BILL NUMBER: AB 2118 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 23, 2012
PASSED THE ASSEMBLY AUGUST 27, 2012
AMENDED IN SENATE AUGUST 6, 2012
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, 5139, 5142, 5143, 5311,
5314.5, 5315, and 5322 of, and to add Sections 5110.7, 5144, and
5314.7 to, the Public Utilities Code, relating to household goods
carriers.
LEGISLATIVE COUNSEL'S DIGEST
AB 2118, 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 permitted
or unpermitted 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 require a broker, as
defined, to be considered a household goods carrier. The bill would
additionally prohibit a household goods carrier from arranging, by
any means or media, as a broker for the transportation of used
household goods and personal effects. The bill would require the
commission to establish rules permitting electronic transactions, as
specified and would authorize specified documents to be in electronic
form, if agreed upon by the carrier and the customer. The bill would
require a household goods carrier to add a prominent link to 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 also would provide that a household goods carrier that
falsifies permit status, membership in an association, or location is
liable for a civil penalty of not more than $2,500 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.
(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.
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 permitted or unpermitted
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. A broker, as defined in Section 5110.7, shall be
considered a household goods carrier.
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. 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.
SEC. 4. Section 5139 of the Public Utilities Code is amended to
read:
5139. (a) The commission may establish rules for the performance
of any service of the character furnished or supplied by household
goods carriers. Every household goods carrier shall observe these
rules. Failure to do so is unlawful.
(b) No later than July 1, 2013, the commission shall establish
rules to authorize an electronic form of documents required by this
chapter, consistent with the purpose of the document and if the
carrier and the customer agree to the use of an electronic form.
SEC. 5. Section 5142 of the Public Utilities Code is amended to
read:
5142. (a) Except as provided in Section 5133, a household goods
carrier in compliance with this chapter has a lien on used household
goods and personal effects to secure payment of the amount specified
in subdivision (b) for transportation and additional services ordered
by the consignor. A lien does not attach to food, medicine, or
medical devices, items used to treat or assist an individual with a
disability, or items used for the care of a minor child.
(b) (1) The amount secured by the lien is the maximum total dollar
amount for the transportation of the household goods and personal
effects and any additional services (including any bona fide change
order permitted under the commission's tariffs) that is set forth
clearly and conspicuously in writing adjacent to the space reserved
for the signature of the consignor and that is agreed to by the
consignor before any goods or personal effects are moved from their
location or any additional services are performed.
(2) The dollar amount for the transportation of household goods
and personal effects and additional services may not be preprinted on
any form, shall be just and reasonable, and shall be established in
good faith by the household goods carrier based on the specific
circumstances of the services to be performed.
(c) Upon tender to the household goods carrier of the amount
specified in subdivision (b), the lien is extinguished, and the
household goods carrier shall release all household goods and
personal effects to the consignee.
(d) A household goods carrier may enforce the lien on household
goods and personal effects provided in this section except as to any
goods that the carrier voluntarily delivers or unjustifiably refuses
to deliver. The lien shall be enforced in the manner provided in this
section and Chapter 6 (commencing with Section 9601) of Division 9
of the Commercial Code for the enforcement of a security interest in
consumer goods in a consumer transaction. To the extent of any
conflict between this section and that Chapter 6, this section shall
prevail. Every act required in connection with enforcing the lien
shall be performed in good faith and in a commercially reasonable
manner.
(e) The household goods carrier shall provide a notification of
disposition at least 30 days prior to any disposition to each
consignor and consignee by personal delivery, or in the alternative,
by first-class and certified mail, postage prepaid and return receipt
requested, at the address last known by the carrier and at the
destination address, and by electronic mail if an electronic mail
address is known to the carrier. If any of the required recipients of
notice are married to each other, and according to the carrier's
records, reside at the same address, one notice addressed to both
shall be sufficient. Within 14 days after a disposition, the carrier
shall provide to the consignors any surplus funds from the
disposition and an accounting, without charge, of the proceeds of the
disposition.
(f) Any person having possession or control of household goods or
personal effects, who knows, or through the exercise of reasonable
care should know, that the household goods carrier has been tendered
the amount specified in subdivision (b), shall release the household
goods and personal effects to the consignor or consignee, upon the
request of the consignor or consignee. If the person fails to release
the household goods and personal effects to the consignor or
consignee, any peace officer, as defined in subdivision (c) of
Section 5133, may take custody of the household goods and personal
effects and release them to the consignor or consignee.
(g) This section shall not affect any rights, if any, of a
household goods carrier to claim additional amounts, on an unsecured
basis, or of a consignor or consignee to make or contest any claim,
and tender of payment of the amount specified in subdivision (b) is
not a waiver of claims by the consignor or consignee.
(h) Any person injured by a violation of this section may bring an
action for the recovery of the greater of one thousand dollars
($1,000) or actual damages, injunctive or other equitable relief,
reasonable attorney's fees and costs, and exemplary damages of not
less than three times the amount of actual damages for a willful
violation.
(i) Any waiver of this section shall be void and unenforceable.
(j) Notwithstanding any other law, this section exclusively
establishes and provides for a household goods carrier's lien on used
household goods and personal effects to secure payment for
transportation and additional services ordered by the consignor.
(k) For purposes of this section, the following terms have the
following meaning:
(1) "Consignor" means the person named in the bill of lading as
the person from whom the household goods and personal effects have
been received for shipment and that person's agent.
(2) "Consignee" means the person named in the bill of lading to
whom or to whose order the household goods carrier is required to
make delivery as provided in the bill of lading and that person's
agent.
(l) Any document required by this section may be in an electronic
form, if agreed upon by the carrier and the customer.
SEC. 6. Section 5143 of the Public Utilities Code is amended to
read:
5143. (a) For purposes of this section, the following terms have
the following meaning:
(1) "Consignor" means the person named in the bill of lading as
the person from whom the household goods and personal effects have
been received for shipment and that person's agent.
(2) "Consignee" means the person named in the bill of lading to
whom or to whose order the household goods carrier is required to
make delivery as provided in the bill of lading and that person's
agent.
(b) Any household goods carrier engaged in the business of
transportation of used household goods and personal effects by motor
vehicle over any public highway in this state shall provide each
consignor with a completed copy of the notice set forth in this
section. The notice shall be printed in at least 12-point type,
except the title and first two paragraphs which shall be printed in
boldface type, and provided to each consignor at least three days
prior to the date scheduled for the transportation of household goods
or personal effects. If the consignor requests services on a date
that is less than three days before the scheduled date for
transportation of the household goods or personal effects, the
carrier shall provide the notice as soon as practicable, but in no
event may the carrier commence any services until the consignor has
signed and received a signed copy of the notice. The carrier shall
obtain sufficient information from the consignor to fill out the form
and shall include the correct maximum amount and a sufficient
description of services that will be performed. The carrier shall
retain a copy of the notice, signed by the cosignor, for at least
three years from the date the notice was signed by the cosignor.
(c) Any waiver of the requirements of this section is void and
unenforceable.
(d) The "Not To Exceed" amount set forth in the notice and the
agreement between the household goods carrier and the consignor shall
be the maximum total dollar amount for which the consignor may be
liable for the transportation of household goods and personal effects
and any additional services ordered by the consignor (including any
bona fide change order permitted under the commission's rules and
tariffs) and agreed to by the consignor before any goods or personal
effects are moved from their location or any other services are
performed.
(e) A household goods carrier may provide the notice set forth in
this section either as a separate document or by including it as the
centerfold of the informational booklet that the household goods
carrier is required to provide the consignor under the commission's
tariffs. If the household goods carrier provides the notice as part
of the informational booklet, the booklet shall contain a tab that
extends beyond the edge of the booklet at the place where the notice
is included. The statement "Important Notice" shall be printed on the
tab in at least 12-point boldface type. In addition, the statement
"Customer Must Read And Sign The Important Notice In The Middle Of
This Booklet Before A Move Can Begin" shall be set forth in 14-point
boldface type on the front cover of the booklet.
(f) The notice provided the consignor shall be in the following
form:
"IMPORTANT NOTICE ABOUT YOUR MOVE
"IT IS VERY IMPORTANT THAT YOU ONLY AGREE TO A "NOT TO EXCEED" AMOUNT
THAT YOU THINK IS A PROPER AND REASONABLE FEE FOR THE SERVICES YOU
ARE REQUESTING. THE "NOT TO EXCEED" AMOUNT THIS MOVER IS REQUESTING
IS $______________________ to perform the following services:
_____________________________________________________________________
______________________________________________________________________
_
______________________________________________________________________
_.
"IF YOU DO NOT AGREE TO THE "NOT TO EXCEED" AMOUNT LISTED OR THE
DESCRIPTION OF SERVICES, YOU HAVE THE RIGHT TO REFUSE THE MOVER'S
SERVICE AT NO CHARGE TO YOU.
"If you request additional or different services at the time of the
move, you may be asked to complete a Change Order which will set
forth your agreement to pay for additional fees for those newly
requested services. If you agree to the additional charges on that
Change Order, those charges may be added to the "NOT TO EXCEED"
amount set forth above. If you do not agree to the amounts listed in
the Change Order, you should not sign it and may refuse the mover's
services.
"A mover cannot refuse to release your goods once you have paid the
"NOT TO EXCEED" amount for the transportation of your goods and
personal effects and any additional services that you have agreed to
in writing. The "NOT TO EXCEED" amount must be reasonable.
"A mover cannot, under any circumstances, withhold food, medicine,
medical devices, items to treat or assist a disabled person, or items
used for care of a minor child. An unlicensed mover has no right to
withhold your goods for any reason including claims that you have not
adequately paid for services rendered.
"For additional information or to confirm whether a mover is licensed
by the California Public Utilities Commission, please call the
Public Utilities Commission toll free at:
___________________________.
insert toll-free number
""I have completed this form and provided the
consumer (shipper) with a copy of this
notice.
""Signed
___________________________Dated_________________
___
""I have been provided with a copy of this
form.
""Signed
___________________________Dated_________________
__''
(g) Any document required by this section may be in an electronic
form, if agreed upon by the carrier and the customer.
SEC. 7. 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. 8. 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. 9. 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 two thousand five hundred dollars ($2,500).
SEC. 10. Section 5314.7 is added to the Public Utilities Code, to
read:
5314.7. Every household goods carrier that falsifies permit
status, membership in an association, or location is subject to a
penalty of not more than two thousand five hundred dollars ($2,500)
per day that the carrier is in violation of this section.
SEC. 11. 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. 12. 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 are essential for household goods
carriers to obtain business and conduct intrastate moving services.
The unlawful advertisement by unpermitted household goods carriers
has required properly permitted and regulated household goods
carriers to compete with unpermitted household goods carriers using
unfair business practices. Unpermitted household goods carriers have
also exposed citizens of the State of California to unscrupulous
persons who portray themselves as properly permitted, qualified, and
insured household goods carriers. Many of these unpermitted 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 unpermitted 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 unpermitted 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) 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 unpermitted
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. 13. 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.