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Enrolled Version - Final Version House Bill 4228 History

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WEST virginia legislature

2016 regular session

ENROLLED

Committee Substitute

for

House Bill 4228

By Delegates Cowles, B. White, Shott, Espinosa,
 E. Nelson, Howell, Upson, Trecost, Reynolds Gearheart and Hamrick

[Passed March 5, 2016; in effect July 1, 2016.]

 AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article designated §17-29-1, §17-29-2, §17-29-3, §17-29-4, §17-29-5, §17-29-6, §17-29-7, §17-29-8, §17-29-9, §17-29-10, §17-29-11, §17-29-12, §17-29-13, §17-29-14, §17-29-15, §17-29-16, §17-29-17, §17-29-18 and §17-29-19, all relating to transportation network companies; providing definitions; declaring not common carriers, taxi cabs or for-hire vehicle services; requiring permits from the Division of Motor Vehicles for TNCs to operate in the state; outlining requirements for such permits including payment of an annual permit fee; requiring an agent for service of process; providing for fare collection, identification of TNC vehicles and drivers, and electronic receipts; requiring financial responsibility and disclosure thereof; providing for different level of financial responsibility based on circumstances; requiring disclosures of financial responsibility to TNC drivers; allowing automobile insurers to exclude certain coverages; defining the relationship between drivers and transportation network companies; providing that workers compensation coverage not required under certain circumstances; requiring transportation network companies to adopt a policy of zero tolerance of alcohol or drug use for drivers; requiring for certain record keeping practices; providing requirements for drivers; requiring background checks and other requirements before drives may accept trip requests for TNCs; establishing criteria which disqualify persons from acting as TNC drivers; requiring vehicle inspections; requiring transportation network companies to adopt policies prohibiting solicitation or acceptance of cash payments and a policy of nondiscrimination; prohibiting additional charges for providing services to persons with physical disabilities; requiring customer records to be kept; prescribing certain tax requirements, limitations and exemptions; and prohibiting certain political subdivisions from imposition of licensure or other requirements or fees.

Be it enacted by the Legislature of West Virginia:


 That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §17-29-1, §17-29-2, §17-29-3, §17-29-4, §17-29-5, §17-29-6, §17-29-7, §17-29-8, §17-29-9, §17-29-10, §17-29-11, §17-29-12, §17-29-13, §17-29-14, §17-29-15, §17-29-16, §17-29-17, §17-29-18 and §17-29-19, all to read as follows:


ARTICLE 29. TRANSPORTATION NETWORK COMPANIES.

§17-29-1.  Definitions.

As used in this article:

(1) "Personal vehicle" means a vehicle that is:

(a)  Used by a transportation network company driver to provide a prearranged ride;

(b) Owned, leased or otherwise authorized for use by the transportation network company driver; and

(c) Not a taxicab or for-hire vehicle.

(2) "Digital network” means any online-enabled application, software, website or system offered or utilized by a transportation network company that enables the prearrangement of rides with transportation network company drivers.

(3) "Transportation network company" means a corporation, partnership, sole proprietorship, or other entity that is licensed pursuant to this article and operating in West Virginia that uses a digital network to connect transportation network company riders to transportation network company drivers who provide prearranged rides. A transportation network company does not control, direct or manage the personal vehicles or transportation network company drivers that connect to its digital network, except where agreed to by written contract.

(4) “Transportation network company driver" or "driver" means an individual who:

(A) Receives connections to potential passengers and related services from a  transportation network company in exchange for payment of a fee to the  transportation network company; and

(B) Uses a personal vehicle to offer or provide a prearranged ride to transportation network company riders upon connection through a digital network controlled by a transportation network company in return for compensation or payment of a fee.

(5) "Transportation network company rider" or "rider" means an individual or persons who use a  transportation network company’s  digital network to connect with a  transportation network company driver who provides prearranged rides to the rider in the driver’s personal vehicle between points chosen by the rider.

(6) "Prearranged ride" means the provision of transportation by a driver to a transportation network company rider, beginning when a driver accepts a transportation network company rider’s request for a ride through a digital network controlled by a transportation network company, continuing while the driver transports the requesting rider, and ending when the last requesting rider departs from the personal vehicle. A prearranged ride does not include:

(A) Transportation provided using a taxi, limousine or other for-hire vehicle; or

(B) Transportation provided under a ridesharing arrangement, as defined in section one, article twenty-two, chapter seventeen-c of this code or any other type of arrangement or service in which the driver receives a fee that does not exceed the driver’s costs associated with providing the ride.


§17-29-2.  Not other carriers.

Transportation network companies or  transportation network company drivers are not common carriers by motor vehicle or contract carriers by motor vehicle, or motor carriers, as defined in section two, article one, chapter twenty-four-a of this code, nor do they provide taxicab or for-hire vehicle services.


§17-29-3. Transportation Network Company permit required.

(a) A person may not operate a transportation network company in West Virginia without first having obtained a permit from the Division of Motor Vehicles.

(b) The Division of Motor Vehicles shall issue a permit to each applicant that:

(1) Provides proof of an agent for service of process in the State of West Virginia to the Division of Motor Vehicles in accordance with section four of this article;

(2) Provides a copy of a certificate of insurance maintained by the transportation network company in accordance with section eight of this article;

(3) Provides a copy of the transportation network company’s zero tolerance for drug or alcohol use policy to the Division of Motor Vehicles in accordance with section twelve of this article;

(4) Provides a copy of the transportation network company’s policy prohibiting solicitation or acceptance of street hails to the Division of Motor Vehicles in accordance with section fifteen of this article;

(5) Provides a copy of the transportation network company’s policy prohibiting solicitation or acceptance of cash payments from riders to the Division of Motor Vehicles in accordance with section sixteen of this article;

(6) Provides a copy of the  transportation network company’s policy of nondiscrimination with respect to riders and potential riders to the Division of Motor Vehicles in accordance with section seventeen of this article; and

(7) Has paid an annual permit fee of $1,000 to the Division of Motor Vehicles.

(c) Any fees collected under the provisions of this article shall be deposited into the Motor Vehicle Fees Fund established in accordance with section twenty-one, article two, chapter seventeen-a of this code. The Division of Motor Vehicles shall use the fees collected for the payment of the costs and expenses necessary for the administration of this article.


§17-29-4.  Agent.

A transportation network company shall maintain an agent for service of process in this state.


§17-29-5. Fare collected for services.

On behalf of a transportation network company driver, a transportation network company may charge a fare for the services provided to riders: Provided, that if a fare is collected from a rider, the transportation network company shall disclose to the rider the fare calculation method on its website or within the software application service. The transportation network company shall also provide riders with the applicable rates being charged and the option to receive an estimated fare before the rider enters the transportation network company driver’s vehicle.


§17-29-6. Identification of transportation network company vehicles and drivers.

The transportation network company’s software application or website shall display a picture of the transportation network company driver and the license plate number of the motor vehicle utilized for providing the prearranged ride before the rider enters the transportation network company Driver’s vehicle.


§17-29-7. Electronic receipt.

Within a reasonable period of time following the completion of a prearranged ride, a transportation network company shall transmit an electronic receipt to the rider on behalf of the transportation network company driver that lists:

(a) The origin and destination of the prearranged ride;

(b) The total time and distance of the prearranged ride; and

(c) An itemization of the total fare paid, if any.


§17-29-8. Financial responsibility of transportation network companies.

(a) On or before July 1, 2016, and thereafter, a transportation network company driver or transportation network company on the driver’s behalf shall maintain primary automobile insurance that recognizes that the driver is a transportation network company driver or otherwise uses a vehicle to transport passengers for compensation and covers the driver:

(1) While the transportation network company driver is logged on to the transportation network company’s digital network; or

(2) While the driver is engaged in a prearranged ride.

(b) The following automobile insurance requirements apply while a participating  transportation network company driver is logged on to the  transportation network company’s  digital network and is available to receive transportation requests, but is not engaged in a prearranged ride:

(1) Primary automobile liability insurance in the amount of at least $50,000 for death and bodily injury per person, $100,000 for death and bodily injury per incident and $25,000 for property damage; and

(2) Uninsured and underinsured motorists’ coverage as required in section thirty-one, article  six, chapter thirty-three of this code.

(3) The coverage requirements of this subsection may be satisfied by any of the following:

(A) Automobile insurance maintained by the transportation network company driver; or

(B) Automobile insurance maintained by the transportation network company; or

(C) Any combination of paragraphs (A) and (B) of this subdivision.

(c) The following automobile insurance requirements apply while a transportation network company driver is engaged in a prearranged ride:

(1) Primary automobile liability insurance that provides at least $1,000,000 for death, bodily injury and property damage; and

(2) Uninsured and underinsured motorists’ coverage as required in section thirty-one, article  six, chapter thirty-three of this code.

(3) The coverage requirements of this subsection (c) may be satisfied by any of the following:

(A) Automobile insurance maintained by the transportation network company driver; or

(B) Automobile insurance maintained by the transportation network company; or

(C) Any combination of paragraphs (A) and (B) of this subdivision.

(d) If insurance maintained by a driver in subsection (b) or (c) has lapsed or does not provide the required coverage, insurance maintained by a transportation network company shall provide the coverage required under this section beginning with the first dollar of a claim and have the duty to defend such claim.

(e) Coverage under an automobile insurance policy maintained by the transportation network company shall not be dependent on a personal automobile insurer first denying a claim nor shall a personal automobile insurance policy be required to first deny a claim.

(f) Insurance required under this section may be placed with an insurer authorized to do business in this state or with a surplus lines insurer eligible under section five, article twelve-c, chapter thirty-three of this code that has a credit rating of no less than “A-” from A.M. Best or “A” from Demotech or similar rating from another rating agency recognized by the Insurance Commissioner.

(g) Insurance satisfying the requirements of this section shall be deemed to satisfy the financial responsibility requirement for a motor vehicle under article four, chapter seventeen-d of this code.

(h) A transportation network company driver shall carry proof of coverage satisfying subsections (b) and (c), section eight of this article with him or her at all times during his or her use of a personal vehicle in connection with a transportation network company’s digital network. In the event of an accident, a transportation network company driver shall provide this insurance coverage information to the directly interested parties, automobile insurers and investigating police officers, upon request pursuant  to  section four, article two-a, chapter seventeen-d of this code. Upon such request, a  transportation network company driver shall also disclose to directly interested parties, automobile insurers, and investigating police officers, whether he or she was logged on to the  transportation network company’s  digital network or on a prearranged ride at the time of an accident.


§17-29-9. Disclosures.

The transportation network company shall disclose in writing to transportation network company drivers the following before they are allowed to accept a request for a Prearranged Ride on the transportation network company’s digital network:

(1) The insurance coverage, including the types of coverage and the limits for each coverage that the  transportation network company provides while the  transportation network company driver uses a personal vehicle in connection with a transportation network company’s  digital network; and

(2) That the  transportation network company driver’s own automobile insurance policy might not provide any coverage while the driver is logged on to the transportation network company’s  digital network and is available to receive transportation requests or is engaged in a prearranged ride, depending on its terms.


§17-29-10. Automobile insurance provisions.

(a) Insurers that write automobile insurance in this state may exclude any and all coverage afforded under the policy issued to an owner or operator of a personal vehicle for any loss or injury that occurs while a driver is logged on to a  transportation network company’s  digital network or while a driver provides a prearranged ride. This right to exclude all coverage may apply to any coverage included in an automobile insurance policy including, but not limited to:

(1) Liability coverage for bodily injury and property damage;

(2) Uninsured and underinsured motorist coverage,

(3) Medical payments coverage;

(4) Comprehensive physical damage coverage; and

(5) Collision physical damage coverage.

Such exclusions apply notwithstanding any requirement under article four, chapter seventeen-d of this code. Nothing in this section implies or requires that a personal automobile insurance policy provide coverage while the driver is logged on to the  transportation network company’s  digital network, while the driver is engaged in a prearranged ride or while the driver otherwise uses a vehicle to transport passengers for compensation. Nothing shall be deemed to preclude an insurer from providing coverage for the transportation network company driver’s vehicle, if it so chooses to do so by contract or endorsement.

(b) Automobile insurers that exclude the coverage described in section eight of this article have no duty to defend or indemnify any claim expressly excluded thereunder. Nothing in this article  invalidates or limits an exclusion contained in a policy, including any policy in use or approved for use in this state prior to the enactment of this article that excludes coverage for vehicles used to carry persons or property for a charge or available for hire by the public. An automobile insurer that defends or indemnifies a claim against a driver that is excluded under the terms of its policy shall have a right of contribution against other insurers that provide automobile insurance to the same driver in satisfaction of the coverage requirements of section eight of this article at the time of loss.

 (c) In a claims coverage investigation, transportation network companies and any insurer providing coverage under section eight of this article shall cooperate to facilitate the exchange of relevant information with directly involved parties and any insurer of the transportation network company driver if applicable, including the precise times that a transportation network company driver logged on and off of the transportation network company’s digital network in the twelve hour period immediately preceding and in the twelve hour period immediately following the accident and disclose to one another a clear description of the coverage, exclusions and limits provided under any automobile insurance maintained under section eight of this article. 


§17-29-11. Limitation on transportation network companies.

(a) Drivers are independent contractors and not employees of the transportation network company if all of the following conditions are met:

(1) The transportation network company does not prescribe specific hours during which a transportation network company Driver must be logged into the transportation network company’s digital network;

(2) The transportation network company imposes no restrictions on the transportation network company driver’s ability to utilize digital networks from other Transportation Network Companies;

(3) The transportation network company does not assign a transportation network company driver a particular territory in which to operate;

(4) The transportation network company does not restrict a transportation network company driver from engaging in any other occupation or business; and

(5) The transportation network company and transportation network company driver agree in writing that the driver is an independent contractor of the transportation network company.

(b) A transportation network company operating under this article is not required to provide workers’ compensation coverage to a transportation network company driver that is classified as an independent contractor pursuant to this section.


§17-29-12.  Zero tolerance for drug or alcohol use.

(a) The transportation network company shall implement a zero tolerance policy regarding a transportation network company driver’s activities while accessing the transportation network company’s digital network. The zero tolerance policy shall address the use of drugs or alcohol while a  transportation network company driver is providing prearranged rides or is logged into the  transportation network company’s  digital network but is not providing prearranged rides, and the  transportation network company shall provide notice of this policy on its website, as well as procedures to report a complaint about a driver with whom a rider was matched and whom the rider reasonably suspects was under the influence of drugs or alcohol during the course of the trip.

(b) Upon receipt of such rider complaint alleging a violation of the zero tolerance policy, the transportation network company shall immediately suspend such transportation network company driver’s access to the transportation network company’s digital network and shall conduct an investigation into the reported incident. The suspension shall last the duration of the investigation.

(c) The transportation network company shall maintain records relevant to the enforcement of this requirement for a period of at least two years from the date that a rider complaint is received by the transportation network company.


§ 17-29-13. Transportation Network Company driver requirements.

(a) Before allowing an individual to accept trip requests through a transportation Network Company’s digital platform:

(1) The individual shall submit an application to the  transportation network company, which includes information regarding his or her address, age, driver’s license, motor vehicle registration, automobile liability insurance and other information required by the  transportation network company;

(2) The transportation network company shall conduct, or have a third party conduct, a local and national criminal background check for each applicant that shall include:

(A) Multistate/multijurisdiction criminal records locator or other similar commercial nationwide database with validation (primary source search); and

(B) National Sex Offender Registry database.

(3) The transportation network company shall review, or have a third party review, a driving history research report for such individual.

(b) The transportation network company shall not permit an individual to act as a transportation network company driver on its digital network who:

(1) Has had more than three moving violations in the prior three-year period, or one major violation in the prior three-year period, including, but not limited to, attempting to evade the police, reckless driving or driving on a suspended or revoked license;

(2) Has been convicted, within the past seven years, of any felony or misdemeanor, driving under the influence, reckless driving, hit and run, or any misdemeanor violent offense or sexual offense, or more than three misdemeanors of any kind;

(3) Is a match in the National Sex Offender Registry database;

(4) Does not possess a valid driver’s license;

(5) Does not possess proof of registration for the motor vehicle(s) used to provide prearranged rides;

(6) Does not possess proof of automobile liability insurance for the motor vehicle(s) used to provide prearranged rides; or

(7) Is not at least nineteen years of age.


§17-29-14. Vehicle safety and emissions.

The  transportation network company shall require any motor vehicle that a  transportation network company driver will use to provide  transportation network company services to meet the inspection requirements of section four, article sixteen, chapter seventeen-c of this code or the inspection requirements for a private motor vehicle of the state in which the motor vehicle is registered.


§17-29-15. No street hails.

A transportation network company driver may not solicit or accept street hails.


§17-29-16. No cash trips.

The transportation network company shall adopt a policy prohibiting solicitation or acceptance of cash payments from riders and notify transportation network company drivers of such policy. Transportation network company drivers may not solicit or accept cash payments from riders. Any payment for prearranged rides shall be made only electronically using the transportation network company’s digital network or software application.


17-29-17. No discrimination; accessibility.

(a) The transportation network company shall adopt a policy of nondiscrimination with respect to riders and potential riders and notify transportation network company drivers of such policy: Provided, That no provision of this article may be construed to require that the policy of nondiscrimination with respect to riders and potential riders be more stringent than state law governing unlawful discriminatory practices.

(b) Transportation network company drivers shall comply with all applicable laws regarding nondiscrimination against riders or potential riders.

(c)  Transportation network company drivers shall comply with all applicable laws relating to accommodation of service animals.

(d) A transportation network company may not impose additional charges for providing services to persons with physical disabilities due to those disabilities.


§17-29-18. Records.

A transportation network company shall maintain the following customer records:

(a) Individual trip records of rider customers for at least two years from the date each trip was provided; and

(b) Individual records of transportation network company driver customers at least until the two year anniversary of the date on which a transportation network company driver’s customer relationship with the transportation network company has ended.


§17-29-19. Controlling authority.

(a) Notwithstanding any provision of chapter twenty-four or any other provision of this code to the contrary, the regulation of the business activities of transportation network companies and transportation network company drivers is governed exclusively by this article.

(b) Taxation. — No municipality, county or other local governmental entity or special district may impose a special district excise tax, sales tax, use tax, business and occupation tax, or any other tax or fee on, or require a license for, a  transportation network company, a  transportation network company driver, or a personal vehicle used by a  transportation network company driver, where such tax or license relates to, or is imposed upon, the service or privilege of providing prearranged transportation of persons or property. No municipal consumer’s sales and service tax and use tax or special district excise tax may be imposed on the customers of a transportation network company or a transportation network company driver for, or with relation to, purchases of transportation network company transportation services.

(c) Licensure, registration and qualification. — No municipality, county or other local governmental entity or special district may require a transportation network company driver to obtain a business license or any other similar authorization to operate within the jurisdiction, or subject a transportation network company or transportation network company driver to any licensure requirement, fee, tax, entry requirement, registration requirement, operating or operational requirement or any other requirement.

(d) Consumers sales and service tax and use tax exemptions. —

(1) The provision of prearranged transportation service by a transportation network company driver is exempt from the consumers sales and service tax and use tax imposed under articles fifteen and fifteen-a, chapter eleven of this code.

(2) Transportation Network Companies may assert a lawful and timely exemption from the consumer sales and service tax and use tax, in accordance with section nine, article fifteen, chapter eleven of this code, for purchases of tangible personal property and services directly used in transportation.

(e) Limitations and interpretation. —

(1) No provision of this section or this article shall be interpreted to void, abrogate, restrict or affect imposition of the ad valorem property tax on tangible personal property of a transportation network company or of a transportation network company driver by any levying body.

(2) No provision of this section or this article shall be interpreted to void, abrogate, restrict or affect imposition of the state personal income tax or state corporation net income tax on a transportation network company or a transportation network company driver.

(3) No provision of this section or this article shall be interpreted to void, abrogate, restrict or affect imposition of the motor fuel excise tax on any taxable motor fuel or alternative fuel purchased by any transportation network company or transportation network company driver.

(4) No provision of this section or this article shall be interpreted to void, abrogate, restrict or affect the requirements of chapter eleven of this code for issuance of a business registration certificate for transportation network companies and transportation network drivers.

(5) No provision of this section or this article voids, abrogates, restricts or affects any requirement of state law with relation to licensure of drivers or motor vehicles.

(6)  Transportation network company drivers may not assert the exemption from the consumer sales and service tax and use tax, for purchases of tangible personal property and services directly used in transportation under section nine, article fifteen, chapter eleven of this code.


 

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