BILL NUMBER: AB 2118 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Butler
FEBRUARY 23, 2012
An act to amend Sections 5133, 5311, and 5322 of, and to add
Sections 5144, 5314.7, and 5323 to, the Public Utilities Code,
relating to household goods carriers.
LEGISLATIVE COUNSEL'S DIGEST
AB 2118, as introduced, Butler. Household goods carriers.
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 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 additionally prohibit a household goods carrier
from arranging as a broker, as defined, for the transportation of
used household goods and personal effects. This bill would permit the
commission to order an Internet Web site provider or the source of a
posting on the Internet Web site offering service requiring a
license to order that the provider or the source of the listing
remove the Internet Web site or listing offering unlicensed service,
as prescribed. This bill would require a household goods carrier with
an Internet Web site to add a link to that site that directs
consumers to an Internet Web site hosted by the commission that
promotes consumer rights and protection.
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
use 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.
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 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 $5,000.
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.
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.
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 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 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. 2. Section 5144 is added to the Public Utilities Code, to
read:
5144. Every household goods carrier shall add a link to the
household goods carrier's Internet Web site, if any, that directs all
consumers to an Internet Web site hosted by the commission that
promotes consumer rights and protection.
SEC. 3. 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
fine of not more than one five thousand
dollars ($1,000) ($5,000) 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 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.
(b) Any person who violates subdivision (a) of Section 5133, is
guilty of a misdemeanor, and is punishable by 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. 4. 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.
SEC. 5. 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 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 638.
(2) For 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. 6. Section 5323 is added to the Public Utilities Code, to
read:
5323. If the commission determines after an investigation that an
unlicensed household goods carrier has an Internet Web site or other
posting on an Internet Web site offering service requiring a
license, the commission may order the Internet Web site's provider or
the source of the listing, if under the jurisdiction of the state,
to remove the Internet Web site or the listing offering the
unlicensed service.
SEC. 7. 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.