BILL ANALYSIS Ó
SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS
Senator Ben Hueso, Chair
2015 - 2016 Regular
Bill No: AB 1289 Hearing Date: 6/13/2016
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|Author: |Cooper |
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|Version: |9/3/2015 As Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Nidia Bautista |
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SUBJECT: Transportation network companies: participating
drivers: penalties
DIGEST: This bill would require a transportation network
company (TNC) to conduct comprehensive criminal background
checks for each participating driver that include local, state,
and federal law enforcement records and prohibit a TNC from
retaining a driver who is required by any law to register as a
sex offender or has been convicted of any violent felony, sexual
offense, driving under the influence offense, non-felony violent
crime, act of fraud, act of terror, or crime involving property
damage or theft.
ANALYSIS:
Existing law:
1)Provides that the California Public Utilities Commission
(CPUC) may fix rates and establish rules for the
transportation of passengers and property by transportation
companies, prohibit discrimination, and award reparation for
the exaction of unreasonable, excessive, or discriminatory
charges. (Article XII, §4 of the California Constitution)
2)Establishes the CPUC's authority to regulate, require license
or permit to operate, require insurance and workers
compensation, take appropriate enforcement action and other
provisions related to passenger stage corporations and
transportation charter-party carriers. (Public Utilities Code
§§1031 et. seq. and 5351).
AB 1289 (Cooper) PageB of?
3)Defines a TNC as an organization, including, but not limited
to, a corporation, limited liability company, partnership,
sole proprietor, or any other entity, operating in California
that provides prearranged transportation services for
compensation using an online-enabled application or platform
to connect passengers with drivers using a personal vehicle.
(Public Utilities Code §5431)
4)Requires the Department of Justice (DOJ) to furnish state
summary criminal history information to specified entities, if
needed in the course of their duties, provided that when
information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or
any other entity in fulfilling employment, certification, or
licensing duties, specified restrictions listed in the Labor
Code are followed. (Penal Code §11105 (b))
5)Allows the DOJ to furnish state summary criminal history
information to specified entities and, when specifically
authorized, federal-level criminal history information, upon a
showing of a compelling need, provided that when information
is furnished to assist an agency, officer, or official of
state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing
duties, specified restrictions listed in the Labor Code are
followed. (Penal Code §11105 (c))
This bill:
1)Requires a TNC to conduct comprehensive criminal background
checks for each participating driver that includes local,
state, and federal law enforcement records.
2)Prohibits a TNC from contracting, employing, or retaining a
driver who is required by any law to register as a sex
offender or has been convicted of any violent felony, sexual
offense, driving under the influence, non-felony violent
crime, act of fraud, act of terror, or crime involving
property damage or theft.
3)Provides that a TNC that violates or fails to comply with
these requirements is subject to a penalty of not less than
five hundred dollars ($500) nor more than fifty thousand
dollars ($50,000) for each offense.
AB 1289 (Cooper) PageC of?
Background
Criminal background check. A criminal background check is a
search of confidential law enforcement databases which can be
cross-referenced with a person's name, social security number or
other personal identifier (also known as biometric
identification). The cross-referencing and the biometric
identification (such as a fingerprint) ensures that even if a
person uses multiple names or another person in the database
exists with the same name, the result of the search will be
accurate.<1> These background checks can be conducted by
private vendors or directly by a government agency. The various
types of criminal background checks range from a simplified name
check to social security number check to a fingerprint check, or
combination thereof, which is run through the Federal Bureau of
Investigations (FBI) database or through a state or local level
law enforcement database.
TNCs and criminal background checks. The recent growth and
popularity of technology-enabled transportation ride-hailing
services from companies like Lyft and Uber have raised questions
about whether these services are adequately regulated to ensure
public safety. A year ago, the LA Times found that at least
four men who were ticketed by Los Angeles International Airport
police while driving for a TNC have criminal convictions that
would have barred them from operating a taxi - including
convictions of child exploitation, manslaughter and identify
theft. In August, district attorneys of Los Angeles and San
Francisco filed amended complaints against the same TNC citing
25 instances they found of California drivers for this company
with criminal records. Earlier this year, the district
attorneys and the company reached a settlement agreement of $25
million of a lawsuit focused on consumer protection and public
safety whereby the district attorneys accused the company of
overstating its customer-safety policy in marketing materials.
The company was originally claiming it has the "safest ride on
the road" and described its background checks as "the gold
standard." These are claims the company can no longer make.
More recently, the City of LA sent the CPUC a letter requesting
a pilot project on criminal background checks that would require
finger print background checks. However, the CPUC declined.
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<1> Daus, Matthew W. and Pasqualino Russo. One Standard for All:
Criminal Background Checks for Taxicab, For-hire, and
Transportation Network Company Drivers. May 2015.
AB 1289 (Cooper) PageD of?
Varying requirements. The various types of transportation
for-hire services (e.g., TNCs, limousines, taxi cabs) have
varying regulations related to criminal background checks.
Taxicab services are required to undergo extensive criminal
background check requirements, including a Live scan -
fingerprint check - that is run through the FBI and other
databases. Unlike taxicab services, TNCs are not required to
perform fingerprint criminal background checks that use the
United States Department of Justice FBI database. While the
CPUC does require TNCs to perform criminal background checks on
their drivers, fingerprinting is not required. However, the
CPUC has stated its intention to address the issue of criminal
background checks in a third phase of its current proceeding
related to TNC regulations. The agency has also recently
required fingerprint background checks via the TrustLine finger
print check system for TNCs that are focused on serving
unaccompanied minors. The TrustLine fingerprint check system
searches federal and state law enforcement databases as is
commonly used for professions that require interaction with
children and minors, such as teachers, school volunteers, school
bus drivers and others. Additionally, the CPUC does not provide
requirements related to convictions and offenses that occurred
more than seven years prior to the driver-applicant's
submission. By including specific offenses in the statute, TNCs
would be required to prohibit applicant-drivers with these
offenses regardless of how long ago they occurred.
Enhancing public safety. While no one background check system is
completely full-proof, it seems a combination of name and social
security checks with a biometric identifier, such as a finger
print, would ensure the greatest level of accuracy, and
therefore the best protection of public safety. However,
fingerprinting requires applicants to visit a police station or
other channeling office in order to provide fingerprints that
can be used to search in federal, state, and local law
enforcement databases. The author's intent to enhance public
safety can be strengthened by including language that would
require the CPUC to consider biometric, including fingerprint
AB 1289 (Cooper) PageE of?
background checks, for TNCs. As currently drafted, it is
unclear whether the CPUC would be required to consider any
biometric requirements. The author and committee may wish to
amend the bill to require the CPUC to consider requiring the use
of biometric identifiers in administering criminal background
checks.
Double Referral. Should this bill be approved by the committee,
it will be re-referred to the Senate Committee on Public Safety
for its consideration.
Prior/Related Legislation
AB 1422 (Cooper, Chapter 791, Statutes of 2015) required TNCs to
participate in the Department of Motor Vehicles Pull Notice
System to regularly check the driving records of participating
drivers.
AB 2777 (Nazarian, 2016) would have allowed, but not require, a
TNC to ask the DOJ to provide summary criminal history
information for its employees and contractors. The bill failed
passage on the Assembly floor.
SB 1035 (Hueso, 2016) would have required, among other things,
the CPUC to study several driver background check protocols,
including the United States DOJ background check, and to adopt
any for TNCs that would enhance public safety by capturing
records of any criminal offense. SB 1035 failed in Senate
Committee on Transportation and Housing.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: Yes Local: Yes
SUPPORT:
California Delivery Association
Peace Officers Research Association of California
San Diego International Airport
AB 1289 (Cooper) PageF of?
OPPOSITION:
None received
ARGUMENTS IN SUPPORT: According to the author, this bill seeks
to improve the safety of consumers utilizing TNC services. AB
1289 "will assist TNCs uncover the complete criminal history of
prospective drivers and will help ensure the safety of
passengers utilizing TNC services." The San Diego Airport
Authority in supporting the bill, states "the Airport Authority
is continually seeking ways to enhance the safety of passengers
and employees at San Diego International Airport. Accordingly,
this bill could reduce the potential risk posed by drivers with
criminal records to individuals utilizing TNCs to access the
airport."
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