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 regular worldwide items car operator’s licence, reference OF2035783 authorising 7 autos and 7 trailers with, at present, 2 autos in possession. The sole director is Mr Daniel Berzovan who can be the desired transport supervisor.
As a results of antagonistic reviews acquired from the Driver and Vehicle Standards Agency (“DVSA”) a “Propose to Revoke Letter” was despatched to the operator. The operator requested a public inquiry which was listed, earlier than myself, to be held on 16 May 2022 on the Office of the Traffic Commissioner in Cambridge with a begin time of 1000 hours. Both the operator and transport supervisor have been known as to that listening to.
In the week earlier than the general public inquiry the caseworker telephoned the operator and spoke to Mr Berzovan. He confirmed that he was conscious of the listening to and that he would search to give up the operator’s licence.
I waited till 1045 hours right this moment earlier than beginning the general public inquiry. No one attended for the operator.
In attendance, through video hyperlink, for DVSA have been Vehicle Examiner Lockwood and Traffic Examiner Hawkins.
I defined why I used to be happy that the operator had been correctly notified of the listening to right this moment; the decision up letter had been despatched to the final recognized tackle and the operator had confirmed final week on the phone that they have been conscious of the listening to. There was no software earlier than me to adjourn the listening to. There was no persuasive motive to adjourn by myself volition. There was adequate proof earlier than me to achieve a good resolution within the absence of the operator and within the absence of the transport supervisor.
3. Findings and causes
Before me was a public inquiry bundle paginated to web page 107. In addition, was additional proof from Vehicle Examiner Lockwood regarding prohibition notices issued to the operator’s autos and trailers (one web page) and an additional web page that was a screenshot confirming that car AY11ALO was out of check with the check expiring on 01 June 2021 however the car was not faraway from the operator’s licence till 29 November 2021. That further proof was allowed into the proceedings as there was no prejudice to the operator given the operator would have already got been conscious of the subject material from the prohibition notices that have been issued and the DVSA investigation findings.
I heard in proof from each Vehicle Examiner Lockwood and Traffic Examiner Hawkins.
From the entire proof that was earlier than me I made my findings of reality after making use of the civil burden of proof (the steadiness of chances) to the proof that I thought of to be related to the subject material at hand.
The operator failed to supply any paperwork/submissions in response to the decision up letter.
The operator isn’t of applicable monetary standing as a result of no paperwork to point out applicable monetary standing have been submitted.
The report (see pages 48 onwards of the bundle) from Traffic Examiner Hawkins is credible, cogent and persuasive. I’ve accepted his report as such.
In addition, Traffic Examiner Hawkins confirmed in oral proof that on the time of his investigation he thought of that this operator and its transport supervisor had put street security in danger. He additional confirmed that he nonetheless thought of that street security was being put in danger by this operator as a result of (a) there had been no response from the operator to the report the Traffic Examiner had produced (and a response was required inside 14 days, see web page 59) and (b) there had been the manufacturing of no proof earlier than this public inquiry for the Traffic Examiner to see and assess to point out compliance/enhancements made. Traffic Examiner Hawkins additional confirmed that in his 5 years as a Traffic Examiner he had by no means scored an operator as excessive as this operator had been scored, such was the extent of noncompliance that had been recognized.
I accepted the oral proof of Traffic Examiner Hawkins as being credible, cogent and persuasive.
I discover all of the allegations made by Traffic Examiner Hawkins to be confirmed. Those confirmed allegations are repeated in full and I undertake them as my very own findings for the needs of this resolution.
The report (see pages 60 onwards within the bundle) from Vehicle Examiner Lockwood is credible, cogent and persuasive. I’ve accepted it as such.
In addition, Vehicle Examiner Lockwood gave oral proof and he confirmed that on the time of his investigation he thought of this operator and transport supervisor had put street security in danger. He additional confirmed, with causes, why he nonetheless thought of this operator and transport supervisor to be placing street security in danger.
I accepted the oral proof of Vehicle Examiner Lockwood as being credible, cogent and persuasive.
I discover that the entire allegations made by Vehicle Examiner Lockwood are confirmed. Those confirmed allegations are repeated in full, and I undertake them as my very own findings for the aim of this resolution.
Road security has been put at important threat by this operator and transport supervisor and it continues to be put at important threat; such is my discovering from the proof earlier than me. No classes have been discovered, certainly, regardless of the intervention of DVSA the intense stage of noncompliance has continued; for instance, the Traffic Examiner investigation befell in November 2021 however on 28 January 2022 car PO13WLP was stopped and EU drivers hours offences have been discovered that resulted in a hard and fast penalty being issued on the roadside which the operator then didn’t notify to the Traffic Commissioner.
From the proof earlier than me, and the findings I’ve adopted/produced from that proof there was no, or no efficient, administration management by the only director Mr Daniel Berzovan.
From the proof earlier than me, and the findings I’ve adopted/produced from that proof there was no, or no efficient, administration of the transport enterprise by the transport supervisor.
There was no proof earlier than me to point out any enhancements in both the upkeep of the autos or in drivers’ hours and tachograph guidelines and rules compliance.
There had been many prohibitions issued with three “S” marked prohibitions. I discover that the “S” marking does denote a major failure on roadworthiness compliance. The prohibitions exhibit clearly that autos and trailers weren’t being stored in a match and serviceable situation by this operator.
The operator was not utilizing the authorised working centre which is an offence for every and on daily basis that an unauthorized working centre was used beneath part 7 of the Act. Here I discover that many offences have been dedicated with the licensed working centre solely getting used after the DVSA encountered the operator on 08 October 2021. No operator can plead ignorance to solely being allowed to make use of a certified working centre by need of the notes connected to all working licences, the truth that Statutory Document quantity 4 issued by the Senior Traffic Commissioner is a doc that has been within the public area for over a decade (and the Upper Tribunal confirmed in enchantment 2012/030 MGM Haulage and Recycling Ltd that operators are deemed to know the recommendation and steering that’s within the public area) and offers with working centres and by the truth that the only director of this operator can be the transport supervisor.
There was no proof earlier than me to point out that the transport supervisor’s CPC was legitimate within the United Kingdom. It was granted in Romania on 02 November 2019. Since 01 January 2021, any European Citizen should have “Settled Status” beneath the EU Settlement Scheme, or a piece visa to have the ability to work on this nation. The corresponding laws regarding transport managers confirms {that a} transport supervisor should have a CPC certificates issued within the nation that they usually reside in for it to be legitimate. “Normally” in that sense, means for not less than 185 days each year. Here (regardless of the unpaginated letter of 11 April 2022 at first of the bundle to Mr Berzovan) the transport supervisor had supplied no proof to point out that (a) he usually lived within the United Kingdom and (b) he had been granted Settled Status that allowed him to work within the United Kingdom (or had been granted a piece visa if relevant).
I formally discover that the CPC of Mr Berzovan isn’t legitimate within the United Kingdom. As a outcome, this operator isn’t professionally competent.
The situations on the operator’s licence have been breached by the operator’s failure to tell the Traffic Commissioner inside 28 days of an occasion that will have an effect on the nice reputation/skilled competence/applicable monetary standing of the operator. There have been many such occasions from the DVSA proof earlier than me and from the dearth of any monetary standing paperwork earlier than me.
The undertakings on the operator’s licence had been breached for a very long time and there was no proof (in response to the decision up letter) earlier than me to point out that they have been not being breached.
This is a kind of extraordinarily uncommon circumstances the place there are just about no positives that I can consider for this operator for which credit score could be given aside from, I suppose, that the director really replied to Vehicle Examiner Lockwood’s MIVR report albeit not in a approach that was considered passable.
Giving very restricted credit score to that one partial optimistic when balanced towards the numerous weight I connect to the entire negatives on this case (not least the continuing threat to street security) I discover that the negatives outweigh the positives.
I’ve then had regard to Statutory Document quantity 10 issued by the Senior Traffic Commissioner and Annex 4 therein. From the entire findings I’ve adopted and made the next are the negatives and positives that I’ve recognized in Annex 4:
Positives: Above common first-time cross price at MOT
Negatives:
-
Deliberate/reckless act(s) by operator/driver resulting in street security threat or unfair industrial benefit.
-
Substantial variety of prohibitions
-
Ineffective administration management and applicable methods and procedures.
-
Ineffective evaluation procedures in place to detect falsification, drivers’ hours (EU and GB) and/or WTD infringements.
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Ineffective driver/upkeep workers coaching with applicable monitoring and self-discipline e.g., no coaching on the subject of DDRS
Insufficient and/or ineffective adjustments made to make sure future compliance.
From the above evaluation it is a case that falls squarely into the “Severe” class as an entry level for regulatory motion.
Pulling all the pieces collectively I’ve requested myself the Priority Freight query; do I belief this operator to be compliant sooner or later? Repeating the entire findings I’ve adopted and made I unequivocally reply that query within the destructive. I completely don’t belief this operator to be compliant sooner or later. I’ve then requested myself the Bryan Haulage query; is the conduct of this operator such that they must be put out of enterprise? Repeating the entire findings I’ve adopted and made I unequivocally decide that it’s proportionate to reply that query within the affirmative. This operator has been, and stays, a major threat to different street customers and they have to be shut down. The operator has misplaced its good reputation.
Repeating the entire findings that I’ve adopted and made I unequivocally discover that it’s proportionate for me to find out that the transport supervisor misplaced his good reputation a very long time in the past and since then it has by no means been restored. This transport supervisor has pushed a coach and horses via all points of compliance and on his watch he has considerably compromised street security and street security continues to be put at a major threat.
4. Decisions
The operator isn’t of excellent reputation. It is a compulsory requirement that the operator’s licence is revoked. The problem of proportionality for that was thought of after I requested myself the Bryan Haulage query. The operator’s licence is revoked beneath part 27(1)(a) [loss of good repute] of the Act efficient at 2345 hours right this moment, 16 May 2022.
The operator isn’t professionally competent as a result of (a) the transport supervisor’s CPC isn’t legitimate within the United Kingdom and/or as a result of (b) the transport supervisor has misplaced his good reputation. No request for a interval of grace was made. It is fully proportionate to revoke the operator’s licence as a result of the operator is not professionally competent. The operator’s licence is revoked beneath part 27(1)(a) and (b) [no longer being professionally competent and loss of transport manager’s good repute] of the Act efficient at 2345 hours right this moment, 16 May 2022.
The operator isn’t of applicable monetary standing as a result of no paperwork in any respect have been acquired to point out that the operator was and stays of applicable monetary standing. Proportionality isn’t related to this problem. The operator’s licence is revoked beneath part 27(1)(a) [no longer of appropriate financial standing] of the Act efficient at 2345 hours right this moment, 16 May 2022.
Repeating the entire findings that I’ve adopted and made, and after making use of the very small quantity of credit score I might give to this operator, I’ve decided that it’s fully proportionate that I revoke the operator’s licence beneath my discretionary powers pursuant to sections 26(1)(a), (b), (ca), (c)(iii), (e), (f) and (h) of the Act. All orders of revocation beneath part 26 of the Act takes impact at 2345 hours right this moment, 16 May 2022.
Mr Berzovan, transport supervisor, didn’t seem earlier than me right this moment and he despatched in no paperwork or submissions for me to contemplate. He has misplaced his good reputation as a transport supervisor, and it’s a necessary requirement that he’s disqualified as a transport supervisor. Given his complete lack of co-operation with the general public inquiry course of I’ve no perception as to why he acted as he did, what he’s (and isn’t) able to going ahead and how he might change sooner or later. I can’t, subsequently, consider any rehabilitation measure for him. I subsequently disqualify him as a transport supervisor indefinitely from 2345 hours right this moment, 16 May 2022. He must apply sooner or later to revive his good reputation as a transport supervisor however from the details of this case I don’t assume that any such software is more likely to be checked out favorably for not less than three years, subsequently till 2345 hours on 15 May 2025. Of course, he’s at liberty to use sooner however given the cogent destructive findings on this case it would take equally cogent proof from Mr Berzovan to fulfill a Traffic Commissioner that he could be trusted once more. How he goes about that may be a matter for him. This order is subsequently made beneath paragraphs 15 and 16 of Schedule 3 of the Act.
5. Disqualification – operator.
This is a really unhealthy case the place street security has been put at a major threat and the place it nonetheless stays at important threat because of the acts and omissions of Mr Berzovan.
The complete operator licensing system depends upon belief. The enchantment 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’ve thought of whether or not disqualification is required as per the steering within the Upper Tribunal enchantment case of 2018/072 St Mickalos Company Ltd & M Timinis and 2010/29 David Finch Haulage. Road security has been considerably compromised every day each from noncompliance with the upkeep of in scope autos (and information referring to upkeep) and noncompliance with the principles and rules referring to drivers’ hours and tachographs. In addition, an unauthorised working centre has been used for a major size 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 may be very a lot a message that must be made clear on this case as a result of the operator licensing system is designed to guard street security above all else and the entire system is based on belief. I’ve completely no belief or confidence in Mr Berzovan and a transparent message must be despatched out to this operator, and to the business, as to what occurs when street security is put in danger and when belief is misplaced between the Traffic Commissioners and any operator. I repeat what was mentioned within the enchantment case of Fenlon quoted above concerning belief.
Repeating the entire findings I’ve adopted and made I decide {that a} additional course of regulatory motion 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 acquiring any sort of operator’s licence in any visitors space for 36 months from 2345 hours right this moment, 16 May 2022 till 2345 hours on 15 May 2025. This order is made beneath sections 28(1), (3) and (4) of the Act.
6. Disqualification – Mr Berzovan
I repeat all the pieces I’ve mentioned above about disqualification for the operator in relation to Mr Berzovan as a result of Mr Berzovan was, and stays, the guts and thoughts of the operator and the transport operation. He has put street security in danger every day for the explanations I’ve given. He has allowed drivers hours and tachograph guidelines and rules to be breached in a critical approach. He has operated from an unauthorised working centre for a major time frame. I don’t, and I can’t, belief him.
Disqualification is a proportionate additional course of regulatory motion over and above revocation of the operator’s licence and it’s a essential plan of action.
The sole director, Mr Daniel Catalin Berzovan is disqualified from holding or acquiring any sort of operator’s licence in any visitors space both as a sole dealer, director, accomplice or majority shareholder to an organization that holds or obtains an operator’s licence or majority shareholder of an organization that may be a subsidiary firm to an organization that holds or obtains and operator’s licence. This disqualification is for 36 months commencing at 2345 hours right this moment, 16 May 2022 and ending at 2345 hours at 2345 hours on 15 May 2025. This order of disqualification is made beneath 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 earlier than the general public inquiry right this moment. The operator was informed to contemplate doing that within the calling in letter. It was for the operator to search out out the result of the general public inquiry right this moment. They have been capable of be contacted by a caseworker from the Office of the Traffic Commissioner by phone final week. By the identical token, they have been capable of make a phone name to the Office of the Traffic Commissioner right this moment to search out out about my selections. This resolution has been written earlier than 3pm on 16 May 2022 and the related caseworker had it earlier than them earlier than that point. Therefore, if this operator operates any regulated car after 2345 hours on 16 May 2022 DVSA are requested to impound that car. I can’t, and won’t, enable this operator to place street security at any additional threat.
Deputy Traffic Commissioner Mr M Dorrington
16 May 2022
Decision for DCB TRANSPORT LIMITED and TRANSPORT MANAGER DANIEL BERZOVAN & More Latest News Update
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