West Virginia is sued for road-blocking new moving companies

By Kyla Asbury | Jun 15, 2016

CHARLESTON – A Virginia man is suing West Virginia officials after he says it is imposing unconstitutional restrictions on entry into the moving business.

Ingrid Ferrell, in her official capacity as executive secretary of the West Virginia Public Service Commission; Michael A. Albert, Brooks F. McCabe and Kara Williams, in their official capacities as commissioners of the West Virginia Public Service Commission; and Attorney General Patrick Morrisey were all named as defendants in the suit.

Arthur Vogt and his company, Vogt Ventures, which is doing business as Lloyd’s Transfer & Storage, claim Lloyd’s is based on Berryville, Va., which is about ten miles from the West Virginia border, according to a complaint filed May 19 in the U.S. District Court for the Southern District of West Virginia.

Vogt and his company have lawfully served clients in the mid-Atlantic region with a range of moving services, including interstate moves to and from West Virginia and they want to provide local, intrastate moving services within West Virginia, but are prohibited without a Certificate of Convenience and Necessity, according to the suit.

Vogt claims to obtain a certificate, applicants must submit to a procedure that allows protestors, including established moving companies, to effectively “veto” the issuance of certificates to new moving companies.

“Specifically, established moving companies may intervene in the process, triggering a hearing,” the complaint states. “ Under the challenged laws, and West Virginia Supreme Court precedent, the commission shall deny a certificate where it finds that additional competition would take business away from the incumbent moving companies.”

This protest and intervention procedure unduly burdens interstate commerce and bears no rational relationship to a legitimate governmental interest, according to the suit.

Vogt claims the commission has not granted a single certificate in more than 15 years to any applicant that has been protested by an established moving company and it has been more than 30 years since the commission granted a certificate to any out-of-state moving company.

The only certificate granted in 15 years out of more than a dozen sought was granted to a West Virginia-headquartered moving company that drew no protests from any established moving company, according to the suit.

Larry Salzman of Pacific Legal Foundation, one of Vogt’s attorneys, said this “Competitor’s Veto” law is a violation of the U.S. Constitution.

“Striking down this law will improve choices for consumers,” Salzman said. “Pacific Legal Foundation has successfully fought these laws in five other states. They should be struck down in West Virginia, as well.”

Salzman said after fighting the laws in Pennsylvania, Kentucky, Missouri, Oregon and Montana, those states’ laws were either struck down or repealed.

“West Virginia makes it illegal to run a moving business if existing moving companies object,” Salzman said.

Salzman said the laws harm entrepreneurs and consumers alike.

“This law has nothing to do with protecting public health and safety, but everything to do with protecting established businesses from honest competition,” he said. “That’s not only unfair, it violates the U.S. Constitution.”

When Vogt applied for a Certificate of Necessity, his application was challenged by the largest moving company in West Virginia. He spent a full year, and $10,000 in legal fees, responding to the challenge.

Even though the protesting firm does not have offices within 100 miles of Vogt’s, West Virginia bureaucrats still found no “need” for Vogt’s competition in the state, according to a PLF press release.

“People are flabbergasted when we tell them we cannot do a move within the state of West Virginia,” Vogt said in the press release. “I can move you to Brazil, I can move you to Wisconsin. But for no good reason, I’m not allowed to do a move in West Virginia, 11 miles from my office.”

Vogt said he was fighting the battle in memory of his wife, who passed away when they were trying, unsuccessfully, to get the West Virginia license.

Vogt is seeking an entry of judgment declaring the certificate program unconstitutional. Along with Salzman, he is also being represented by Luke Lafferre of DInsmore & Shohl; and Anastasia P. Boden of Pacific Legal Foundation.

The case is assigned to District Judge John T. Copenhaver Jr.

U.S. District Court for the Southern District of West Virginia case number: 2:16-cv-04492

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