BILL NUMBER: AB 612 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 19, 2014
AMENDED IN SENATE JULY 2, 2014
AMENDED IN SENATE JUNE 19, 2014
AMENDED IN SENATE JUNE 10, 2014
AMENDED IN SENATE MAY 29, 2014
AMENDED IN ASSEMBLY MARCH 19, 2013
INTRODUCED BY Assembly Member Nazarian
(Coauthor: Assembly Member Hernández)
FEBRUARY 20, 2013
An act to amend Section 5374 of the Public Utilities Code,
and to amend Section 1808.1 of the Vehicle Code, relating to
transportation.
LEGISLATIVE COUNSEL'S DIGEST
AB 612, as amended, Nazarian. Charter-party carriers of
passengers: permit requirements: drivers.
The
(1) The Passenger Charter-party
Carriers' Act, with certain exceptions, prohibits a charter-party
carrier of passengers from engaging in transportation services
subject to regulation by the Public Utilities Commission without
obtaining a specified certificate or permit, as appropriate, from the
commission, subject to various requirements. The act defines a
charter-party carrier of passengers as every person engaged in the
transportation of persons by motor vehicle for compensation, whether
in common or contract carriage, over any public highway in this state
and includes any person, corporation, or other entity engaged in the
provision of a hired driver service when a rented motor vehicle is
being operated by a hired driver.
This bill would prohibit the commission from issuing or renewing a
permit or certificate to a charter-party carrier of passengers
unless the applicant, in addition to existing requirements,
participates in the Department of Motor Vehicles Employer
Pull Notice Program pull-notice system and
provides for mandatory Department of Justice background checks of
every driver , except as specified, who is either employed
by or under contract to the applicant, as specified
applicant .
The bill would require a driver of a charter-party carrier to
submit to the Department of Justice fingerprint images and related
information for the purpose of obtaining information as to the
existence and content of state convictions and state arrests, as
specified. The bill would require the department to charge a fee
sufficient to cover the cost of processing the request described in
these provisions.
The bill would provide that its provisions apply to all
charter-party carriers regardless of class or category created by the
commission.
The bill would require that drivers hired or initially retained on
or after January 1, 2015, be subject to background checks and
mandatory drug and alcohol testing prior to employment or retention
and that drivers hired or initially retained before January 1, 2015,
complete a background check and drug and alcohol test before January
1, 2016.
(2) Because a violation of these provisions would be a crime, the
bill would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature
to give direction to the Public Utilities Commission, as it
establishes rules and regulations for all charter-party carriers, to
investigate and implement proper identifying decals and trade dress
for charter-party carriers in order to assist law enforcement in
enforcing those regulations and the law established under the
Passenger Charter-party Carriers' Act.
SEC. 2. SECTION 1. Section 5374 of
the Public Utilities Code is amended to read:
5374. (a) (1) Before a permit or certificate is issued or
renewed, the commission shall require the applicant to establish
reasonable fitness and financial responsibility to initiate and
conduct or continue to conduct the proposed or existing
transportation services. The commission shall not issue or renew a
permit or certificate pursuant to this chapter unless the applicant
meets all of the following requirements:
(A) It is financially and organizationally capable of conducting
an operation that complies with the rules and regulations of the
Department of the California Highway Patrol governing highway safety.
(B) It is committed to observing the hours of service regulations
of state and, where applicable, federal law, for all persons, whether
employees or subcarriers, operating vehicles in transportation for
compensation under the certificate.
(C) It has a preventive maintenance program in effect for its
vehicles used in transportation for compensation that conforms to
regulations of the Department of the California Highway Patrol in
Title 13 of the California Code of Regulations.
(D) It participates in the Department of Motor Vehicle's
Employer Pull Notice Program pull-notice system
pursuant to Section 1808.1 of the Vehicle Code to regularly
check the driving records of all persons, whether employees or
subcarriers, operating vehicles used in transportation for
compensation.
(E) It has a safety education and training program in effect for
all employees or subcarriers operating vehicles used in
transportation for compensation.
(F) It will maintain its vehicles used in transportation for
compensation in a safe operating condition and in compliance with the
Vehicle Code and with regulations contained in Title 13 of the
California Code of Regulations relative to motor vehicle safety.
(G) It has filed with the commission the certificate of workers'
compensation insurance coverage or statement required by Section
5378.1.
(H) It has provided the commission an address of an office or
terminal where documents supporting the factual matters specified in
the showing required by this subdivision may be inspected by the
commission and the Department of the California Highway Patrol.
(I) It provides for a mandatory controlled substance and alcohol
testing certification program as adopted by the commission pursuant
to Section 1032.1.
(J) Subparagraphs (C), (F), and (H) do not apply to a
charter-party carrier of passengers engaged in the provision of a
hired driver service when a rented motor vehicle is being operated by
the hired driver.
(K) It provides for mandatory Department of Justice criminal
background checks to check the criminal history of any driver who is
either under contract to, or employed by, the applicant to operate a
vehicle used in transportation for compensation pursuant to the
following:
(i) A driver, as defined in Section 305 of the Vehicle Code, of a
charter-party carrier, as defined in Section 5360, shall submit to
the Department of Justice fingerprint images and related information
required by the department for the purpose of obtaining information
as to the existence and content of state convictions and state
arrests and also information as to the existence and content of a
record of a state arrest for which the department establishes that
the person is free on bail or on his or her recognizance pending
trial or appeal.
(ii) The department shall provide a state response to the
charter-party carrier pursuant to paragraph (1) of subdivision (p) of
Section 11105 of the Penal Code.
(iii) The charter-party carrier shall request from the Department
of Justice subsequent notification service, as provided pursuant to
Section 11105.2 of the Penal Code, for persons described in clause
(i).
(iv) The department shall charge a fee sufficient to cover the
cost of processing the request described in this subparagraph.
(v) A driver shall be denied employment or have his or her
contract voided if he or she is required by any law to register as a
sex offender or has been convicted of any felony ,
within a seven-year period from the date of his or her application,
involving any type of sexual offense; the manufacture,
possession for sale, transportation, or distribution of narcotics,
controlled substances, or addictive or dangerous drugs; force,
violence, threat, or intimidation against persons; kidnapping;
forgery, fraud, larceny, extortion, burglary, robbery, or theft;
credit card fraud; possession of a firearm or dangerous weapon;
resisting or obstructing a peace officer, public officer, or
emergency medical technician; or use of another vehicle for hire in
the commission of a felony. Equivalent out-of-state violations shall
be considered.
(L) Subparagraphs (D), (I), and (K) apply to all charter-party
carriers regardless of class or category created by the commission.
(M) Subparagraph (K) shall not apply with respect to a driver who
is required to undergo a criminal background check pursuant to
Section 33192 of the Education Code, while the driver remains
employed by the employer for whom the criminal background check was
performed.
(2) Drivers hired or initially retained by a charter-party carrier
on or after January 1, 2015, shall be subject to background checks
and mandatory drug and alcohol testing prior to employment or
retention. Drivers hired or initially retained before January 1,
2015, shall complete a background check and drug and alcohol test
before January 1, 2016.
(2)
(3) With respect to subparagraphs (B) and (F) of
paragraph (1), the commission may base a finding on a certification
by the commission that an applicant has filed, with the commission, a
sworn declaration of ability to comply and intent to comply.
(3)
(4) The commission may require, as a precondition to
the issuance of a permit or certificate, the procurement of a
performance bond sufficient to facilitate the collection of fines,
penalties, and restitution related to enforcement actions that can be
taken against the applicant.
(b) In addition to the requirements in subdivision (a),
charter-party carriers shall meet all other state and, where
applicable, federal regulations as prescribed.
(c) The commission may delegate to its executive director or that
executive director's designee the authority to issue, renew, or
authorize the transfer of, charter-party carrier permits or
certificates and to make the findings specified in subdivision (a)
that are necessary to that delegated authority.
SEC. 2. Section 1808.1 of the Vehicle
Code is amended to read:
1808.1. (a) The prospective employer of a driver who drives a
vehicle specified in subdivision (k) shall obtain a report showing
the driver's current public record as recorded by the department. For
purposes of this subdivision, a report is current if it was issued
less than 30 days prior to the date the employer employs the driver.
The report shall be reviewed, signed, and dated by the employer and
maintained at the employer's place of business until receipt of the
pull-notice system report pursuant to subdivisions (b) and (c). These
reports shall be presented upon request to an authorized
representative of the Department of the California Highway Patrol
during regular business hours.
(b) The employer of a driver who drives a vehicle specified in
subdivision (k) shall participate in a pull-notice system, which is a
process for the purpose of providing the employer with a report
showing the driver's current public record as recorded by the
department, and any subsequent convictions, failures to appear,
accidents, driver's license suspensions, driver's license
revocations, or any other actions taken against the driving privilege
or certificate, added to the driver's record while the employer's
notification request remains valid and uncanceled. As used in this
section, participation in the pull-notice system means obtaining a
requester code and enrolling all employed drivers who drive a vehicle
specified in subdivision (k) under that requester code.
(c) The employer of a driver of a vehicle specified in subdivision
(k) shall, additionally, obtain a periodic report from the
department at least every 12 months. The employer shall verify that
each employee's driver's license has not been suspended or revoked,
the employee's traffic violation point count, and whether the
employee has been convicted of a violation of Section 23152 or 23153.
The report shall be signed and dated by the employer and maintained
at the employer's principal place of business. The report shall be
presented upon demand to an authorized representative of the
Department of the California Highway Patrol during regular business
hours.
(d) Upon the termination of a driver's employment, the employer
shall notify the department to discontinue the driver's enrollment in
the pull-notice system.
(e) For the purposes of the pull-notice system and periodic report
process required by subdivisions (b) and (c), an owner, other than
an owner-operator as defined in Section 34624, and an employer who
drives a vehicle described in subdivision (k) shall be enrolled as if
he or she were an employee. A family member and a volunteer driver
who drives a vehicle described in subdivision (k) shall also be
enrolled as if he or she were an employee.
(f) An employer who, after receiving a driving record pursuant to
this section, employs or continues to employ as a driver a person
against whom a disqualifying action has been taken regarding his or
her driving privilege or required driver's certificate, is guilty of
a public offense, and upon conviction thereof, shall be punished by
confinement in a county jail for not more than six months, by a fine
of not more than one thousand dollars ($1,000), or by both that
confinement and fine.
(g) As part of its inspection of bus maintenance facilities and
terminals required at least once every 13 months pursuant to
subdivision (c) of Section 34501, the Department of the California
Highway Patrol shall determine whether each transit operator, as
defined in Section 99210 of the Public Utilities Code, is then in
compliance with this section and Section 12804.6, and shall certify
each operator found to be in compliance. Funds shall not be allocated
pursuant to Chapter 4 (commencing with Section 99200) of Part 11 of
Division 10 of the Public Utilities Code to a transit operator that
the Department of the California Highway Patrol has not certified
pursuant to this section.
(h) (1) A request to participate in the pull-notice system
established by this section shall be accompanied by a fee determined
by the department to be sufficient to defray the entire actual cost
to the department for the notification service. For the receipt of
subsequent reports, the employer shall also be charged a fee
established by the department pursuant to Section 1811. An employer
who qualifies pursuant to Section 1812 shall be exempt from any fee
required pursuant to this section. Failure to pay the fee shall
result in automatic cancellation of the employer's participation in
the notification services.
(2) A regularly organized fire department, having official
recognition of the city, county, city and county, or district in
which the department is located, shall participate in the pull-notice
program and shall not be subject to the fee established pursuant to
this subdivision.
(3) The Board of Pilot Commissioners for Monterey Bay and the Bays
of San Francisco, San Pablo, and Suisun, and its port agent shall
participate in the pull-notice system established by this section,
subject to Section 1178.5 of the Harbors and Navigation Code, and
shall not be subject to the fees established pursuant to this
subdivision.
(i) The department, as soon as feasible, may establish an
automatic procedure to provide the periodic reports to an employer by
mail or via an electronic delivery method, as required by
subdivision (c), on a regular basis without the need for individual
requests.
(j) (1) The employer of a driver who is employed as a casual
driver is not required to enter that driver's name in the pull-notice
system, as otherwise required by subdivision (a). However, the
employer of a casual driver shall be in possession of a report of the
driver's current public record as recorded by the department, prior
to allowing a casual driver to drive a vehicle specified in
subdivision (k). A report is current if it was issued less than six
months prior to the date the employer employs the driver.
(2) For the purposes of this subdivision, a driver is employed as
a casual driver when the employer has employed the driver less than
30 days during the preceding six months. "Casual driver" does not
include a driver who operates a vehicle that requires a passenger
transportation endorsement.
(k) This section applies to a vehicle for the operation of which
the driver is required to have a class A or class B driver's license,
a class C license with a hazardous materials endorsement, a class C
license issued pursuant to Section 12814.7, or a certificate issued
pursuant to Section 12517, 12519, 12520, 12523, 12523.5, or 12527,
or a passenger vehicle having a seating capacity
of not more than 10 persons, including the driver, operated for
compensation by a charter-party carrier of passengers or
passenger stage corporation pursuant to a certificate of
public convenience and necessity or a permit issued by the Public
Utilities Commission , or a vehicle operated by a charter-party
carrier of passengers whose permit or certificate, including any
renewal of that permit or certificate, is subject to the requirements
of Section 5374 of the Public Utilities Code .
( l ) This (1)
For purposes of this section, the term "employer" or
"prospective employer" includes a charter-party carrier of
passengers whose permit or certificate, including any renewal of that
permit or certificate, is subject to the requirements of Section
5374 of the Public Utilities Code.
(2) This section shall not be
construed to change the definition of "employer," "employee," or
"independent contractor" for any other purpose.
(m) A motor carrier who contracts with a person to drive a vehicle
described in subdivision (k) that is owned by, or leased to, that
motor carrier, shall be subject to subdivisions (a), (b), (c), (d),
(f), (j), (k), and ( l ) and the employer obligations in
those subdivisions.
(n) Reports issued pursuant to this section, but only those for a
driver of a taxicab engaged in transportation services as described
in subdivision (a) of Section 53075.5 of the Government Code, shall
be presented upon request, during regular business hours, to an
authorized representative of the administrative agency responsible
for issuing permits to taxicab transportation services pursuant to
Section 53075.5 of the Government Code.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.