Decision

Decision for Norberto Sanchez Donis and Geronimo Donis trading as A1 LUX (PM1102777)

Published 27 April 2021

0.1 IN THE SCOTTISH TRAFFIC AREA

1. PUBLIC INQUIRY

Public Passenger Vehicles Act 1981 (“the Act”) and Section 6 of the Transport Act 1985. Road Traffic Act 1988.

1.1 NORBERTO SANCHEZ DONIS AND GERONIMO DONIS

1.2 TRADING AS “A1 LUX” - PM1102777

1.3 And Drivers:

1.4 Alistair BURNS [REDACTED]

1.5 Brian STEELE [REDACTED]

1.6 Kenneth SHARPE [REDACTED]

BEFORE

1.7 ANTHONY SECULER, DEPUTY TRAFFIC COMMISSIONER,

HEARD VIA MICROSOFT TEAMS

ON 31st MARCH 2021

2. Background

Norberto Sanchez Donis and Geronimo Fernandez Donis, trading as A1 Lux, (“the operator”), are the holders of a Restricted Operator’s Licence as a partnership, issued on 5th August 2011.

Following a Public Inquiry before the Traffic Commissioner for Scotland on 13th November 2017, the authorisation on the licence was increased to 2 vehicles. In July 2020, DVSA Traffic Examiner, Rory Wilkinson initiated an investigation into drivers’ hours and tachograph records for the operator. Records from October 2019 to March 2020 were examined and found to be wholly unsatisfactory.

By a call-up letter dated 24th February 2021, the operator was called to attend this Public Inquiry.

3. The Public Inquiry

At the public inquiry the operator attended (virtually), through the partner Norberto Sanchez Donis, it being accepted that his partner and father, Geronimo Fenrnandez Donis, was unfit to attend and relatively inactive in the business.

TE Wilkinson attended on behalf of DVSA. The evidence contained in his detailed investigation and statement was not challenged by the operator or drivers.

I heard evidence from Mr Donis and the drivers, Burns, Steele and Sharpe.

4. Findings on the Evidence

I find a clear and flagrant breach of section 17(3)(aa) of the Act in that the operator failed to honour the undertakings signed up to when applying for the licence, namely,

That the laws relating to the driving and operation of vehicles used under the licence would be observed, and,

That the rules on drivers hours and tachographs would be observed and proper records kept.

The breaches are set out in TE Wilkinson’s statement and include:

• Tachograph units not being calibrated since 2011 and 2018,

• Vehicle units not being downloaded, in one case for 1066 days,

• 120 occasions between October 2019 and March 2020 when vehicles had been driven without a card being inserted by the driver,

• Instances of drivers’ cards being removed from the vehicle head during the course of a journey/booking,

• Mr Donis carried out 32 private hires without being the holder of a valid driver’s CPC.

The long history of some of these breaches rebuts any suggestion from Mr Donis that the shortcomings were a result of his unfortunate ill-health from August 2019. Mr Donis stated in an email to TE Wilkinson on 20th July 2020, “I myself have also misplaced my tacho card but as I was not driving during this period would show nothing anyway”. This was patently not the case, and whilst Mr Donis dismissed the 32 occasions as short journeys, I find his statement to be misleading and unacceptable.

I find as a fact that each of the drivers for the partnership drove on numerous occasions knowingly without tachograph records. In doing so they demonstrated a disregard for the legal requirements of the Licensing System and for the safety of their passengers and other road users.

Driver Alistair Burns was vague in his interview about the dates when he drove without tachograph records. He admitted driving on 3 specific dates in October 2019 and, on one of those dates, he exceeded 4 and a half hours’ driving without a break and was in charge of the vehicle when his tachograph card was removed from the vehicle unit.

Mr Burns accepted that he must have driven on other dates but was “unable to remember them”. He was no longer working for the operator or as a PSV driver.

Driver Kenneth Sharpe accepted in the face of evidence from TE Wilkinson that the vehicle unit would only show “no card” if the wrong slot was used. He could not answer how a machine malfunction of a similar nature might occur in 2 different vehicles driven by him and might occur on numerous occasions without him writing it on his daily defect report. The operator’s records showed Mr Sharpe had been allocated 27 private hire jobs between 17th January and 13th March 2020 and his tachograph card was only present on 3 occasions. He could offer no explanation as to how private hire jobs allocated to him in vehicles driven without a card could have occurred unless he drove without inserting a card.

He was still working for the operator, doing school runs and getting back to other PSV work following lockdown.

I find the suggestion from Mr Burns, and Mr Sharpe, that they put their cards in and believed the tachographs to be working correctly totally implausible. Competent, conscientious drivers make regular checks of their tachographs during a working day for driving time, rest periods, mode switch etc. and constant error messages or non-recording should be noted and result in them not driving the vehicle until repair.

Driver Brian Steele admitted that he had driven on numerous dates carrying out approximately 49 private hires without using a tachograph card. He stated in his interview that he told Mr Donis, “when I was assigned jobs I would say to him I didn’t have my tacho, he didn’t say as much but it was either I carried out the work or I wouldn’t be working”.

He stated in his evidence that he had continued driving without a tachograph card because of financial pressures. He was working as a PSV driver doing school runs and had improved his knowledge by reading up on the rules. He had attended no formal training owing to places being closed down through Covid 19. I note that he had made no attempt to access any of the online training courses available.

5. Considerations and Decision

I weigh in the balance the positive and mitigating features in respect of this operator:

• Mr Donis suffered a period of ill-health from August 2019. However, he was well enough to carry out over 32 private hires as a driver in the investigation period and there is no evidence that systems were in place prior to his illness.

• The operator has invested in new recording equipment and TE Wilkinson conceded that if the equipment had been present and in use when he visited, he would have been satisfied.

• The operator was co-operative with TE Wilkinson and whilst his misleading statement regarding his driving was unacceptable, he was contrite and open during the Public Inquiry.

Considering the “Priority Freight” (2009/225) question, I find it unlikely that this operator will, in future, operate in compliance with the operator’s licensing regime. Whilst he has invested in new recording equipment, I am not satisfied that he has the knowledge and capability to observe all the rules and keep proper records. He has presided over a lengthy period of total disregard of the drivers’ hours rules, has taken no formal action against offending drivers, two of whom he continues to engage, and has not attended or initiated formal training.

The fact that Mr Donis was one of the offending drivers sends the wrong message to the employed drivers and gives me no confidence in his ability or commitment to raise standards to an acceptable level.

With regard to the Bryan Haulage (No. 2) (2002/217) question; “is the conduct such that the operator ought to be put out of business?” the answer is firmly “yes”, albeit that this is a restricted licence where cessation of the business may not be automatic as the bulk of the income is said to be from taxi hire.

I find that the operator no longer satisfies the requirements of section 14ZB(a) in respect of good repute and weighing up the limited positive features against the serious and persistent failings I consider that revocation of the licence under section 17(3) (aa) and (d) is appropriate and proportionate.

I further find that the operator has failed to satisfy the main occupation criterion under section 13(3)(b)(ii) of the Act. The operator was called to a Public Inquiry in December 2017 regarding this matter. I have no doubt that the Traffic Commissioner would have made it abundantly clear to the operator that records needed to be maintained demonstrating that income from his private hire/taxi business exceeded his PSV income. Notwithstanding this, the operator has failed to keep such records.

In addition, the financial evidence produced fails to satisfy the financial standing requirement of section 14ZB(b). The evidence of financial standing is in the form of bank statements in an account held by Geronimo Fernandez Donis and his wife. Whilst a statutory declaration was accepted previously as evidence of standing it is clear from the Senior Traffic Commissioner’s Statutory Document No. 2 that such a declaration should be for a new licence, not for ongoing licence holders, and not for separate corporate entities which a partnership is under Scottish law. It is clear that the operator is not functioning as a partnership and Mr Donis conceded that action needed to be taken to correct the legal entity.

I revoke the Restricted Operator’s Licence held by the operator under section 17(3) (aa)(d) and (e) of the Act with effect from 15th May 2021.

I give formal recognition to the positive measures initiated by the operator in not ordering a period of disqualification from holding or obtaining a licence for the partners. Mr Donis recognised that he would benefit from taking on a professional transport manager to assist him and I consider that such an appointment is essential for any future licence to be held by Mr Donis, quite apart from his continuing failure to meet the main occupation criterion of a Restricted Licence. I would not be minded to delay implementation of the revocation until the Standard Licence application could be finalised.

Regarding the vocational licences held by the drivers:

1) Alistair Burns admitted driving without a tachograph card properly recording his duties on at least 3 occasions and accepted that he may well have driven on many more. He failed to take the required 45 minute break after 4 and a half hours of driving, recording 6 hours and 21 minutes.

I have regard to the Senior Traffic Commissioner’s Statutory Document No. 6 and Case Studies cited. His vocational entitlement is formally suspended for 9 months with effect from 00.01 on 15th May 2021.

2) Brian Steele drove on numerous occasions between October 2019 and March 2020 carrying out at least 49 private hires, knowing that he did not have the required driver’s tachograph card. Driving without a tachograph conceals evidence of driving time, necessary breaks, and rest periods and poses a risk to public safety.

I have regard to the Senior Traffic Commissioner’s Statutory Document No. 6 and Case Studies cited. His vocational entitlement is formally suspended for 12 months with effect from 00.01 on 15th May 2021.

3) Kenneth Sharpe was allocated 27 private hire jobs by the operator between 17th January 2020 and 13th March 2020. He accepts that he completed a number of these jobs and could give no satisfactory explanation for the absence of tachograph records. I find that on numerous occasions between those dates he drove without a driver’s tachograph card being present. Driving without a tachograph conceals evidence of driving time, necessary breaks, and rest periods and poses a risk to public safety.

I have regard to the Senior Traffic Commissioner’s Statutory Document No. 6 and Case Studies cited. His vocational entitlement is formally suspended for 9 months with effect from 00.01 on 15th May 2021.

Anthony Seculer,

Deputy Traffic Commissioner,

Scottish Traffic Area.

9th April 2021