BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1289 Hearing Date: June 28, 2016
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|Author: |Cooper |
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|Version: |June 21, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Transportation Network Companies: Participating
Drivers: Penalties
HISTORY
Source: Author
Prior Legislation:None applicable
Support: California Delivery Association; Peace Officers
Research Association of California; San Diego
International Airport
Opposition:American Civil Liberties Union; East Bay Community
Law Center; Legal Services for Prisoners with Children
Assembly Floor Vote: Not Relevant
PURPOSE
The purpose of this bill is to require transportation network
companies to do a non-fingerprint based background check on
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their drivers.
Existing law requires the Department of Justice (DOJ) to
maintain state summary criminal history information. (Penal Code
§ 11105(a).)
Existing law authorizes DOJ to furnish state summary criminal
history information to the following specified entities: the
courts of California; peace officers, as defined; district
attorneys of California; prosecuting city attorneys; city
attorneys pursuing civil gang injunctions or drug abatement
actions; probation officers of California; parole officers of
California; a public defender or attorney of record when
representing a person in proceedings upon a petition for a
certificate of rehabilitation and pardon; a public defender or
attorney of record when representing a person in a criminal
case, or a parole, mandatory supervision, or postrelease
community supervision revocation or revocation extension
proceeding, and if authorized access by statutory or decisional
law; any agency, officer, or official of the state if the
criminal history information is required to implement a statute
or regulation that expressly refers to specific criminal conduct
applicable to the subject person of the state summary criminal
history information, and contains requirements or exclusions, or
both, expressly based upon that specified criminal conduct; any
city or county, city and county, district, or any officer or
official thereof if access is needed in order to assist that
agency, officer, or official in fulfilling employment,
certification, or licensing duties, and if the access is
specifically authorized by the city council, board of
supervisors, or governing board of the city, county, or district
if the criminal history information is required to implement a
statute, ordinance, or regulation that expressly refers to
specific criminal conduct applicable to the subject person of
the state summary criminal history information, and contains
requirements or exclusions, or both, expressly based upon that
specified criminal conduct; the subject of the state summary
criminal history information; any person or entity when access
is expressly authorized by statute if the criminal history
information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to
the subject person of the state summary criminal history
information, and contains requirements or exclusions, or both,
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expressly based upon that specified criminal conduct; Health
officers of a city, county, city and county, or district when in
the performance of their official duties preventing the spread
of communicable diseases; any managing or supervising
correctional officer of a county jail or other county
correctional facility; any humane society, or society for the
prevention of cruelty to animals for the appointment of humane
officers; local child support agencies; county child welfare
agency personnel who have been delegated the authority of county
probation officers to access state summary criminal history
information for the specified purposes; the court of a tribe, or
court of a consortium of tribes, that has entered into an
agreement with the state as specified; child welfare agency
personnel of a tribe or consortium of tribes that has entered
into an agreement with the state as specified; an officer
providing conservatorship investigations; a person authorized to
conduct a guardianship investigation; and, a humane officer for
the purposes of performing his or her duties. (Penal Code §
11105 (b).)
Existing law states that DOJ may furnish state summary criminal
history information, when specifically authorized, and
federal-level criminal history information upon a showing of
compelling need to any of the specified agencies, 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, the employer must follow restrictions listed
in the Labor Code. (Penal Code § 11105(c).)
Existing law authorizes any local criminal justice agency as
defined to compile local summary criminal history information
and requires the local criminal justice agency to furnish this
information to any of the specified entities. (Penal Code §
13300.)
Existing law provides that a "transportation network company" is
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)
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This bill provides that a transportation network company shall
conduct comprehensive criminal background checks for each
participating driver that shall include local, state, and
federal law enforcement records.
This bill provides that a transportation network company shall
not contract with, employ, or retain a driver if he or she is
required by any law to register as a sex offender or has bene
convicted of any of the following: any violent felony, sexual
offense, nonfelony violent crime, identity theft, act of fraud,
act of terror, or within the previous seven years, any crime
involving property damage, theft, or driving under the influence
of alcohol or drugs.
This bill provides that a transportation network company that
violates, or fails to comply with, this section is subject to a
penalty of not less than $500 nor more than $50,000 for each
offense.
Existing law provides that an investigative consumer reporting
agency shall only furnish an investigative report under the
specified purpose including that it is intended to be used for
information for employment purposes. (Civil Code § 1786.12)
This bill provides that notwithstanding the above, an
investigative consumer reporting agency may furnish an
investigative consumer report to a transportation network
company about a person seeking to become a participating driver,
regardless of whether the participating driver is to be an
employee or an independent contractor of the transportation
network company.
Existing law prohibits a consumer reporting agency from
furnishing specified items including records of arrest,
indictment, information, misdemeanor complaint, or conviction of
a crime that is more than 7 years old. (Civil Code § 1786.18
(a)(7))
This bill provides that the above shall not apply to an
investigative consumer report furnished to a transportation
network company.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
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Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
AB 1289 requires Transportation Network Companies
(TNCs) to conduct comprehensive criminal background
checks on prospective drivers. Additionally the bill
prohibits TNCs from employing drivers with violent,
sexual, driving under the influence (DUI) or other
specified offenses and imposes a fine of up to $50,000
for each violation.
As recently as last year, District Attorneys in Los
Angeles and San Francisco uncovered 25 participating
TNC drivers with convictions for murder, assault, DUI,
and other criminal offenses.
AB 1289 will assist TNCs uncover the complete criminal
history of prospective drivers and will help ensure the
safety of passengers utilizing TNC services.
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2. Non-fingerprint Based Background Check for Transportation
Network Drivers
This bill requires a transportation network company (Uber, Lyft,
etc.) to conduct a "comprehensive criminal background check" for
each participating driver. The background check shall include
local, state and federal law enforcement records. It also
prohibits the hiring of people with specified offenses on their
record and provides for a fine if a company fails to do the
background check.
a. Not Fingerprint Based
Historically, this Committee has not passed bills providing
for background checks that are not finger-print based.
Name based checks are not as reliable as similar names
exist and there is not check on the information. This bill
does not require a fingerprint based check, does this cause
any concern that people will be rejected from the
opportunity to drive for one of these companies possibly on
a flawed background check?
b. Comprehensive Check
The bill requires a "comprehensive background check", since
this is not fingerprint based it is not clear what
"comprehensive background check" means. Can they use any
private company that claims to provide background checks?
c. Prohibited Offenses
This bill prohibits contracting with or employing a driver
if he or she is required to register as a sex offender, or
has been convicted of any violent felony, sex offense,
nonfelony violent crime, identity theft, act of fraud, act
of terror row within the previous 7 years any crime
involving property damage, theft, or DUI.
Violent felony is a term of art and is a specific list of
crimes. How are these companies supposed to know what a
"nonfelony violent crime" is? Do they just rely on their
own thoughts? Do they have to figure out what it was the
person was charged with and the facts of the case? They
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can face a large fine if they fail to comply with the
section. Is the information they get from the
non-fingerprint based checks something that the
transportation network company will be able to interpret
enough to determine whether a criminal history falls in any
of these prohibited areas?
d. Arrest Records
When the Department of Justice releases a criminal history
based on a fingerprint based check it may not release
arrest information unless and until they can make a
determination as to the final disposition of the arrest.
This to make sure that a record is not released if the
charges were dropped, the wrong person was arrested, the
person was acquitted or any other situation where an arrest
record should not be used against a person.
Because it is not a DOJ, fingerprint based check, this bill
would not stop a transportation network company from
receiving an arrest record. The bill states they should
not hire a person with specified convictions but how should
they react to arrest records that may not have a
disposition with it. Should they even be able to see
anything other than convictions and if so how can we assure
that they are not given that information.
Actually, this bill creates an exception to the Civil Code
provision prohibiting an investigative consumer reporting
agency from furnishing specified items including records of
arrest, indictment, information, misdemeanor complaint, or
conviction of a crime that is more than 7 years old.
Again, what is a transportation network company supposed to
do with anything short of a conviction? Couldn't that
prejudice a company against an individual even if the
arrest is years old?
-- END -
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