BILL ANALYSIS �
AB 976
Page 1
Date of Hearing: April 1, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 976 (Atkins) - As Amended: March 19, 2013
SUBJECT : Coastal resources: California Coastal Act of 1976:
enforcement: penalties
SUMMARY : Authorizes the Coastal Commission (Commission), by
majority vote and at a duly noticed public hearing, to impose an
administrative civil penalty on a person who intentionally and
knowingly violates the California Coastal Act (Coastal Act).
EXISTING LAW : Pursuant to the Coastal Act:
1)Requires any person seeking to perform any development in the
coastal zone to first obtain a coastal development permit
(CDP).
2)Authorizes the Commission's executive director to issue an ex
parte cease and desist order if he or she determines that
someone is undertaking or threatening to undertake an activity
that requires a CDP or that may be inconsistent with a
previously issued permit. Before issuing the ex parte cease
and desist order, the executive director is required to give
oral and written notice. The order is valid for 90 days from
the date of issuance.
3)Authorizes the Commission, after a public hearing, to issue a
cease and desist order if it determines that someone is
undertaking or threatening to undertake an activity that
requires a CDP or that may be inconsistent with a previously
issued permit.
4)Authorizes the Commission to issue a restoration order if it
finds that development has occurred without a CDP and the
development is causing continuing resource damage.
5)Requires the Commission's executive director to record a
notice of violation with a county recorder if (1) he or she
has determined that real property has been developed in
violation of the Coastal Ac, (2) a notice of intention to
record a notice of violation was mailed, and (3) the owner of
the property failed to object to the notice or the owner of
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the property objected and the Commission found, after a
hearing, that a violation has occurred.
6)Authorizes a superior court to impose civil penalties between
$500 and $30,000 on any person in violation of the Coastal
Act. If a person intentionally and knowingly violates the
Coastal Act, additional civil penalties between $1,000 and
$15,000 may be imposed for each day in which the violation
persists.
7)Requires any funds derived from penalties associated with a
violation of the Coastal Act to be deposited in the Violation
Remediation Account of the Coastal Conservancy Fund and used
to carrying out the Coastal Act, when appropriated by the
Legislature.
THIS BILL :
1)Authorizes the Commission, by majority vote and at a duly
noticed public hearing, to impose an administrative civil
penalty on a person who intentionally and knowingly violates
the Coastal Act. The penalty may be in an amount not to
exceed 75 percent of the amount that a court can impose for
the same violation.
2)In determining the amount of civil liability, requires the
Commission to take into account the following factors:
a) The nature, circumstance, extent, and gravity of the
violation;
b) Whether the violation is susceptible to restoration or
other remedial measures;
c) The sensitivity of the resource affected by the
violation;
d) The cost to the state of bringing the action; and
e) With respect to the violator, any voluntary restoration
or remedial measures undertaken, any prior history of
violations, the degree of culpability, economic profits, if
any, resulting from, or expected to result as a consequence
of, the violation, and such other matters as justice may
require.
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3)Prohibits a person from being subject to both administrative
civil liability imposed by the Commission and monetary civil
liability imposed by the superior court for the same act or
failure to act. In the event that a person who is assessed a
penalty under this section fails to pay the administrative
penalty, otherwise fails to comply with a restoration or cease
and desist order issued by the Commission in connection with
the penalty action, or challenges any of these actions by the
Commission in a court of law, the Commission may maintain an
action or otherwise engage in judicial proceedings to enforce
those requirements and the court may grant any relief as
provided under this chapter.
4)If a person fails to pay an administrative civil penalty
imposed by the Commission, authorizes the Commission to record
a lien on the person's property in the amount of the penalty
assessed by the Commission. This lien shall have the force,
effect, and priority of a judgment lien.
5)States that it is not the intent of the Legislature that
unintentional, minor violations that only cause de minimis
harm should lead to civil penalties, if the violator has acted
expeditiously to correct the violation.
6)Does not apply the bill's administrative civil penalty
provisions to a local government, a special district, or an
agency thereof when acting in a legislative or adjudicative
capacity.
7)Requires all funds derived from penalties associated with a
violation of the Coastal Act to be deposited in the Coastal
Act Services Fund, until appropriated by the Legislature, for
the purpose of carrying out the Coastal Act.
FISCAL EFFECT : Unknown
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COMMENTS :
1)Should the Commission have administrative penalty authority?
As stated by Commission staff, penalties are a critical
component of all environmental statutes and are the primary
means to persuade would-be violators to comply with the law.
The deterrent component of any regulatory scheme is important,
particularly for environmental laws. A credible threat of
penalties to prevent violations in the first place can greatly
increase the ability of an environmental agency to obtain
voluntary compliance, and greatly increase its ability to
protect the environment.
While the Commission has the authority to seek civil penalties
in court, staff claims that it is infrequently done, citing
the very slow, expensive, and resource-intensive process.
Commission staff provided committee staff with a breakdown of
cases filed by the Commission to enforce Commission-issued
orders since 2003. There were only four cases, with at least
half of these cases each accruing more than $100,000 in costs
to the Attorney General's Office. These costs do not reflect
the entire cost of litigation to the state, and in particular
do not include Commission staff or attorney time. Moreover,
the penalties are relatively low compared to the litigation
costs. For example, three of the four cases were settled,
generating a total of $425,000 in penalties. The fourth case
is pending, but has already cost more than $100,000 in
Attorney General services.
Even the Legislative Analyst's Office (LAO) has chimed in on
the issue. In its 2008-2009 and 2011-12 budget analysis, the
LAO recommended that the Commission be granted administrative
civil penalty authority. The LAO highlighted the cumbersome
process that "results in few fines and penalties issued by the
commission due to the high cost of pursuing enforcement
through the courts."
This bill's proposal and the LAO's recommendations are not
novel concepts. Several environmental state agencies have
been able to evade costly litigation through their
administrative penalty authority. For example, agencies such
as the San Francisco Bay Conservation and Development
Commission (BCDC), the State Water Resources Control Board
(and regional boards), State Lands Commission, Department of
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Fish and Wildlife, California Energy Commission, Department of
Forestry and Fire Protection, Department of Toxic Substances
Control, Department of Resources Recycling and Recovery, and
regional air districts all have administrative civil penalty
authority, at least for certain issue. BCDC's authority to
regulate development along San Francisco Bay serves as the
best analog to the work of the Commission. Using its civil
penalty authority, BCDC has been successful at discouraging
and resolving the vast majority of violations without
resorting to expensive and time consuming litigation.
Supporters of this bill argue that that "the state's coastal
resources are no less important or worthy of protection" than
the resources that these other agencies protect.
2)How due process is protected.
Opponents of the bill argue that the imposition of monetary
penalties should remain with the judicial branch. Among other
things, the opponents believe that "an individual facing
potentially significant fines and penalties should be afforded
due process through the judicial system where witnesses must
be qualified to testify and are sworn in, testimony is taken,
witnesses are cross-examined, rebuttal is allowed, and no time
restrictions are imposed, all before a judge."
It is unclear whether the opponents are unaware of the
"Administrative Adjudication Bill of Rights" found in section
11425.10 Government Code, et seq. These statutes provide
specific due process protections when an agency conducts an
adjudicative proceeding. For example, these protections
require that the adjudicative function of the agency be
separated from the investigative, prosecutorial, and advocacy
functions within the agency; that the presiding officers be
subject to disqualification for bias, prejudice, or interest;
and that ex parte communications be restricted. Additionally,
the Government Code provides very specific procedural rules to
ensure a fair adjudication and the Code of Civil Procedure
(section 1094.5) provides a process to appeal an agency's
decision to a court.
3)Bill is tailored to address intentional violations.
The scope of the bill is limited to people who intentionally
and knowingly violate the Coastal Act. The Commission cannot
use this bill to penalize unintentional violations that cause
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de minimis harm.
4)Coastal Conservancy (Conservancy) Funding Issue.
Existing law requires the Commission to deposit fines and
penalties moneys it receives into the Violation Remediation
Account (VRA) of the Coastal Conservancy Fund.
Fines and penalties are deposited in the fund and expended by
the Conservancy when appropriated by the legislature in a
manner to remedy adverse impacts of Coastal Act violations.
Specifically, the funds are used to assure acceptance and
long-term management of public accessways and conservation
easements by public agencies and nonprofit organizations and,
where feasible, at locations where Coastal Act violations have
obstructed these goals. A 1986 memorandum of understanding
(MOU) identified potential uses of VRA funds, which staffs of
both the Commission and the Conservancy have agreed will
provide the most meaningful remediation of Coastal Act
violations and will support Coastal Act policies and
objectives to which both agencies are committed. This MOU was
recently updated in 2012.
This bill requires that all fines and civil penalties be
deposited in the Coastal Act Services Fund. This amendment
will deprive the Conservancy of the funding it currently
receives through the VRA. The author and the committee may
wish to amend the bill so the VRA continues to receive funds
to support projects such as projects that address issues
related to Coastal Act violations.
5)Previous Legislation. This bill is a re-introduction of AB
226 (Ruskin) from 2009 and SB 588 (Evans) from 2011. AB 226
passed the Assembly Natural Resources Committtee and the
Assembly Floor, but was "gutted and amended" on the Senate
Floor. No legislative action was taken on SB 588 after the
Senate Natural Resources and Water Committee passed the bill.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Coastkeeper Alliance
California Coastal Protection Network
California Native Plant Society
Environmental Defense Center
Heal the Bay
North County Watch
Planning and Conservation League
Sierra Club California
Surfrider Foundation
The Wildlands Conservancy
Opposition
American Council of Engineering Companies of California
California Apartment Association
California Association of Realtors
California Aquaculture Association
California Building Industry Association
California Business Properties Association
California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Construction and Industrial Materials Association
California Farm Bureau Federation
California Fisheries and Seafood Institute
California Independent Petroleum Association
California Sea Urchin Commission
California Travel Association
California Wetfish Producers Association
Nisei Farmers League
Western Agricultural Processors Association
Western States Petroleum Association
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092