BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



           ------------------------------------------------------------ 
          |SENATE RULES COMMITTEE            |                  SB 1092|
          |Office of Senate Floor Analyses   |                         |
          |1020 N Street, Suite 524          |                         |
          |(916) 651-1520         Fax: (916) |                         |
          |327-4478                          |                         |
           ------------------------------------------------------------ 
           
                                         
                                 THIRD READING


          Bill No:  SB 1092
          Author:   De León (D)
          Amended:  4/9/12
          Vote:     21

           
           SENATE TRANSPORTATION & HOUSING COMM  :  9-0, 04/10/12
          AYES:  DeSaulnier, Gaines, Harman, Kehoe, Lowenthal, 
            Pavley, Rubio, Simitian, Wyland

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8


           SUBJECT  :    Brokers of construction trucking services:  
          surety bonds

           SOURCE  :     California Construction Trucking Association


           DIGEST  :    This bill requires that brokers of construction 
          trucking services provide written evidence to specified 
          parties and in a specified manner of possession of a valid 
          surety bond.

           ANALYSIS  :    A broker of construction trucking services 
          (broker) is someone who arranges services from and is 
          responsible for paying an independent contractor who 
          provides dump truck services (dump truck operator).  
          Existing law requires that a broker pay a dump truck 
          operator by the 25th day following the last day of the 
          month in which the dump truck provided services, provided 
          that the dump truck operator documents the charges, the 
          dump truck operator is properly permitted, and no dispute 
                                                           CONTINUED





                                                               SB 1092
                                                                Page 
          2

          exists between the two over the charges.  If the broker 
          does not pay in a timely fashion, state law prescribes a 
          penalty of two percent per month of withheld charges.

          Since 2011, existing law has required a broker to secure a 
          surety bond of not less than $15,000 to ensure that a 
          contracted dump truck operator receives payment, even if 
          the broker fails to pay the dump truck operator by the 25th 
          day of the month following when services were rendered.  A 
          broker who does not secure this surety bond is guilty of a 
          misdemeanor and subject to a fine of up to $5,000.

          This bill:

          1.Requires a broker to post evidence of its bond to its 
            website or annually to provide written evidence of the 
            broker's surety bond to a third-party nonprofit 
            organization that is related to the industry and 
            regularly maintains a published database of bonded 
            brokers.  The broker must remove the evidence from its 
            web site or notify the third party organization when its 
            surety bond expires or is canceled. 

          2.Prohibits a broker from engaging the services of any dump 
            truck operator unless prior to the commencement of work 
            in each calendar year, the broker first provides written 
            evidence of its valid surety bond to any person that 
            hires the broker to furnish construction transportation 
            services and also to the hired dump truck operator.  

          3.Defines "written evidence of the broker's valid surety 
            bond" as a copy of the bond, a certificate of insurance, 
            a continuation certificate, or other similar 
            documentation originally issued from the surety that 
            includes the surety and broker's name, bond number, and 
            effective and expiration dates of the bond.
          
           Comments
           
          The author introduced this bill at the request of the 
          California Construction Trucking Association, which 
          represents construction-related trucking companies that 
          operate fleets of dump trucks.  In 2010, the author and 
          sponsor of the bill teamed up on AB 145 (DeLeon), Chapter 







                                                               SB 1092
                                                                Page 
          3

          429, Statutes of 2010, in response to reports from dump 
          truck operators that construction trucking brokers were 
          engaging in unscrupulous practices toward the dump truck 
          operators whose services they broker.  AB 145 requires 
          brokers of construction trucking services to secure a 
          surety of bond of $15,000 to ensure payment of contracted 
          dump truck operators.

          The sponsor now reports that some unscrupulous, 
          unprofessional brokers are shirking their bonding 
          responsibilities under AB 145.  Specifically, these brokers 
          have either failed to obtain a bond or have refused to 
          provide bond information to the dump truck operators whose 
          services they broker.  AB 145 included no affirmative 
          obligation that brokers notify others of the bond 
          information.  This bill addresses that problem by adding 
          notification requirements to the existing broker bond.  By 
          creating easier access to a copy of the bond, a contracted 
          dump truck owner will know up front if in fact he or she is 
          contracting with a bonded broker.  Moreover, if the dump 
          truck operator has already completed the work for the 
          broker and has not been paid, he or she can easily access 
          the bond information in order to file a claim on the bond.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  Yes

           SUPPORT  :   (Verified  5/1/12)

          California Construction Trucking Association (source) 
          California Teamsters

           OPPOSITION  :    (Verified  5/1/12)

          California Trucking Association

           ARGUMENTS IN SUPPORT  :    According to the sponsor:

               Since January 1, 2011, the new broker bond law has had 
               considerable success in cleaning up the abuses within 
               construction trucking industry. While CCTA has no 
               ability to determine exact figures, it is our 
               understanding that many reputable construction 
               trucking brokers have obtained a surety bond as a 







                                                               SB 1092
                                                                Page 
          4

               result of AB 145. 

               However, CCTA has been notified by a number of its 
               member owner-operators that some unscrupulous, 
               unprofessional brokers have continued to shirk their 
               bonding responsibilities under the law. Specifically, 
               these brokers have either failed to obtain a bond at 
               all, or have refused to provide bond information to 
               their subhaulers as there is currently no affirmative 
               obligation to notify others of the bond information. 
               Without a copy, subhaulers do not have the requisite 
               information to file on a broker's bond and a broker 
               can continue to refuse to pay their obligations 
               without repercussions. 

               This bill, SB 1092 by Senator De Leon is designed to 
               resolve this problem by creating transparency and 
               adding notification requirements to the existing 
               broker bond. By creating easier access to a copy of 
               the bond, a subhauler will know up front if in fact 
               they are contracting with a bonded broker. Moreover, 
               if they have already completed the work for the broker 
               and have not been paid, they can easily access the 
               bond information if they choose to file on the bond. 
               This is accomplished through a series of strategic 
               points of access for a subhauler including from the 
               broker him- or herself, online from a 3rd party 
               organization or broker's website, or from a person 
               that hires the broker. This would provide for 
               assurance of payments.

           ARGUMENTS IN OPPOSITION  :    According to the California 
          Trucking Association:

               SB 1092 would conflict with federal law that forbids 
               states to enact laws related to the "enact or enforce 
               a law ? related to a price, route, or service of any 
               motor carrier," 49 U. S. C. §14501(c)(1) or "enact or 
               enforce any law?relating to intrastate rates, 
               intrastate routes, or intrastate services of any 
               freight forwarder or broker" 49 U.S.C. §14501(b)(1). 
               The provisions of this bill are similar to a Maine law 
               that was found to be pre-empted by the Supreme Court 
               based on the fact that it directly affected the manner 







                                                               SB 1092
                                                                Page 
          5

               in which services are provided. (Rowe v. New Hampshire 
               Motor Transport Association et al.)  

               SB 1092 directly regulates the manner in which the 
               services of motor carriers and brokers are provided. 
               Also, it would require carriers and brokers to offer a 
               system of services that the market does not now 
               provide by establishing disclosure, recordkeeping and 
               reporting requirements as a precondition of arranging 
               transportation services, thereby creating a 
               significant and adverse impact in respect to the 
               federal Act's ability to achieve pre-emption related 
               objectives.


          JJA:nl  5/1/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

                                ****  END  ****