the balance of probabilities) to the evidence that I considered to be relevant to the subject matter at hand.

The operator failed to provide any documents/submissions in response to the call up letter.

The operator is not of appropriate financial standing because no documents to show appropriate financial standing have been submitted.

The report (see pages 48 onwards of the bundle) from Traffic Examiner Hawkins is credible, cogent and persuasive. I have accepted his report as such.

In addition, Traffic Examiner Hawkins confirmed in oral evidence that at the time of his investigation he considered that this operator and its transport manager had put road safety at risk. He further confirmed that he still considered that road safety was being put at risk by this operator because (a) there had been no response from the operator to the report the Traffic Examiner had produced (and a response was required within 14 days, see page 59) and (b) there had been the production of no evidence before this public inquiry for the Traffic Examiner to see and assess to show compliance/improvements made. Traffic Examiner Hawkins further confirmed that in his 5 years as a Traffic Examiner he had never scored an operator as high as this operator had been scored, such was the level of noncompliance that had been identified.

I accepted the oral evidence of Traffic Examiner Hawkins as being credible, cogent and persuasive.

I find all the allegations made by Traffic Examiner Hawkins to be proven. Those proven allegations are repeated in full and I adopt them as my own findings for the purposes of this decision.

The report (see pages 60 onwards in the bundle) from Vehicle Examiner Lockwood is credible, cogent and persuasive. I have accepted it as such.

In addition, Vehicle Examiner Lockwood gave oral evidence and he confirmed that at the time of his investigation he considered this operator and transport manager had put road safety at risk. He further confirmed, with reasons, why he still considered this operator and transport manager to be putting road safety at risk.

I accepted the oral evidence of Vehicle Examiner Lockwood as being credible, cogent and persuasive.

I find that all of the allegations made by Vehicle Examiner Lockwood are proven. Those proven allegations are repeated in full, and I adopt them as my own findings for the purpose of this decision.

Road safety has been put at significant risk by this operator and transport manager and it continues to be put at significant risk; such is my finding from the evidence before me. No lessons have been learned, indeed, despite the intervention of DVSA the serious level of noncompliance has continued; for example, the Traffic Examiner investigation took place in November 2021 but on 28 January 2022 vehicle PO13WLP was stopped and EU drivers hours offences were found that resulted in a fixed penalty being issued at the roadside which the operator then failed to notify to the Traffic Commissioner.

From the evidence before me, and the findings I have adopted/made from that evidence there was no, or no effective, management control by the sole director Mr Daniel Berzovan.

From the evidence before me, and the findings I have adopted/made from that evidence there was no, or no effective, management of the transport undertaking by the transport manager.

There was no evidence before me to show any improvements in either the maintenance of the vehicles or in drivers’ hours and tachograph rules and regulations compliance.

There had been many prohibitions issued with three “S” marked prohibitions. I find that the “S” marking does denote a significant failure on roadworthiness compliance. The prohibitions demonstrate clearly that vehicles and trailers were not being kept in a fit and serviceable condition by this operator.

The operator was not using the authorised operating centre which is an offence for each and every day that an unauthorized operating centre was used under section 7 of the Act. Here I find that many offences were committed with the authorized operating centre only being used after the DVSA encountered the operator on 08 October 2021. No operator can plead ignorance to only being allowed to use an authorized operating centre by want of the notes attached to all operating licences, the fact that Statutory Document number 4 issued by the Senior Traffic Commissioner is a document that has been in the public domain for over a decade (and the Upper Tribunal confirmed in appeal 2012/030 MGM Haulage and Recycling Ltd that operators are deemed to know the advice and guidance that is in the public domain) and deals with operating centres and by the fact that the sole director of this operator is also the transport manager.

There was no evidence before me to show that the transport manager’s CPC was valid in the United Kingdom. It was granted in Romania on 02 November 2019. Since 01 January 2021, any European Citizen must have “Settled Status” under the EU Settlement Scheme, or a work visa to be able to work in this country. The corresponding legislation concerning transport managers confirms that a transport manager must have a CPC certificate issued in the country that they normally reside in for it to be valid. “Normally” in that sense, means for at least 185 days per annum. Here (despite the unpaginated letter of 11 April 2022 at the start of the bundle to Mr Berzovan) the transport manager had provided no evidence to show that (a) he normally lived in the United Kingdom and (b) he had been granted Settled Status that allowed him to work in the United Kingdom (or had been granted a work visa if applicable).

I formally find that the CPC of Mr Berzovan is not valid in the United Kingdom. As a result, this operator is not professionally competent.

The conditions on the operator’s licence were breached by the operator’s failure to inform the Traffic Commissioner within 28 days of an event that may affect the good repute/professional competence/appropriate financial standing of the operator. There were many such events from the DVSA evidence before me and from the lack of any financial standing documents before me.

The undertakings on the operator’s licence had been breached for a long time and there was no evidence (in response to the call up letter) before me to show that they were no longer being breached.

This is one of those extremely rare cases where there are virtually no positives that I can think of for this operator for which credit can be given other than, I suppose, that the director actually replied to Vehicle Examiner Lockwood’s MIVR report albeit not in a way that was regarded as satisfactory.

Giving very limited credit to that one partial positive when balanced against the significant weight I attach to all of the negatives in this case (not least the ongoing risk to road safety) I find that the negatives outweigh the positives.

I have then had regard to Statutory Document number 10 issued by the Senior Traffic Commissioner and Annex 4 therein. From all of the findings I have adopted and made the following are the negatives and positives that I have identified in Annex 4:

Positives: Above average first-time pass rate at MOT

Negatives:

• Deliberate/reckless act(s) by operator/driver leading to road safety risk or unfair commercial advantage.

• Substantial number of prohibitions

• Ineffective management control and appropriate systems and procedures.

• Ineffective analysis procedures in place to detect falsification, drivers’ hours (EU and GB) and/or WTD infringements.

• Ineffective driver/maintenance staff training with appropriate monitoring and discipline e.g., no training with regards to DDRS

Insufficient and/or ineffective changes made to ensure future compliance.

• Road safety critical defects or any “S” marked prohibition or prohibitions issued at MOT.

• High prohibition rate.

From the above assessment this is a case that falls squarely into the “Severe” category as an entry point for regulatory action.

Pulling everything together I have asked myself the Priority Freight question; do I trust this operator to be compliant in the future? Repeating all of the findings I have adopted and made I unequivocally answer that question in the negative. I absolutely do not trust this operator to be compliant in the future. I have then asked myself the Bryan Haulage question; is the conduct of this operator such that they ought to be put out of business? Repeating all of the findings I have adopted and made I unequivocally determine that it is proportionate to answer that question in the affirmative. This operator has been, and remains, a significant risk to other road users and they must be shut down. The operator has lost its good repute.

Repeating all of the findings that I have adopted and made I unequivocally find that it is proportionate for me to determine that the transport manager lost his good repute a long time ago and since then it has never been restored. This transport manager has driven a coach and horses through all aspects of compliance and on his watch he has significantly compromised road safety and road safety continues to be put at a significant risk.

4. Decisions

The operator is not of good repute. It is a mandatory requirement that the operator’s licence is revoked. The issue of proportionality for that was considered when I asked myself the Bryan Haulage question. The operator’s licence is revoked under section 27(1)(a) [loss of good repute] of the Act effective at 2345 hours today, 16 May 2022.

The operator is not professionally competent because (a) the transport manager’s CPC is not valid in the United Kingdom and/or because (b) the transport manager has lost his good repute. No request for a period of grace was made. It is entirely proportionate to revoke the operator’s licence because the operator is no longer professionally competent. The operator’s licence is revoked under section 27(1)(a) and (b) [no longer being professionally competent and loss of transport manager’s good repute] of the Act effective at 2345 hours today, 16 May 2022.

The operator is not of appropriate financial standing because no documents at all were received to show that the operator was and remains of appropriate financial standing. Proportionality is not relevant to this issue. The operator’s licence is revoked under section 27(1)(a) [no longer of appropriate financial standing] of the Act effective at 2345 hours today, 16 May 2022.

Repeating all of the findings that I have adopted and made, and after applying the very small amount of credit I could give to this operator, I have determined that it is entirely proportionate that I revoke the operator’s licence under my discretionary powers pursuant to sections 26(1)(a), (b), (ca), (c)(iii), (e), (f) and (h) of the Act. All orders of revocation under section 26 of the Act takes effect at 2345 hours today, 16 May 2022.

Mr Berzovan, transport manager, did not appear before me today and he sent in no documents or submissions for me to consider. He has lost his good repute as a transport manager, and it is a mandatory requirement that he is disqualified as a transport manager. Given his total lack of co-operation with the public inquiry process I have no insight as to why he acted as he did, what he is (and is not) capable of going forward and how he may change in the future. I cannot, therefore, think of any rehabilitation measure for him. I therefore disqualify him as a transport manager indefinitely from 2345 hours today, 16 May 2022. He will have to apply in the future to restore his good repute as a transport manager but from the facts of this case I do not think that any such application is likely to be looked at favorably for at least three years, therefore until 2345 hours on 15 May 2025. Of course, he is at liberty to apply sooner but given the cogent negative findings in this case it will take equally cogent evidence from Mr Berzovan to satisfy a Traffic Commissioner that he can be trusted again. How he goes about that is a matter for him. This order is therefore made under paragraphs 15 and 16 of Schedule 3 of the Act.

5. Disqualification – operator.

This is a very bad case where road safety has been put at a significant risk and where it still remains at significant risk as a result of the acts and omissions of Mr Berzovan.

The whole operator licensing system relies upon trust. The appeal case of 2006/27 Fenlon makes it clear that ‘trust is one of the foundation stones of operator licensing. Traffic, commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operator believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.’

I have considered whether disqualification is required as per the guidance in the Upper Tribunal appeal case of 2018/072 St Mickalos Company Ltd & M Timinis and 2010/29 David Finch Haulage. Road safety has been significantly compromised on a daily basis both from noncompliance with the maintenance of in scope vehicles (and records relating to maintenance) and noncompliance with the rules and regulations relating to drivers’ hours and tachographs. In addition, an unauthorised operating centre has been used for a significant length of time. As the Upper Tribunal identified in 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. That is very much a message that needs to be made clear in this case because the operator licensing system is designed to protect road safety above all else and the whole system is founded on trust. I have absolutely no trust or confidence in Mr Berzovan and a clear message needs to be sent out to this operator, and to the industry, as to what happens when road safety is put at risk and when trust is lost between the Traffic Commissioners and any operator. I repeat what was said in the appeal case of Fenlon quoted above regarding trust.

Repeating all of the findings I have adopted and made I determine that a further course of regulatory action over and above revocation of the operator’s licence is proportionate and is required.

The proportionate order is to disqualify the operator from holding or obtaining any type of operator’s licence in any traffic area for 36 months from 2345 hours today, 16 May 2022 until 2345 hours on 15 May 2025. This order is made under sections 28(1), (3) and (4) of the Act.

6. Disqualification – Mr Berzovan

I repeat everything I have said above about disqualification for the operator in relation to Mr Berzovan because Mr Berzovan was, and remains, the heart and mind of the operator and the transport operation. He has put road safety at risk on a daily basis for the reasons I have given. He has allowed drivers hours and tachograph rules and regulations to be breached in a serious way. He has operated from an unauthorised operating centre for a significant period of time. I do not, and I cannot, trust him.

Disqualification is a proportionate further course of regulatory action over and above revocation of the operator’s licence and it is a necessary course of action.

The sole director, Mr Daniel Catalin Berzovan is disqualified from holding or obtaining any type of operator’s licence in any traffic area either as a sole trader, director, partner or majority shareholder to a company that holds or obtains an operator’s licence or majority shareholder of a company that is a subsidiary company to a company that holds or obtains and operator’s licence. This disqualification is for 36 months commencing at 2345 hours today, 16 May 2022 and ending at 2345 hours at 2345 hours on 15 May 2025. This order of disqualification is made under sections 28(1), 28(3) and 28(4) of the Act.

7. Request of DVSA

This operator has no operator’s licence from 2345 hours on 16 May 2022. It was for the operator to make contingency plans before the public inquiry today. The operator was told to consider doing that in the calling in letter. It was for the operator to find out the outcome of the public inquiry today. They were able to be contacted by a caseworker from the Office of the Traffic Commissioner by telephone last week. By the same token, they were able to make a telephone call to the Office of the Traffic Commissioner today to find out about my decisions. This decision has been written before 3pm on 16 May 2022 and the relevant caseworker had it before them before that time. Therefore, if this operator operates any regulated vehicle after 2345 hours on 16 May 2022 DVSA are requested to impound that vehicle. I cannot, and will not, allow this operator to put road safety at any further risk.

Deputy Traffic Commissioner Mr M Dorrington

16 May 2022