BILL ANALYSIS �
AB 976
Page 1
ASSEMBLY THIRD READING
AB 976 (Atkins)
As Amended May 13, 2013
Majority vote
NATURAL RESOURCES 6-3 JUDICIARY 6-2
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|Ayes:|Chesbro, Garcia, |Ayes:|Wieckowski, Chau, |
| |Muratsuchi, Skinner, | |Dickinson, Garcia, |
| |Stone, Williams | |Muratsuchi, Stone |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Grove, Bigelow, Patterson |Nays:|Wagner, Maienschein |
| | | | |
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APPROPRIATIONS 12-5
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|Ayes:|Gatto, Bocanegra, | | |
| |Bradford, | | |
| |Ian Calderon, Campos, | | |
| |Eggman, Gomez, Hall, | | |
| |Ammiano, Pan, Quirk, | | |
| |Weber | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Harkey, Bigelow, | | |
| |Donnelly, Linder, Wagner | | |
| | | | |
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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).
Specifically, 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% of the amount that a court can impose for the same
violation.
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2)Requires, in determining the amount of civil liability, 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.
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)Authorizes, if a person fails to pay an administrative civil
penalty imposed by the Commission, 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 the intent of the Legislature to ensure that
unintentional, minor violations of the Coastal Act that only
cause de minimis harm will not lead to the imposition of civil
penalties if the violator has acted expeditiously to correct
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the violation.
6)States that the bill's administrative civil penalty provisions
do not apply to a local government, a special district, or an
agency thereof when acting in a legislative or adjudicative
capacity.
7)Requires, of the funds annually derived from civil penalties
authorized under the Coastal Act, $1.5 million (adjusted
annually for inflation) to be deposited in the Violation
Remediation Account of the State Coastal Conservancy Fund.
Any additional funds derived from civil penalties shall be
deposited in the Coastal Act Services Fund.
8)Sunsets the bill's provisions on January 1, 2017.
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 a) he or she has
determined that real property has been developed in violation
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of the Coastal Act, b) a notice of intention to record a
notice of violation was mailed, and c) the owner of the
property failed to object to the notice or the owner of 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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Potential penalty revenues to the State Coastal Conservancy,
in the range of $500,000 to $2,000,000 a year. If penalty
revenues exceed $1.5 million, the additional revenues will
fund the Commission.
2)Minor savings, to the Commission in avoided staffing and other
expenses related to pursuing Coastal Act violations in court.
3)Potential minor savings to the Attorney General's Office from
representing the Commission before court.
COMMENTS :
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
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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 Assembly Natural Resource 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 2008-09 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 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
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protection" than the resources that these other agencies
protect.
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."
However, it should be noted that due process will be protected
through the "Administrative Adjudication Bill of Rights" found
in Government Code Section 11425.10, 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.
Bill is tailored to address intentional violations . The scope
of this 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 de
minimis harm if the violator has acted expeditiously to correct
the violation.
Previous legislation . This bill is similar to AB 226 (Ruskin)
of 2009 and SB 588 (Evans) of 2011. AB 226 passed the Assembly
Natural Resources Committee and the Assembly Floor, but was
substantially amended on the Senate Floor. SB 588 passed the
Senate Natural Resources and Water Committee; however, no
subsequent legislative action was taken on the bill.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
AB 976
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319-2092
FN: 0000571