Sullivan, state battle over ‘volunteer transportation’

by Chad Abraham, Aspen Daily News Staff Writer

An attorney for the Colorado Public Utilities Commission is opposing the effort by a Woody Creek man to amend a judge’s order that, in theory, prevents him from giving free or low-cost rides in Aspen.

Phil Sullivan, 75, and the utilities commission, which oversees motor-vehicle carriers like taxi and limo companies, have been battling for roughly six years about his late-night, cabbie-like practice.

Sullivan is to be sentenced Friday in Pitkin County District Court for again violating the permanent injunction handed down by a local judge in June. In March, Sullivan served nine days of a 15-day sentence in Pitkin County Jail after he was found guilty of willfully violating a court order in October 2010. The order prevents Sullivan from giving rides unless he obtains the proper insurance and state certification. He faces as much as six months behind bars for the latest offense.

But Sullivan’s attorney, Robert Couhig Jr. of New Orleans, contends his client should not be under the purview of the utilities commission because the Colorado statute governing motor-vehicle transportation exempts those providing a volunteer service.

The response by Emanuel Cocian, an assistant Colorado attorney general representing the utilities commission, says Judge Gail Nichols of Pitkin County District Court shouldn’t amend her injunction.

The statute describes “volunteer transportation” as that which is provided on a nonprofit basis by an individual, company, firm, partnership, agency or corporation under the direction, sponsorship or supervision of a people-service organization, Cocian’s filing says.

At a contempt hearing on Oct. 21, 2011, Sullivan and Couhig “had an opportunity to provide an affidavit from a charitable organization and/or a people service agency in support of his motion,” Cocian wrote. They “failed to do so.

“Defendant does not provide any information on the nonprofit under whose direction he is purportedly offering volunteer transportation.”

Couhig said Wednesday that he thinks the issue makes for an interesting legal argument. The utilities commission has not established “what is required to meet the standard for a not-for-profit,” he said, meaning Sullivan could theoretically start his own nonprofit business and drive for it voluntarily to escape the state’s rules.

“No one else has raised this issue,” Couhig said, because “I don’t know if they’ve gone after anyone the way they’ve gone after Phil.”

He also said attorneys for the state utilities commission did not tell Nichols about the potential volunteer status. It’s unclear, though, if commission officials even knew Sullivan was potentially going to use the volunteer avenue as a defense until Couhig’s motion was filed in October 2011.

“They didn’t inform the court that if you’re not in it for the money, [the commission doesn’t] have jurisdiction,” Couhig said.

Sullivan has maintained that he drives friends and others to their destinations for the camaraderie, and what money he is given goes only toward gas and vehicle maintenance.

In other news related to the case, High Mountain Taxi on Jan. 9 submitted a letter to Nichols about Sullivan’s alleged further violations of the injunction. The taxi service has long complained to the state that what Sullivan is doing is illegal and cutting into their business. The licensed drivers also say it is unfair that Sullivan does not have to incur expenses to get insurance, certification from the state and other business costs.

“We would like the court to consider the following, prior to sentencing Mr. Philip Sullivan,” says the letter, which was signed by 16 High Mountain Taxi drivers. “During the period from Oct. 21, 2011 through Jan. 9, 2012, we have all individually observed Mr. Sullivan at least once operating his white Kia as a taxicab in the downtown Aspen area. Some of us have seen him operating almost nightly.”

For his part, Sullivan said Wednesday that potentially operating as a nonprofit business was an alternative offered by his attorney, but declined further comment.

Asked about the High Mountain Taxi letter, he said the business’ drivers oppose what he is doing.

“I’m hoping, somehow or other, that my actions will end the idea that you have to have a monopoly to serve the people in Aspen,” Sullivan said. “The state of Colorado has given them a monopoly, and the state wants to protect them.”