BILL NUMBER: AB 2082 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 10, 2012
INTRODUCED BY Assembly Member Atkins
FEBRUARY 23, 2012
An act to add Sections 6224.3, 6224.4, and 6224.5 to the Public
Resources Code, relating to public lands.
LEGISLATIVE COUNSEL'S DIGEST
AB 2082, as amended, Atkins. Public lands: State Lands
Commission: violations.
Existing law establishes the State Lands Commission in the Natural
Resources Agency. Under existing law, the commission classifies
state land for its different possible uses and has jurisdiction over
various state lands.
This bill would prohibit a person from constructing,
designing, placing, maintaining, owning, using, or possessing a
structure or facility on land that is under the
commission's jurisdiction , unless all necessary easements,
leases, permits, and other instruments required by law
and owned by the state, without first obtaining all necessary
easements, leases, or permits from the commission that
authorize the construction, design, placement, maintenance,
ownership, use, or possession of the structure or facility
have been obtained .
This bill would establish a civil penalty or fee
for a violation of that provision. A person who violates
that provision would either be liable for a penalty of not more than
$1,000 a day or assessed a monthly use and occupancy fee
an amount that is not more than 60% higher than
the full fair market rental for each day
month that a violation occurs , as specified . The
bill would state criteria for determining the appropriate penalty
or fee . The bill would exempt a telegraph or
telephone corporation undertaking specified action and a franchised
cable television corporation, limited to their usage of poles,
conduits, cables, wires, and associated appurtenances under either
their ownership or the ownership of an electrical corporation, from
that penalty and fee .
The bill, among other things, also would establish procedures to
enjoin such activity, remove a violating structure or facility, and
serve notice of any violation.
The bill would exempt certain persons from the bill's
prohibitions and would authorize the commission to adopt regulations
to carry out the bill.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6224.3 is added to the Public Resources Code,
to read:
6224.3. (a) A person shall not construct, design,
place, maintain, own, use, or possess a structure or facility on land
that is under the commission's jurisdiction
unless all necessary easements, leases, permits, and other
instruments required by law that and that is owned by
the state without first obtaining all necessary easements, leases, or
permits from the commission that authorize the construction,
design, placement, maintenance, ownership, use, or possession of the
structure or facility have been obtained .
(b) A Except as provided in subdivisions
(a) and (b) of Section 6224.5, a person, other than a telegraph
or telephone corporation acting pursuant to Section 7901 of the
Public Utilities Code or a franchised cable television corporation,
as defined in Section 216.4 of the Public Utilities Code, and limited
to their usage of poles, conduits, cables, wires, and associated
appurtenances under either their ownership or the ownership of an
electrical corporation, as defined in Section 218 of the Public
Utilities Code, who violates subdivision (a) shall either
be liable for a penalty of not more than one thousand
dollars ($1,000) a day or assessed a monthly use and
occupancy fee an amount that is not more than 60
percent higher than the full fair market rental for each
day month that a violation occurs. If the
violation occurs during only part of a calendar month, the commission
may prorate the penalty.
(c) In determining the appropriate penalty or fee
described in subdivision (b), the commission shall consider
all of the following factors:
(1) The physical extent of the violation on the land under the
commission's jurisdiction.
(2) The degree of culpability of the violator.
(3) The degree of cooperation of the violator and whether the
structure or facility is susceptible to removal or the violation is
susceptible to resolution .
(4) The Any prior history of
violations of statutes or leases pertaining to lands under the
commission's jurisdiction, including the past history of the
violator in taking all feasible steps or procedures necessary or
appropriate to correct a violation.
(5) The violator's prior violations of statutes, rules, orders, or
leases pertaining to lands under the commission's jurisdiction.
(6) The impact the violation causes on the environment to public
access, the public trust, or other property interests under the
commission's jurisdiction.
(7) Any matters relevant to a fair and just result.
(8) Any other factors determined by the commission to be relevant
and consistent with the policy of the commission.
(5) The extent to which the violation causes environmental harm
or impairs public access to trust lands.
(6) Any factor determined by the commission to be relevant to a
fair and just result, and in the best interest of the state.
(d) The penalty and fee described in this
section shall be imposed from the first day of the violation
to the day the violation ends the commission issues
an order to the day when the violation is cured .
(e) If the penalty or fee described in this section is not paid
within the time allowed under the final order, interest shall accrue
at the rate prescribed by Section 6224. The final order may be
recorded with the county clerk in any county of this state and shall
have the same force, effect, and priority as a judgment lien.
(f)
( e) The commission may enjoin a person who
violates subdivision (a) from continuing that violation.
(g)
( f) The commission may require a person who
violates subdivision (a) to remove the structure or facility at the
person's own expense. If the violator refuses to remove the structure
or facility, or if the violator cannot be located, the commission
may, at its own expense, remove the structure or facility from the
land under the commission's jurisdiction. The commission may pursue
whatever legal remedies are available to recover the removal costs
from the violator , including placing a lien on the assets
of the violator .
(h) The commission may elect to take ownership of the structure or
facility as a fixture and may exercise the state's rights as owner
of the structure or facility.
(i)
( g) For the purposes of this section, a
structure or facility shall include, but is not limited to,
buildings, boat houses, docks, piers, revetment,
revetments, fill, pilings, pipelines, groins, jetties,
seawalls, breakwaters, and bulkheads.
(j) The remedies provided in this section shall be obtained by the
commission through administrative action or by the Attorney General
through civil action. If
(h) If the Attorney General
prevails in a civil action for a violation of this section,
the state necessary to enforce an order of the
commission issued pursuant to this section, the Attorney General
shall be awarded attorney's fees and costs.
(k)
( i) The remedies provided by this section
are in addition to and not in lieu of any other penalty or sanction
provided by law.
(l) The commission may adopt regulations necessary or useful to
carry out this section.
SEC. 2. Section 6224.4 is added to the Public Resources Code, to
read:
6224.4. (a) If the commission elects to pursue any of
the remedies provided under Section 6224.3 through an administrative
action, the commission shall first provide a 30-day notice to the
person against whom it seeks to impose any of the remedies. The
Before the commission considers whether to pursue a
remedy provided under Section 6224.3, the commission shall first
provide a written notice to the person against whom the commission
seeks to impose the penalty. The commission shall send the notice not
less than 30 days before the date set for conducting a hearing
pursuant to this section. A notice shall include all of the
following:
(1) The date, time, and location of the commission hearing where
the person may appear and be heard.
(2) A statement of the authority and jurisdiction under which the
hearing is to be held.
(3) A reference to the particular sections of the statutes and
rules involved.
(4) A short and plain statement of the matters asserted or
charged, including a description of the violation complained of with
reasonable certainty as to its character and location.
(5) A statement indicating whether and under what circumstances an
order by default may be entered.
(b) In lieu of personal service, service of notice may be made by
registered mail and by posting a copy of the notice on the structure
or facility that is in violation of subdivision (a) of Section
6224.3.
(c) If the person fails to appear at the noticed hearing, the
commission may make a final issue an
order.
(d) A hearing may shall be scheduled
as a regular calendar item at a properly noticed commission meeting.
(e) A person against whom the commission has issued an order
imposing a remedy provided in Section 6224.3 may seek review of the
order pursuant to Section 1094.5 of the Code of Civil Procedure.
SEC. 3. Section 6224.5 is added to the Public Resources Code, to
read:
6224.5. (a) If, at the time this
section is enacted as of January 1, 2013 , a
person is in violation of subdivision (a) of Section 6224.3, that
person shall have six months to remedy not be
subject to a penalty pursuant to that section, if the
person, on or before July 1, 2013, remedies the violation or
have submits to the commission a
completed lease application with , including
the payment of all fees and costs submitted to the
commission without being subject to a penalty or fee . The
remedy may include, but is not limited to, entering into an
appropriate lease with the commission or adequately removing the
structure or facility.
(b) A person shall not be subject to a penalty or order pursuant
to Section 6224.3, if the person submits a notice to the commission
that a structure or facility owned by that person is potentially in
violation of subdivision (a) of Section 6224.3 and the person, within
six months from the date the notice is received by the commission,
remedies the violation or submits to the commission a completed lease
application, including the payment of all fees and costs. This
subdivision shall apply only if the potential violator submits a
notice to the commission before the commission otherwise receives
notice or information regarding the potential violation, or takes
action against the violator.
(c) The commission may adopt regulations necessary or useful to
carry out this section and Sections 6224.3 and 6224.4.