Bill Text: CA AB2118 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Household goods carriers.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2012-09-25 - Chaptered by Secretary of State - Chapter 544, Statutes of 2012. [AB2118 Detail]

Download: California-2011-AB2118-Amended.html

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BILL NUMBER: AB 2118	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 12, 2012
	AMENDED IN ASSEMBLY  MAY 1, 2012

INTRODUCED BY   Assembly Member Butler

                        FEBRUARY 23, 2012

   An act to amend Sections 5109, 5133, 5311,  5314.5, 5315,
 and 5322 of, and to add Sections  5110.7, 5139.1, 
5144  ,  and 5314.7 to, the Public Utilities Code, relating
to household goods carriers.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2118, as amended, Butler. Household goods carriers.
   (1) Under existing law, the Public Utilities Commission has
regulatory authority over public utilities, including transportation
companies. Under existing law, the Household Goods Carriers Act,
household goods carriers, as defined, are subject to the jurisdiction
and control of the commission. The act prohibits a household goods
carrier from engaging, or attempting to engage, in the business of
the transportation of used household goods and personal effects, by
motor vehicle over any public highway in the state, including
advertising, soliciting, offering, or entering into an agreement,
without a permit issued by the commission authorizing transportation
entirely within the state, or a valid operating authority issued by
the Federal Motor Carrier Safety Administration, for interstate
transportation. The act declares that it is not to be construed as a
regulation of interstate or foreign commerce, except as permitted
under the United States Constitution and the acts of Congress.
   This bill would expand the definition of a household goods carrier
to include a household goods carrier that engages in the licensed or
unlicensed transportation for compensation or hire as a business by
means of a motor vehicle or motor vehicles being used in the
transportation of used household goods and personal effects over any
public highway in this state. The bill would additionally prohibit a
household goods carrier from arranging  , by any means or media,
 as a broker, as defined, for the transportation of used
household goods and personal effects.  The bill would require the
commission to establish rules permitting electronic transactions, as
specified.  The bill would require a household goods carrier
 with an Internet Web site  to add a prominent link
to  that   the carrier's Internet Web  site
that directs consumers to an Internet Web site hosted by the
commission that promotes consumer rights and protection.
   (2) Existing law requires telephone companies and related
entities, as specified, upon demand and the order of a magistrate, to
provide the commission, or an authorized official of the commission,
access to the name and address of the subscriber to a telephone
number being used by an unlicensed household goods carrier. Existing
law prescribes the circumstances under which telephone corporations
may release information regarding residential subscribers without
their written consent.
   This bill would require telephone companies, as prescribed, to
provide this access to the commission as specified above, without the
written consent of the subscriber.
   (3) Under the act, every household goods carrier and every
officer, director, agent, or employee of any household goods carrier
who violates or who fails to comply with, or who procures, aids, or
abets any violation by any household goods carrier of the act, or who
fails to obey, observe, or comply with any order, decision, rule,
regulation, direction, demand, or requirement of the commission, or
of any operating permit issued to any household goods carrier, or who
procures, aids, or abets any household goods carrier in its failure
to obey, observe, or comply with any such order, decision, rule,
regulation, direction, demand, requirement, or operating permit, is
guilty of a misdemeanor, and if the violation is not willful, is
punishable by a  fine of not more than $1,000 or by
imprisonment in the county jail, as prescribed, or both.
   This bill would provide that the fine for this misdemeanor is
instead not more than $2,500.  The bill would also provide that a
fine shall be not less than $1,000 for a violation involving
operating or holding one's self as a household goods Carrier without
a permit.
    This bill would also provide that a household goods
carrier that falsifies licensure, membership in an association, or
location is liable for a civil penalty of not more than $5,000 per
day of violation.   The   bill would state that
a household goods carrier's unauthorized, unlicensed, or otherwise
unlawful infringement of another corporation's or person's trademark,
service mark, collective mark, certification mark, or trade name
that has been registered, as specified, may be assessed a fine not to
exceed $2,500, as provided. 
   Because a violation of the act or an order of the commission is a
crime, this bill would impose a state-mandated local program by
expanding the scope of a crime.
   (4) 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.  Section 5109 of the Public Utilities Code is amended to
read:
   5109.  "Household goods carrier" includes every corporation or
person, their lessees, trustee, receivers or trustees appointed by
any court whatsoever, engaged in the licensed or unlicensed
transportation for compensation or hire as a business by means of a
motor vehicle or motor vehicles being used in the transportation of
used household goods and personal effects over any public highway in
this state.
   SEC. 2.    Section 5110.7 is added to the  
Public Utilities Code   , to read:  
   5110.7.  "Broker" means a person engaged by others in the act of
arranging, for compensation, the intrastate transportation of used
household goods by a motor vehicle over the highways of this state
for, or on behalf of, a shipper, a consignor, or a consignee. 
   SEC. 2.   SEC. 3.   Section 5133 of the
Public Utilities Code is amended to read:
   5133.  (a) No household goods carrier shall engage, or attempt to
engage, in the business of the transportation of used household goods
and personal effects, by motor vehicle over any public highway in
this state, including  by any means or media,  advertising,
soliciting, offering, arranging as a broker, or entering into an
agreement regarding the transportation of used household goods and
personal effects, unless both of the following are satisfied:
   (1) For transportation of household goods and personal effects
entirely within this state, there is in force a permit issued by the
commission authorizing those operations.
   (2) For transportation of household goods and personal effects
from this state to another state or from another state to this state,
there is in force a valid operating authority issued by the Federal
Motor Carrier Safety Administration.
   (b) A household goods carrier that engages, or attempts to engage,
in the business of the transportation of used household goods and
personal effects in violation of subdivision (a) may not enforce any
security interest or bring or maintain any action in law or equity to
recover any money or property or obtain any other relief from any
consignor, consignee, or owner of household goods or personal effects
in connection with an agreement to transport, or the transportation
of, household goods and personal effects or any related services. A
person who utilizes the services of a household goods carrier
operating in violation of subdivision (a) may bring an action in any
court of competent jurisdiction in this state to recover all
compensation paid to that household goods carrier.
   (c) The operation of a motor vehicle used in the business of
transporting household goods and personal effects by a household
goods carrier that does not possess a valid permit or operating
authority, as required by subdivision (a), constitutes a public
nuisance. Any peace officer, as defined in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2 of the Penal Code, may remove
any motor vehicle located within the territorial limits in which the
officer may act, when the vehicle is found upon a highway and is
being used in a manner constituting a public nuisance. At the request
of the commission, the Attorney General, district attorney, city
attorney, or county counsel, the law enforcement agency may impound
the vehicle for a period not to exceed 72 hours to enable the
requesting agency to abate the public nuisance, to obtain an order
from the superior court of the county in which the vehicle has been
impounded to prevent the use of the motor vehicle in violation of
law, and to obtain any other remedy available under law as permitted
by Section 5316.
   (d) Any person having possession or control of used household
goods or personal effects, who knows, or through the exercise of
reasonable care should know, that a household goods carrier
transported those household goods or personal effects in violation of
subdivision (a), shall release the household goods and personal
effects to the consignor or consignee, as defined in Section 5142,
upon the request of the consignor or consignee. If that person fails
to release the household goods and personal effects, any peace
officer, as defined in subdivision (c), may take custody of the
household goods and personal effects and release them to the
consignor or consignee. 
   (e) For the purposes of this section, "broker" means a person
engaged for others in the act of arranging, for compensation, the
transportation of used household goods by a motor vehicle over the
highways of this state for or on behalf of a shipper, consignor, or a
consignee. 
   SEC. 4.    Section 5139.1 is added to the  
Public Utilities Code   , to read:  
   5139.1.  (a) The commission shall establish rules permitting
electronic transactions, including electronic signatures and
electronic transmission, completion, and execution of forms,
contracts, and documents, with the rules requiring the carrier and
shipper to agree in advance to the electronic transaction, the
transaction meets verification, printing, and storage requirements
adopted by the commission, and the electronic transaction otherwise
conforms with this chapter, the commission's rules, and applicable
law. For purposes of this section, "carrier" means the carrier whose
Cal-T number is on the first shipping document presented to the
shipper.
   (b) Requirements pursuant to Sections 5142, 5143, 5221, 5223,
5224, and 5225 related to written forms and documents, information
booklet, document storage, signatures, and the like may be satisfied
by complying with the rules adopted by the commission pursuant to
subdivision (a). 
   SEC. 3.   SEC. 5.   Section 5144 is
added to the Public Utilities Code, to read:
   5144.  Every household goods carrier shall add a prominent link to
the household goods carrier's home Internet Web site, if the
household goods carrier operates, posts to, or uses an Internet Web
site, that immediately directs all consumers to the commission's
Internet Web site on moving companies and household goods carriers
that promotes consumer rights and protection.
   SEC. 4.   SEC. 6  .   Section
5311 of the Public Utilities Code is amended to read:
   5311.  (a) Every household goods carrier and every officer,
director, agent, or employee of any household goods carrier who
violates or who fails to comply with, or who procures, aids, or abets
any violation by any household goods carrier of any provision of
this chapter, or who fails to obey, observe, or comply with any
order, decision, rule, regulation, direction, demand, or requirement
of the commission, or of any operating permit issued to any household
goods carrier, or who procures, aids, or abets any household goods
carrier in its failure to obey, observe, or comply with any such
order, decision, rule, regulation, direction, demand, requirement, or
operating permit, is guilty of a misdemeanor, and is punishable by
 a  fine of not more than two thousand five hundred dollars
($2,500) or by imprisonment in the county jail for not more than
three months, or both. If a violation is willful, each willful
violation is punishable by  a  fine of not more than ten
thousand dollars ($10,000) or by imprisonment in the county jail for
not more than one year, or both.  If the violation involves
operating or holding one's self out as a household goods carrier
without a permit, the fine shall be not less than one thousand
dollars ($1,000). 
   (b)  Any person who violates subdivision (a) of Section 5133, is
guilty of a misdemeanor, and is punishable by  a  fine of
not more than ten thousand dollars ($10,000), by imprisonment in the
county jail for not more than one year, or both, for each violation.
   SEC. 7.    Section 5314.5 of the   Public
Utilities Code   is amended to read: 
   5314.5.  Every corporation or person who knowingly and willfully
issues, publishes, or affixes, or causes or permits the issuance,
publishing, or affixing, of any oral or written advertisement,
broadcast, or other holding out to the public, or any portion
thereof, that the corporation or person is in operation as a
household goods carrier without having a valid permit issued under
this chapter is guilty of a misdemeanor punishable by a fine of not
more than  one thousand dollars ($1,000)   two
thousand five hundred dollars ($2,500)  .
   SEC. 5.   SEC. 8   .   Section
5314.7 is added to the Public Utilities Code, to read:
   5314.7.   Every household goods carrier that falsifies
licensure, membership in an association, or location is subject to a
penalty of not more than five thousand dollars ($5,000) per day that
the carrier is in violation of this section.   Any
household goods carrier's unauthorized, unlicensed, or otherwise
unlawful infringement of another corporation's or person's trademark,
service mark, collective mark, certification mark, or trade name
that has been registered with the Secretary of State or the United
States Patent and Trademark Office is subject to having its permit
suspended or revoked and may be assessed a fine not to exceed two
  thousand five hundred dollars ($2,500). In addition, the
commission may assess an amount sufficient to cover the reasonable
expense of investigation incurred by the commission to verify the
infringement. Fines shall be issued only for acts of infringement
that are reasonably related to the household goods moving business.

   SEC. 9.    Section 5315 of the   Public
Utilities Code   is amended to read: 
   5315.  Every violation of the provisions of this chapter or of any
order, decision, decree, rule, direction, demand, or requirement of
the commission by  any household goods carrier, any
corporation  ,  or  any  person is a separate and
distinct offense, and in case of a continuing violation each day's
continuance thereof is a separate and distinct offense.
   SEC. 6.   SEC. 10.   Section 5322 of the
Public Utilities Code is amended to read:
   5322.  (a) The Legislature finds and declares that advertisement
and use of telephone service  is   are 
essential for household goods carriers to obtain business and conduct
intrastate moving services. The unlawful advertisement by unlicensed
household goods carriers has required properly licensed and
regulated household goods carriers to compete with unlicensed
household goods carriers using unfair business practices. Unlicensed
household goods carriers have also exposed citizens of the State of
California to unscrupulous persons who portray themselves as properly
licensed, qualified, and insured household goods carriers. Many of
these unlicensed household goods carriers have been found to have
perpetrated acts of theft, fraud, and dishonesty upon unsuspecting
citizens of the State of California.
   (b) (1) The Legislature finds and declares that the termination of
telephone service utilized by unlicensed household goods carriers is
essential to ensure the public safety and welfare. Therefore, the
commission should take enforcement action as specified in this
section to disconnect telephone service of unlicensed household goods
carriers who unlawfully advertise moving services in yellow page
directories and other publications. The enforcement action provided
for by this section is consistent with the decision of the Supreme
Court of the State of California in Goldin, et al. v. Public
Utilities Commission et al., (1979) 23  Cal. 3d 
 Cal.3d  638.
   (2) Notwithstanding Section 2891, for purposes of this section, a
telephone utility, or a corporation that holds a controlling interest
in the telephone utility, or any business that is a subsidiary or
affiliate of the telephone utility, that has the name and address of
the subscriber to a telephone number being used by an unlicensed
household goods carrier shall provide the commission, or an
authorized official of the commission, upon demand, and the order of
a magistrate, access to this information. A magistrate may only issue
an order, for the purposes of this subdivision, when the magistrate
has made the findings required by subdivision (c).
   (c) Any telephone utility operating under the jurisdiction of the
commission shall refuse telephone service to a new customer and shall
disconnect telephone service of an existing customer only after it
is shown that other available enforcement remedies of the commission
have failed to terminate unlawful activities detrimental to the
public welfare and safety, and upon receipt from any authorized
official of the commission of a writing, signed by a magistrate, as
defined by Sections 807 and 808 of the Penal Code, finding that
probable cause exists to believe that the customer is advertising or
holding out to the public to perform, or is performing, household
goods carrier services without having in force a permit issued by the
commission authorizing those services, or that the telephone service
otherwise is being used or is to be used as an instrumentality,
directly or indirectly, to violate or to assist in violation of the
laws requiring a household goods carrier permit. Included in the
writing of the magistrate shall be a finding that there is probable
cause to believe that the subject telephone facilities have been or
are to be used in the commission or facilitation of holding out to
the public to perform, or in performing, household goods carrier
services without having in force a permit issued by the commission
authorizing those services, and that, absent immediate and summary
action, a danger to public welfare or safety will result.
   (d) Any person aggrieved by any action taken pursuant to this
section shall have the right to file a complaint with the commission
and may include therein a request for interim relief. The commission
shall schedule a public hearing on the complaint to be held within 21
calendar days of the filing and assignment of a docket number to the
complaint. The remedy provided by this section shall be exclusive.
No other action at law or in equity shall accrue against any
telephone utility because of, or as a result of, any matter or thing
done or threatened to be done pursuant to this section.
   (e) At any hearing on complaint pursuant to subdivision (d), the
commission staff shall have the right to participate, including the
right to present evidence and argument and to present and
cross-examine witnesses. The commission staff shall have both the
burden of providing that the use made or to be made of the telephone
service is to hold out to the public to perform, or to assist in
performing, services as a household goods carrier, or that the
telephone service is being or is to be used as an instrumentality,
directly or indirectly, to violate or to assist in violation of the
licensing laws as applicable to household goods carriers and that the
character of the acts is such that, absent immediate and summary
action, a danger to public welfare or safety will result, and the
burden of persuading the commission that the telephone services
should be refused or should not be restored.
   (f) The telephone utility, immediately upon refusal or
disconnection of service in accordance with subdivision (c), shall
notify the customer or subscriber in writing that the refusal or
disconnection of telephone service has been made pursuant to a
request of the commission and the writing of a magistrate, and shall
include with the notice a copy of this section, a copy of the writing
of the magistrate, and a statement that the customer or subscriber
may request information from the commission at its San Francisco or
Los Angeles office concerning any provision of this section and the
manner in which a complaint may be filed.
   (g) Each contract for telephone service, by operation of law,
shall be deemed to contain the provisions of this section. The
provisions shall be deemed to be a part of any application for
telephone service. Applicants and customers for telephone service
shall be deemed to have consented to the provisions of this section
as a consideration for the furnishing of the service.
   (h) The terms "person," "customer," and "subscriber," as used in
this section, include a subscriber to telephone service, an applicant
for that service, a corporation, a company, a partnership, an
association, and an individual.
   (i) The term "telephone utility," as used in this section,
includes a "telephone corporation" and a "telegraph corporation," as
defined in Division 1 (commencing with Section 201).
   (j) The term "authorized official," as used in this section,
includes the Executive Director of the Public Utilities Commission or
any commission employee designated pursuant to paragraph (5) of
subdivision (a) of Section 830.11 of the Penal Code.
   SEC. 7.   SEC. 11.   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.