HOUSE BILL NO. 27
AS AMENDED BY SENATE AMENDMENT NOS. 1, 3 AND 4
AN ACT TO AMEND TITLE 2 OF THE DELAWARE CODE RELATING TO PUBLIC CARRIERS, REGULATORY DUTIES AND FUNCTIONS, REGULATORY REQUIREMENTS, POWERS AND LIMITATIONS, AND PUBLIC CARRIER RATES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three-fifths of all members elected to each House thereof concurring therein):
Section 1. Amend Section 1801(5), Chapter 18, Title 2 of the Delaware Code by deleting the words "Chapter 15, 16 or 17" and substituting in lieu thereof the words "Chapter 13".
Section 3. Amend Section 1801(9), Chapter 18, Title 2 of the Delaware Code by striking the period ".H at the end of said section and by substituting in lieu thereof a comma "," and by adding new language after such substituted comma as follows:
"except, however, that "gross revenue" of a public carrier operating by leasing all or part of its vehicles to non-employee independent contractor drivers as authorized under this chapter shall mean as to such leased vehicles all revenue which (I) is collected from the non-employee independent contractor lessees operating vehicles under such public carrier's certificate of public convenience and necessity and (ii) is derived from the intrastate public carrier business of such a carrier.".
Section 4. Amend Section 1801(10) of Title 2 of the Delaware Code by
striking that section in its entirety and substituting in lieu thereof the following:
"(10) 'Charter Bus' means a motor vehicle having a passenger capacity of 12 persons or more, exclusive of the driver, which bus is used exclusively for hire or lease.".
Section 5. Amend Section 1801(11), Chapter 18, Title 2 of the Delaware
Code by deleting the words "the use of transportation or transportation related services as a commercial venture whether operated for profit or not" and substituting in lieu thereof the words "service provided in exchange for a fee or charge, regardless of whether the operator intends to make a profit, and deleting the period at the end of said section and adding at the end thereof new language to read as follows:
", and (iii) shuttle-type transportation provided by business
establishments without charge to customers of the businesses offering such shuttle transportation between fixed termini.".
Section 6. Amend Section 1801(13) of Title 2 of the Delaware Code by
deleting the number "18" in the second line thereof and substituting in its place the number "10".
Section 7. Amend Section 1801 of Title 2 of the Delaware Code by adding a new subsection at the end thereof as follows:
"(15) 'Fixed-Route Carrier' means a transportation provider which
uses a self-propelled vehicle having a passenger capacity exclusive of the drive of 10 persons or more and which transports persons and their property over regular routes between termini that are fixed and cannot be altered without the advance, written approval of the Authority.".
Section 8. Amend Sections 1802, 1802A and 18028 of Title 2 of the Delaware Code by striking the sections in their entirety and substituting in their place the following:
"1802. Regulation of Public Carriers.
The Authority shall make and impose charges and fees for filing, copying, inspection and other services rendered pursuant to the powers granted by this chapter or in accordance with such rules and regulations as it may from time to time adopt.
The Authority shall, with the approval of the Secretary, prepare proposed rules and regulations governing the responsibilities of the public
carriers it regulates. The rules and regulations shall be adopted at a
public hearing following public notice. The rules and regulations as
adopted, and as they may be from time to time amended by the Authority, shall have the effect of law and shall remain in power and force until the same are amended or repealed by the Authority.
(c)(1) The Authority shall grant, upon an applicant's proof of
qualification as set forth in subsection (d) hereof, a certificate of public convenience and necessity. Such certificate shall authorize the certificate holder to operate motor vehicles for hire in public transportation. The certificate shall authorize the number of vehicles the certificate holder may operate, which number may be increased by subsequent application, in the Authority's discretion, and may contain restrictions or conditions related to such items as, but not limited to, geographic areas of operation, bonding, safety and maintenance, insurance, quality control and unfair competition; provided, however, that each holder of any such certificate, or of a successor 'grandfather' certificate of public convenience and necessity obtained under subsection (c)(2) of Section 8 of Chapter 125, Volume 62 of the Laws of Delaware, may not be limited to operate fewer vehicles than were in such holder's authorized fleet of taxicab vehicles on December 31, 1991.
The rules and regulations adopted pursuant to subsection (b)
hereof shall provide that a certificate holder may request that the Authority divide the certificate into as many certificates of public convenience and necessity as there are authorized vehicles. The
certificate resulting from a division of the original certificate shall authorize the operation of only one vehicle per certificate. Each
certificate of public convenience and necessity shall be a franchise and create a proprietary interest owned by the certificate holder, subject, however, to suspension or revocation by the Authority upon a showing beyond a reasonable doubt that the certificate holder is knowingly operating or knowingly permitting operation of a vehicle, or the business authorized by the certificate, in disregard or violation of State law, the rules and regulations and/or applicable practices and orders of the Authority.
The rules and regulations adopted pursuant to subsection (b)
hereof shall provide that the Authority shall issue to each certificate holder a medallion or other identifying insignia, and that this medallion or other identifying insignia shall be physically affixed to the top of the hood of the taxicab vehicle operated under that certificate. The rules and regulations also shall provide that the certificate holder may sell and assign each certificate, vehicle, medallion or other identifying insignia to another or others to operate in the taxicab business under such sold or assigned certificate. If the certificate holder replaces the vehicle
identified by the medallion or insignia, the certificate holder, with the approval of the Authority, shall affix the medallion or other identifying insignia to the vehicle replacing the former vehicle.
No person AO purchases a certificate of public convenience and necessity from a certificate holder as authorized by subsection (c)(3) may commence operations as a public carrier without having first obtained from the Authority a certificate of compliance. The Authority will issue a
certificate of compliance when the purchaser of a certificate of public convenience and necessity provides evidence to the Authority to prove by a preponderance of the evidence that purchaser has complied with Section 1802(e) (1)(B), (C) and (D) and is of good moral character as specified in Section 1802 (e)(1).
By its rules and practices, or by order, the Authority shall provide for authority to management, maintenance and dispatching companies and organizations (1) to manage parts or all of the operations and businesses of certificated taxicab companies and operators, (ii) to maintain and repair taxicab vehicles for such companies and operators, and/or (iii) to provide radio dispatching of taxicab vehicles for such
certificated taxicab companies and operators, pursuant to contractual arrangements made between such management, maintenance and dispatching companies and organizations, on the one hand, and on the other, such certificated taxicab companies and operators. The Authority shall have power to void any contracts and services of any such management, maintenance and dispatching company or organization upon proper and adequate proof of knowing and repeated noncompliance by such company with State law and/or the rules, regulations, practices and orders of the Authority.
The Authority may, by its rules and regulations, authorize a
holder of a certificate of public convenience and necessity to operate the public carrier business thereunder with vehicles leased by such holder to non-employee independent contractor drivers who will operate such vehicles as such drivers under the authorization of said certificate of public convenience and necessity, provided, however, that the holder of the certificate of public convenience and necessity shall remain responsible for the proper operation and maintenance of said vehicles in said public carrier business and for the compliance with all laws, rules, regulations, practices, and applicable orders and provided further, that such
non-employee independent contractor drivers do not thereby become public carriers and do not thereby have any rights under this title as a public carrier. The Authority may, by its rules and regulations, authorize a
system of restricted certification where deemed to be appropriated and only in accordance with such terms and conditions as the Authority shall determine. The Authority shall have the power to void any leases and/or suspend or revoke the certificate of public convenience and necessity of any holder thereof upon proper and adequate proof of knowing and repeated noncompliance by such certificate holder or its lessees with such laws, rules, regulations, practices, and orders.
The Authority may issue a Certificate of Public Convenience and Necessity upon satisfaction of the following terms and conditions and such other terms and conditions imposed by the Authority:
(1) No public carrier shall commence any new operations, or
continue any existing operations, without having first obtained from the Authority a certificate of public convenience and necessity and having paid the registration fee therefor. Any public carrier which holds a certificate of public convenience and necessity issued by the Authority on the date this section becomes effective shall be deemed to have an existing certificate of public convenience and necessity as contemplated herein and may continue such operations authorized by the existing certificate of public convenience and necessity. The Authority may, after notice and a hearing, impose such terms and conditions upon the certificate as may be required by the public convenience and necessity. The application for a certificate of public convenience and necessity shall be verified and contain a certification by the applicant that notice of his application has been sent to existing public carriers. In addition, the applicant shall be of good moral character, as shall be evidenced by exhibiting compliance with all applicable laws and regulations, and shall not have been convicted of a felonious or infamous crime involving fraud or deceit. The Authority shall require the applicant for a certificate of public convenience and necessity to prove by a preponderance of the evidence the following:
That his or its proposed operations will serve a useful public purpose, a useful public necessity, and a useful public convenience responsive to a public demand.
That the applicant, as to its proposed service and/or operations, has sufficient financial ability to compensate members of the public for injuries to person or property which they may sustain from acts or failures to act of the public carrier. To this end, the Authority may require that an applicant post a bond to secure its performance for the first two years of its operation in this State.
That, as to the proposed service and/or operations, the applicant has complied with all applicable motor vehicle laws of the State of Delaware, including but not limited to sub-chapter VI of Chapter 21 of Title 21 of the Delaware Code, as the same may be
amended and that the applicant will otherwise ensure that its vehicles are safely operated and maintained.
D. That, as to the proposed service and/or operations, the
applicant is covered by and with a public liability and property damage policy or policies issued by a company licensed to conduct insurance business in the State of Delaware with coverages in the amounts specified in this section.
If the Authority finds that the applicant has proven by a preponderance of the evidence subsections A. through D. of section 1802(e)(1), a certificate of public convenience and necessity shall be issued, unless an existing public carrier or a member of the public can prove by a preponderance of evidence that the applicant's operation will have a significant adverse impact on the public health and safety or an adverse impact on existing carriers such as to impair their ability to serve the public. For the purposes of this section a preponderance of the evidence means evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. The burden of proof of significant adverse impact is on the intervenor.
Any public carrier operating without a certificate of public convenience shall, upon such a finding by the Authority, be liable for the payment of a penalty in an amount not to exceed $500 per day of operation for the first such finding, and not to exceed $1,000 per day for the second or subsequent such findings. An action alleging
failure to comply with the provisions of this section shall include an action alleging a continuing offense and the penalty contemplated herein shall be assessed for each day of operations in which a violation is proven.
Whenever the Authority, pursuant to its duties under this
chapter, shall investigate the operations, services, rates, charges, accounting records, or practices of any public carrier, including a public carrier operating without having received a certificate of public convenience and necessity, and shall hold a hearing in connection therewith, such public carrier shall be charged with and pay such portion of the expenses of the Authority, and the compensation and expenses of its agents, representatives, consultants, and employees as is reasonably attributable to such investigation, provided that notice of the intent to so charge the public carrier shall be given to the public carrier as soon as the Authority makes such intent. This provision shall not apply to the compensation of the full-time employees of the Authority. The Authority shall have the power to subpoena such records and witnesses as it may require to carry on an investigation pursuant to this chapter.
In order to maintain and foster the effective regulation of public carriers under this title, public carriers subject to regulation of the Authority shall bear the expense of regulation by means of an assessment measured by the annual gross revenue of such public carriers. This assessment shall be in addition to all other fees and charges imposed by the Authority pursuant to this title. Such assessment shall be in the amount equal to the product of .002 (2 mills) multiplied by the public carrier's gross operating revenue for each of the State's fiscal years. Whenever a public carrier commences operations on a date other than July 1, so that it has not operated for a full fiscal year prior to the date its assessment is calculated, such carrier's assessment shall be prorated, based on the portion of the fiscal year during which the carrier operated.
On or before October 1 of each year, each public carrier subject to this title shall file with the Authority an annual gross revenue return. Forms for such returns and amended returns shall be devised and supplied by the Authority.
(I) All returns and the accompanying fees submitted to the Authority by a public carrier, as provided in this section, shall be sworn to by an appropriate officer of the public carrier. The Authority may audit each such return submitted and may take such measures as are necessary to ascertain the correctness of the returns submitted, and to require the correction of incorrect returns. All returns will be used for the regulatory purposes set out in this section, and shall not be open to
public inspection under federal or state Freedom of Information statutes and shall be precluded from discovery or inspection as a privileged business record, except as otherwise provided by law. In default of compliance with this section, the public carrier shall be subject to the penalties provided in subsection (m) below.
Each payment of the assessment imposed by this section is due by midnight of the date specified. Late filings will be subject to payment of a late fee to be determined by the Authority in its Regulations. If a
public carrier has failed to pay or has underpaid the proper amount, it shall pay a penalty to the Authority of 11/4 of the amount due for each month or fraction thereof that such amount remains unpaid. The Authority may enforce the collection of any delinquent payments by any legal action or other manner by which the collection of debts due the State may be enforced under the laws of this State.
There is hereby maintained within the Authority a special fund designated as the Delaware Transportation Authority Regulatory Revolving Fund, which shall continue to be used in the operation of the Authority in the performance of the various regulatory functions and duties required of it by law.
(1) All fees, licenses, assessments and other charges collected by the Authority pursuant to this title shall be deposited in the Delaware Transportation Authority Regulatory Revolving Fund to be used by the Authority as provided above, subject to annual appropriations by the General Assembly for salaries and other routine operating expenses of the Authority. All penalties or fines assessed and collected by the Authority shall be deposited in said Fund to be used only for such purposes as described in this chapter.
In default of compliance with this chapter, the rules and
regulations, or any order of the Authority when the same becomes effective, the public carrier shall be subject to (1) a penalty of up to $500 per day for every day during which such default continues, to be recovered in an action in the name of the State; and (2) the suspension, for a duration not to exceed one year, or revocation of the public carrier's certificate of public convenience and necessity. The observance of the rules and
regulations and orders of the Authority may be compelled by mandamus or injunction. Within 10 days of receiving notice that it is in default of
compliance, the public carrier may appeal to the Authority for a hearing. Should the Authority, after such hearing, determine that the public carrier remains in default of compliance, the public carrier may appeal to the Superior Court. Such an appeal will be on the record only and shall be
taken as provided in Rule 72 of the Superior Court Civil Rules. The burden of proof of any such appeal is on the public carrier.
Whoever knowingly performs, commits or does, or participates in performing, committing or doing, or knowingly causes, participates or joins with others in causing any public carrier to do, perform, or commit, or advises, solicits, persuades or knowingly instructs, directs or orders any officer, agent or employee of any public carrier to perform, commit or do any act or thing prohibited by this chapter shall be fined not more than $2,000 or imprisoned not more than 6 months or both.
The Authority is authorized to hire sufficient staff to carry out this chapter subject only to the funding granted by the General Assembly.
The Authority shall prescribe by rule, regulation, or order
minimum amounts and kinds of insurance which shall be carried by public carriers, provided that no public carrier shall be permitted to operate as such unless and until each and all of its vehicles transporting passengers shall be covered by and with a public liability and property damage insurance policy or policies issued by an insurance company authorized to do business in the State of Delaware in the minimum amounts of $100,000 per person per accident for personal injury or death and $50,000 per accident for property damage.
The Authority shall have jurisdiction to review, investigate,
conduct hearings, revise and approve all rates, fares, tariffs, or changes imposed or sought to be imposed upon the public in accordance with the following:
Every public carrier shall file with the Authority complete schedules of every classification of fares or rates charged by it for service offered in this State. A current copy of all rates, fares or tariffs in effect shall be kept available for inspection by the public at the business office of the carrier and in or on each vehicle used by the public carrier in performing its services. Every application
for a certificate of public convenience and necessity shall include a proposed rate schedule shall be approved by the Authority prior to its granting the certificate to the applicant.
Rates, fares, tariffs, or charges of each public carrier may be based upon the public carrier's operating ratio or by reference to the rate base of the carrier, a fair rate of return for the carrier and the revenues and expenses of the carrier. The Authority shall
have access, upon reasonable notice, to all records, books and documents of a public carrier which the Authority deems relevant in enabling it to act upon rates, fares, tariffs, and charges of the carrier, including records, books and documents in the custody of a third party.
No public carrier shall make, impose, or exact any unjust or unreasonable or unduly preferential or unjustly discriminatory
individual or joint rate or fare for any service supplied by tt within this State.
No public carrier shall put into effect any new rate or fare except after 30 days' notice to the Authority, which notice shall plainly state the new rate or fare and the time such new rate or fare will go into effect. The public carrier shall also post a notice of the new rate or fare at its place of business 30 days prior to the intended effective date of such new rate or fare. All proposed new rates or fares shall be published at least one a week for two consecutive weeks during the 30-day period in a newspaper of county wide circulation in each county in which the public carrier holds itself out to operate, in a form approved by the authority. The
Authority may, for good cause shown, permit temporary changes in fares to take effect without requiring the 30 day notice, provided, however, that such temporary changes shall be in effect for only so long as the request for same shall state. Any such temporary change shall be clearly posted at the public carrier's place of business and in each of its vehicles.
The Authority may, either upon complaint or upon its own
initiative, hold a hearing concerning the lawfulness of a rate or fare charged by a public carrier. Such hearing shall be scheduled 20 days after written notice to the public carrier and after notice of such hearing ts published in a newspaper of general circulation in the county in which such carrier operates. The hearing will be conducted in accordance with the procedures set forth in 29 211. C. ch. 101.
The Authority may, after notice and a hearing, in writing, fix just and reasonable individual rates or fares, joint rates or fares, charges or schedules thereof, as well as commutation, mileage, and other special rates or fares, which shall be imposed, observed, and followed thereafter by any public carrier affected by such order. An order entered in accordance with this subsection shall be effective 30 days following the date the order is issued, unless the Authority, in its discretion, makes the order effective at an earlier date.
In any hearing to determine the lawfulness of a rate, fare, or charge imposed by the public carrier, the burden of proof that the rate, fare, or charge is lawful ts on the public carrier. The
standard of review utilized by the Authority to determine tf any rate, fare, tariff or charges whether proposed or approved is lawful is whether said rate, fare, tariff or charge is reasonable and in accord with the public and the financial obligation of the public carrier. Upon review by the Authority of all surrounding circumstances.".
Section 9. Amend Section 1819(c), Chapter 18 of Title 2 of the Delaware Code by striking the section in its entirety and substituting in its place the following:
"(c) The scope of review before the Court shall be whether the
Authority's decision is based on substantial evidence.".
Section 10. This Act shall not affect the validity of any certificate of public convenience and necessity, or part thereof, which was issued or amended in accordance with the requirements of Chapter 125, Volume 62 of the Laws of Delaware, prior to the enactment of this Act.
Section 10. Amend §1817, Title 2, Delaware Code by deleting the term
"motor bus" wherever it appears therein and by inserting in lieu thereof the term "charter bus".
Section 11. Amend §1818, Title 2, Delaware Code by deleting the term
"motor buses" as it appears therein and by inserting in lieu thereof the term "charter buses".
Approved May 21, 1992.