BILL NUMBER: AB 2858 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 13, 2004
AMENDED IN ASSEMBLY APRIL 22, 2004
INTRODUCED BY Assembly Member Ridley-Thomas
FEBRUARY 20, 2004
An act to add Chapter 2.8 (commencing with Section 12330)
to Title 2 of Part 4 of the Penal Code, relating to the Firearm
Victims' Reimbursement Fund. amend Section 5374 of,
and to add Section 5384.7 to, the Public Utilities Code, relating to
charter-party carriers of passengers.
LEGISLATIVE COUNSEL'S DIGEST
AB 2858, as amended, Ridley-Thomas. Firearm Victims'
Reimbursement Fund Charter-party carriers of
passengers: drivers and key employees: background checks .
The Transportation Security Administration of the United States
Department of Transportation, administered by the Under Secretary of
Transportation for Security, is responsible for carrying out measures
to ensure aviation security, including hiring, training, and
retention of personnel for the security screening of passengers and
baggage and conducting background checks for individuals with access
to secure areas of airports regularly serving an air carrier holding
a certificate issued by the Secretary of Transportation. Individuals
with specified criminal backgrounds or other factors as determined by
the Under Secretary, are disqualified from employment with an air
carrier or airport operator, if they will have access to secured
areas. The Under Secretary is required to adopt measures to improve
secured-area access control, including working with airport operators
to strengthen access control points in secured areas, including air
traffic control operations areas, maintenance areas, crew lounges,
baggage handling areas, concessions, and catering delivery areas.
The California Constitution establishes the Public Utilities
Commission, with jurisdiction over all public utilities and
authorizes the Legislature, unlimited by the other provisions of the
Constitution, to confer additional authority and jurisdiction upon
the commission that is cognate and germane to the regulation of
public utilities. Charter-party carriers of passengers are subject
to the jurisdiction and control of the commission under the Passenger
Charter-Party Carriers' Act. The act requires a charter-party
carrier of passengers to obtain from the commission a certificate
that public convenience and necessity require the operation, except
that certain specific transportation services may be conducted under
authority of a permit issued by the commission. The act prohibits
the commission from issuing or renewing a permit unless the applicant
has met specified requirements.
This bill would require the commission to adopt regulations
establishing standards and procedures to investigate the criminal
background of candidates seeking certificates for employment as
drivers or key employees, as defined, with charter-party carriers of
passengers that provide passenger transportation to and from
airports. The bill would require the commission to restrict a
charter-party carrier of passengers to employment of individuals
approved for that employment by the commission, based on successful
completion of the criminal background investigation. The bill would
impose civil penalties for a violation of that employment
restriction. The bill would require the commission to issue an
identification credential to each applicant that successfully
completes that criminal background investigation process and would
require that all drivers employed by a charter-party carrier of
passengers carry the identification credential at all times on
airport property. The bill would impose civil penalties for a
failure to produce the credential at the request of airport law
enforcement officers. Repeated violations would be grounds for
revocation of the carrier's permit. The bill would require the
commission to provide for a fee to be charged of the charter-party
carrier of passengers and collected by the commission, sufficient to
cover certain related costs.
The bill would prohibit the commission from issuing or renewing a
permit for a charter-party carrier applicant providing transportation
to and from airports unless it certifies its drivers have
successfully completed a criminal history background check and have
been issued an identification credential.
The bill would prohibit employees and agents of a charter-party
carrier from communicating to any other person any information
related to the disqualification of a driver or key employee, and
would authorize a person disqualified from employment pursuant to the
provisions of the bill to request a hearing by the commission to
challenge the accuracy of the criminal background investigation.
A violation of the act or of an order or other requirement of the
commission in enforcing that act is a crime.
Because the provisions of this bill would be a part of the act and
a violation of the bill's provisions or of an order or other
requirement of the commission implementing those provisions would be
a crime, the bill would impose a state-mandated local program by
creating new crimes.
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.
Existing law generally regulates the sale of ammunition and
firearms.
This bill would, subject to exceptions, impose a fee of 10% of the
retail sale price on every munition and a fee of 5% of the retail
sale price on every handgun, as defined, sold at retail. The fees
would be paid by retailers to the State Board of Equalization, and
deposited in the Firearm Victims' Reimbursement Fund. The Firearm
Victims' Reimbursement Fund would be used, upon appropriation, to pay
firearm-injury victims for uncompensated pecuniary losses and to pay
for related administrative costs, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 2.8 (commencing with Section 12330)
SECTION 1. It is the intent of the Legislature to reaffirm its
commitment to homeland security as it relates to charter-party
carriers of passengers and their employees who drive passengers to
and from airports. The purpose of this act is to ensure that
procedures and regulations are in place consistent with the airport
security programs operated by airports in this state, to assure the
traveling public that drivers or key employees of privately engaged
carriers have been through security clearances, and to provide
uniformity in credentialing among charter-party carriers of
passengers.
SEC. 2. Section 5374 of the Public Utilities Code is amended to
read:
5374. (a) Before a permit is issued or renewed, the commission
shall require the applicant to establish reasonable fitness and
financial responsibility to initiate and conduct or continue to
conduct the proposed or existing transportation services. The
commission shall not issue or renew a permit pursuant to this chapter
, unless the applicant meets both
all of the following requirements:
(1) It certifies on a form acceptable to the commission that the
applicant will maintain its vehicles in a safe operating condition
and in compliance with the Vehicle Code and with regulations
contained in Title 13 of the California Code of Regulations relative
to motor vehicle safety.
(2) It provides for a mandatory controlled substance and alcohol
testing certification program as adopted by the commission pursuant
to Section 1032.1.
(3) A charter-party carrier applicant providing transportation to
and from airports, certifies its drivers and key employees have
successfully completed a criminal history background check and have
been issued an identification credential in accordance with Section
5384.7. For purposes of this section, "key employees" mean the owner
or partner of the charter-party carrier or, if the carrier is a
corporation, the officers and directors of the corporation.
(b) (1) Before a certificate is issued or renewed, the commission
shall require the applicant to establish reasonable fitness and
financial responsibility to initiate and conduct or continue to
conduct the proposed or existing transportation services. The
commission shall not issue or renew a certificate pursuant to this
chapter , unless the applicant meets all of the following
requirements:
(A) It is financially and organizationally capable of conducting
an operation that complies with the rules and regulations of the
Department of the California Highway Patrol governing highway safety.
(B) It is committed to observing the hours of service regulations
of state and, where applicable, federal law, for all persons, whether
employees or subcarriers, operating vehicles in transportation for
compensation under the certificate.
(C) It has a preventive maintenance program in effect for its
vehicles used in transportation for compensation that conforms to
regulations of the Department of the California Highway Patrol in
Title 13 of the California Code of Regulations.
(D) It participates in a program to regularly check the driving
records of all persons, whether employees or subcarriers, operating
vehicles used in transportation for compensation requiring a class B
driver's license under the certificate.
(E) It has a safety education and training program in effect for
all employees or subcarriers operating vehicles used in
transportation for compensation.
(F) It will maintain its vehicles used in transportation for
compensation in a safe operating condition and in compliance with the
Vehicle Code and with regulations contained in Title 13 of the
California Code of Regulations relative to motor vehicle safety.
(G) It has filed with the commission the certificate of workers'
compensation insurance coverage or statement required by Section
5378.1.
(H) It has provided the commission an address of an office or
terminal where documents supporting the factual matters specified in
the showing required by this subdivision may be inspected by the
commission and the Department of the California Highway Patrol.
(I) It provides for a mandatory controlled substance and alcohol
testing certification program as adopted by the commission pursuant
to Section 1032.1.
(2) With respect to subparagraphs (B) and (F) of paragraph (1),
the commission may base a finding on a certification by the
commission that an applicant has filed, with the commission, a sworn
declaration of ability to comply and intent to comply.
(c) In addition to the requirements in subdivision (b), class A
and class B charter-party carriers shall meet all other state and,
where applicable, federal regulations as prescribed.
(d) The commission may delegate to its executive director or
that executive director's his or her
designee the authority to renew, or authorize the transfer of,
charter-party carrier permits or certificates and to make the
findings specified in subdivision (b) that are necessary to that
delegated authority.
SEC. 3. Section 5384.7 is added to the Public Utilities Code, to
read:
5384.7. (a) The commission shall adopt regulations, in accordance
with this section and Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, to establish
standards and procedures to investigate the background of candidates
seeking certificates for employment as drivers or key employees with
charter-party carriers of passengers that provide passenger
transportation to and from airports. These regulations shall direct
the Carriers Branch of the commission, which licenses charter-party
carriers of passengers, to use criminal history information to
determine whether applicants for employment as drivers or key
employees have a conviction for a qualifying felony crime that would
disqualify them from being hired as drivers or key employees because
they would be a threat to the safety of the public if employed as
drivers or key employees of the charter-party carrier.
(b) The commission shall provide, by regulation, that a
fingerprint-based criminal background investigation be used to
determine past convictions for the following specified criminal acts
that disqualify the applicant for employment in this capacity:
(1) Unlawful transportation of a hazardous material (49 U.S.C.
Sec. 46312).
(2) Carrying a weapon or explosive aboard an aircraft (49 U.S.C.
Sec. 46505).
(3) Unlawful entry into an aircraft or airport area that serves
air carriers or foreign air carriers contrary to established security
requirements (49 U.S.C. Sec. 46314).
(4) Destruction of an aircraft or aircraft facility (18 U.S.C.
Sec. 32).
(5) Violence at international airports (18 U.S.C. Sec. 37).
(6) Unlawful possession, use, sale, distribution, or manufacture
of an explosive, incendiary device, or assault weapon.
(7) Felony arson.
(8) Hate crime, as described in paragraph (2) of subdivision (b)
of Section 628.1 of the Penal Code, including, but not limited to,
offenses in Title 11.6 (commencing with Section 422.6) of Part 1 of
the Penal Code.
(9) Conspiracy or attempt to commit any of the criminal acts
listed in paragraphs (1) to (8), inclusive.
(c) The commission shall also require, by regulation, that the
criminal background investigation be used to determine the existence
of any outstanding felony warrants for the arrest of the applicant
for employment. If the criminal background investigation reveals one
or more felony warrants, the commission shall notify the appropriate
law enforcement agency of the application.
(d) The commission shall ensure, by regulation, compliance with
Section 50.12 of Title 28 of the Code of Federal Regulations as it
exists on January 1, 2003, with regard to records of the Federal
Bureau of Investigation, and provide similar requirements with regard
to state records.
(e) The commission shall require, by regulation, that a
charter-party carrier of passengers may only employ an individual as
a driver of passengers to or from airports or as a key employee if
that individual has been approved for that employment by the
commission, based on successful completion of the criminal background
investigation. This requirement shall apply retroactively to
drivers and key employees employed on or after January 1, 2003, and
to all future applicants. Employment of individuals not approved as
drivers or key employees by a charter-party carrier of passengers
shall constitute a violation of the regulations and subject the
carrier to civil penalties not to exceed two thousand dollars
($2,000) per incident. Repeated violations of this nature shall be
grounds for revocation of the carrier's permit.
While a criminal background investigation is pending, a driver or
key employee may be employed by the carrier. This section does not
prohibit a charter-party carrier from employing a driver who is
disqualified pursuant to this article from being employed by the
carrier in a capacity that does not involve driving passengers to and
from the airport. A charter-party carrier subject to this article
shall inform an applicant for employment as a driver or key employee,
both on the employment application and through oral communication,
of the requirements of this chapter and the consequences that may
occur if the driver or key employee is disqualified from employment.
If the charter-party carrier is a subcarrier that does not employ
any drivers other than the holder of the permit to operate as a
charter-party carrier, the subcarrier shall be treated as an employee
of the parent carrier for the purposes of complying with the
criminal background check requirements of this section and Section
5374.
(f) The commission shall require, by regulation, that
charter-party carriers of passengers require applicants who are
offered employment as a driver of a motor vehicle providing passenger
transportation to and from airports or as a key employee, to submit
fingerprints and other pertinent information, as required by the
regulations, to the commission for the purpose of obtaining criminal
background information.
(g) The commission shall transmit the fingerprints to the
Department of Justice. The Department of Justice shall conduct the
check, and forward the request for federal level criminal offender
record information to the Federal Bureau of Investigation. The
Department of Justice shall provide the following information to the
commission:
(1) Every conviction rendered against the applicant.
(2) Every arrest for an offense for which the Department of
Justice has determined that the applicant is presently awaiting
trial, or whether the applicant is incarcerated or has been released
on bail or on his or her own recognizance pending trial.
(3) Every warrant for the arrest of the applicant.
(h) The commission shall review all information received from the
charter-party carrier of passengers and the Department of Justice
pursuant to the regulations. All information received by the
commission shall be held as confidential, except that if employment
is to be denied based on criminal history information, the commission
shall notify the charter-party carrier of passengers of the
applicant's disqualification, and provide a copy of the history and
an explanation of the denial to the applicant. Employees and agents
of a charter-party carrier of passengers are prohibited from
communicating to any other person any information related to the
disqualification of a driver or key employee. A person who is
disqualified pursuant to this section may request a hearing by the
commission to challenge the accuracy of the criminal background
investigation and to present evidence that, notwithstanding the
grounds for disqualification, he or she is fully rehabilitated and
should be permitted employment. The commission may grant any relief
it deems appropriate, including restoration of the right of
employment.
(i) The commission shall provide, by regulation, that an
identification credential be issued to each applicant that
successfully completes that criminal background investigation
process.
(j) The commission shall provide, by regulation, that all drivers
and key employees employed by a charter-party carrier of passengers
shall carry the identification credential at all times on airport
property, and shall produce the credential for inspection upon
request of airport law enforcement officers. Failure to produce the
credential at the request of airport law enforcement officers shall
constitute a violation of the regulations and subject the driver and
the carrier to civil penalties not to exceed five hundred dollars
($500) per incident. Repeated violations of this nature shall be
grounds for revocation of the carrier's permit.
(k) The commission shall provide, by regulation, for a fee to be
charged of the charter-party carrier of passengers, to be collected
by the commission, sufficient to cover the costs of the commission
and Department of Justice for processing fingerprint records,
reviewing documents, and issuing identification credentials pursuant
to this section. An employee or applicant for employment may not be
charged a fee for the performance of the criminal background check
required by this section.
(l) For the purposes of this section, "key employees" mean the
owner or partner of the charter-party carrier or, if the carrier is a
corporation, the officers and directors of the corporation.
SEC. 4. 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. is added to Title 2 of Part 4 of the
Penal Code, to read:
CHAPTER 2.8. FIREARM VICTIMS' REIMBURSEMENT FUND
12330. (a) (1) There shall be imposed a fee upon the retailer for
all munitions sold at retail at the rate of 10 percent of the retail
sale price for each munition sold at retail in this state on or
after January 1, 2005.
(2) Except as provided in paragraph (1), the fee shall also be
imposed upon and paid by the purchaser of munitions for munitions
purchased outside of the state and that are intended to be stored or
used in the state.
(3) There shall be imposed a fee upon the retailer for all
handguns sold at retail at the rate of 5 percent of the retail sale
price for each handgun sold at retail in this state on or after
January 1, 2005.
(4) The fees imposed pursuant to this section shall not exceed
the costs authorized for expenditure pursuant to subdivisions (f) and
(g).
(b) The fees imposed by this section shall be administered and
enforced by the State Board of Equalization.
(c) (1) For purposes of this section, "munition" means either a
finished munition product consisting of a projectile with its fuse,
propelling charge, or primer, or a primer component, as applicable.
"Munition" does not include a BB or a pellet commonly used in an air
rifle or pistol, or "blank" munitions which lack a projectile.
(2) For purposes of this section, "handgun" means a handgun, as
defined in Section 12001, that is on the approved list pursuant to
Section 12131.
(d) (1) The fees provided for in this section may not be imposed
upon any munition or primer component, or handgun purchased by any
peace officer required to carry a firearm while on duty, or upon any
governmental law enforcement agency employing that officer, or upon
any government agency purchasing those items on behalf of a law
enforcement agency, for use in the normal course of employment.
(2) The fees provided for in this section shall not be imposed
upon purchasers who have a valid California hunting license, and are
purchasing ammunition intended to be used in a rifle or shotgun, as
those terms are defined in Section 12020. The retailer shall
complete and maintain a purchaser's certificate, in a form and for a
period determined by the Board of Equalization, documenting and
verifying the purchaser's qualifications for the exemption from the
fees pursuant to this paragraph.
(3) The fees imposed pursuant to this section shall not be
imposed on any of the following transactions:
(A) A transaction conducted pursuant to Section 12082 or 12084 in
order to comply with subdivision (d) of Section 12072.
(B) A transaction that complies with an exemption from the
requirements of subdivision (d) of Section 12072.
(C) A transaction conducted pursuant to paragraph (2) of
subdivision (f) of Section 12072.
(e) All amounts required to be paid to the state under this
section shall be paid to the State Board of Equalization in the form
of remittances that are payable to that board and are separate from
the remittance of any other fee. The board shall transmit the
payments to the Treasurer to be deposited in the State Treasury to
the credit of the Firearm Victims' Reimbursement Fund, which is
hereby created.
(f) The Firearm Victims' Reimbursement Fund may be used, upon
appropriation by the Legislature, for the following purposes:
(1) To pay the State Board of Equalization for the board's cost of
implementation and administration of this section, provided however,
that amount appropriated for those purposes may not exceed 10
percent of the total amount of moneys deposited in the fund for that
fiscal year.
(2) To pay the California Victims Compensation and Government
Claims Board for the board's cost of implementation and
administration of this section, provided however, that amount
appropriated for those purposes may not exceed 5 percent of the total
amount of moneys deposited in the fund for that fiscal year.
(3) To compensate those persons who are injured by firearms and
who suffer uncompensated pecuniary loss, under the guidelines of the
federal Victims of Crime Act, provided however, that no person who is
injured by a firearm while committing or attempting to commit a
crime may be eligible for compensation pursuant to this section.
(g) The fund shall be administered by the California Victims
Compensation and Government Claims Board in a similar manner and for
similar purposes as the board administers the Restitution Fund.
(h) If the amount credited to the Firearm Victims' Reimbursement
Fund exceeds the amount necessary to fully cover reimbursable costs
pursuant to subdivision (f), the State Board of Equalization shall
temporarily adjust, for the following one-year period, the fee to be
charged pursuant to subdivision (a) to an amount estimated to deplete
any surplus in the fund during the next calendar year.
(i) The Board of Equalization and the California Victims
Compensation and Government Claims Board shall adopt regulations
necessary to implement this chapter.
12331. For purposes of this chapter, the State Board of
Equalization may collect the fees pursuant to the Fee Collection
Procedures Law, Part 30 (commencing with Section 55001) of Division 2
of the Revenue and Taxation Code.
12332. (a) The fees imposed by this chapter and the amounts
thereof required to be collected by munitions and handgun retailers
are due quarterly on or before the last day of the month next
succeeding each calendar quarter.
(b) On or before the last day of the month following each calendar
quarter, a return for the preceding quarterly period shall be filed
with the State Board of Equalization in a form as the board shall
prescribe. The return shall be signed by the person required to file
the return or by his or her authorized agent.
12333. A person who is not a retailer, and who purchases
munitions pursuant to paragraph (2) of subdivision (a) of Section
12330, shall, not more than 90 days after the transaction, pay the
fees due and file a form as the Board of Equalization may prescribe
that is signed by that person.