AB 2179 Assembly Bill

BILL NUMBER: AB 2179	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 18, 2012

INTRODUCED BY   Assembly Member Allen

                        FEBRUARY 23, 2012

   An act to amend Section 309 of, to repeal Sections 500, 2580,
2581, and 2584 of, and to repeal and add Sections 2582 and 2583 of,
the Fish and Game Code, relating to fish and game.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2179, as amended, Allen. Fish and game: enforcement and
penalties.
   Existing law authorizes the Fish and Game Commission, or any
person appointed by the commission  ,  to conduct a hearing,
to cause the deposition of witnesses, as prescribed, and to compel
the attendance of witnesses and the production of documents and
papers, in accordance with certain requirements.
   This bill would eliminate the prohibition that the commission not
revoke or suspend any license or permit until specified regulations
have been adopted and approved, as specified. This bill would also
eliminate the provision that any deliberation conducted by the
commission, or conducted by any person appointed by the commission to
conduct a hearing, is required to be conducted pursuant to the law
governing administrative adjudication.
   Existing law requires the commission to adopt guidelines, by
regulation, to assist the director and the department in ascertaining
the amount of specified civil penalties, as prescribed.
   This bill would repeal these provisions.
   Existing law permits the Department of Fish and Game to impose
civil liability upon any person for specified acts with prescribed
exceptions done for profit or personal again, for unlawfully
exporting, importing, possessing, receiving, or transporting in
interstate commerce any container or package containing any bird,
mammal, amphibian, reptile, or fish, or any endangered or threatened
species, or any fully protected bird, mammal, or fish unless the
container is marked as prescribed, and for any unlawful failure or
refusal to maintain any records or paperwork as required. Under
existing law, the department may assess a civil penalty of not more
than $10,000 for each bird, mammal, amphibian, reptile, or fish, or
for each endangered or threatened species, or each fully protected
bird, mammal, or fish unlawfully taken, possessed, transported,
imported, received, purchased, acquired, or sold, in addition to any
other applicable penalty. Existing law also requires the department
to consult with the district attorney in the jurisdiction where a
violation is alleged to have occurred, and before proceeding with a
civil action, to seek the concurrence of the Attorney General, as
described. Existing law permits the Director of Fish and Game to
issue a complaint to any person on whom a civil penalty may be
imposed, in accordance with specified provisions, and requires a
referee or hearing board, as provided for, to conduct any required
hearing.
   This bill would repeal these provisions. This bill would instead
permit the department to impose administrative civil penalties not to
exceed $20,000  or deny, suspend, or revoke any license,
permit or other entitlement issued by the department to 
 and determined as prescribed, upon  any person who has
violated any provision of the code or regulations adopted pursuant to
the code. This bill would require, prior to the imposition of
administrative penalties  or any revocation or suspension
 , a person to be given a written notice of the proposed
action. This bill would require a person  denied a license,
permit, or other privilege, or  who receives notice of a
proposed penalty  , revocation, or suspension,  to
have the right to request a hearing before the department in
accordance with specified procedures. This bill would permit the
department to take the action proposed without a hearing if a hearing
is not requested. This bill would permit a party ordered to pay an
administrative penalty  or whose license, permit, or other
privilege is denied, suspended, or revoked  and who appeared
at a hearing to appeal to the  commission  
director  , as prescribed. This bill would  permit a
review of a decision of the commission, as specified.  
permit a person served with a copy of an order setting the amount of
a civil penalty to file with the superior court a petition for a writ
of mandate for review of the order, as specified. This bill would
permit the department to file a certified copy of the final decision
that directs payment of an administrative penalty and, if applicable,
any order that denies a petition for a writ of administrative
mandamus with the clerk of the superior court of any county, would
require the clerk   to enter judgment, and would prohibit
the clerk from charging fees for the performance of any official
service required in connection with this entry of judgment. This bill
would require any administrative penalties received pursuant to
these provisions to be deposited into the Fish and Game Preservation
Fund.  
   Existing law, the California Public Records Act, requires any
public record of a state or local agency to be open to inspection at
all times during office hours of the agency and, upon request, a copy
shall be made promptly available to any person upon payment of
copying costs. The act makes certain records exempt from disclosure.
 
   This bill would, after all appeals are final, provide that records
of the appeal to the director are public records, as defined by the
act. 
   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 309 of the Fish and Game Code is amended to
read:
   309.  The commission or any person appointed by it to conduct a
hearing may, in any investigation or hearing, cause the deposition of
witnesses, residing within or without the state, to be taken in the
manner prescribed by law for deposition in civil actions in the
superior courts of this state under Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure, and may compel
the attendance of witnesses and the production of documents and
papers. The commission shall adopt regulations that afford procedural
and substantive due process to any person whose license or permit is
subject to revocation or suspension by the commission.
  SEC. 2.  Section 500 of the Fish and Game Code is repealed.
  SEC. 3.  Section 2580 of the Fish and Game Code is repealed.
  SEC. 4.  Section 2581 of the Fish and Game Code is repealed.
  SEC. 5.  Section 2582 of the Fish and Game Code is repealed.
  SEC. 6.  Section 2582 is added to the Fish and Game Code, to read:
   2582.   (a)    The department may impose
administrative civil penalties not to exceed twenty thousand dollars
($20,000)  , or deny, suspend, or revoke any license, permit,
or other entitlement issued by the department to   upon
 any person who has violated any provision of this code or
implementing regulations adopted pursuant to this code. Except as
provided in Section 2583, the proceedings for all hearings conducted
by the department shall be conducted in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code. The department shall have all of the powers
granted in that chapter.  The monetary amounts shall be levied in
an amount that is considered to be adequate to deter repeated
offense of the illegal activity and shall include consideration of
the nature, circumstances, extent, and gravity of the prohibited acts
committed and the degree of culpability of the violator, including
lesser penalties for acts which have little significant effect upon
the resources and greater penalties for acts which may cause serious
injury to the resources. The civil penalty for a violation punishable
as an infraction shall not exce   ed an amount higher than
the criminal penalty authorized in statute.  
   (b) Notwithstanding subdivision (a), any person who, for personal
profit or gain, violates this code or any regulation adopted to carry
out this code, including, but not limited to, violations of Section
12012 or 12013, and with the exercise of due care, should have known
that the birds, mammals, amphibians, reptiles, or fish, or the
endangered or threatened species, or the fully protected birds,
mammals, or fish were taken, possessed, transported, imported,
received, purchased, acquired, or sold in violation of, or in a
manner unlawful under this code, may be assessed a civil penalty. The
civil penalty imposed under this chapter by the department shall not
be more than ten thousand dollars ($10,000) for each bird, mammal,
amphibian, reptile, or fish, or for each endangered or threatened
species, or each fully protected bird, mammal, or fish unlawfully
taken, possessed, transported, imported, received, purchased,
acquired, or sold. This civil penalty may be in addition to any other
penalty, civil or criminal, provided in this code or otherwise by
law. 
  SEC. 7.  Section 2583 of the Fish and Game Code is repealed.
  SEC. 8.  Section 2583 is added to the Fish and Game Code, to read:
   2583.  (a) Prior to the imposition of administrative penalties
 or any revocation or suspension of a license, permit, or
other privilege,   under Section 2582,  a person
shall be given a written notice of the proposed action that includes
the basis for the action. A person who  is denied a license,
permit, or other privilege, or who  receives notice of a
proposed penalty  , revocation, or suspension, 
shall have the right to request a hearing before the department
within  20   30  days after receiving the
denial or notice of the proposed action. A notice of the proposed
action that is sent by certified mail to the last known address of
the person against whom the action is proposed shall be considered
received even if delivery is refused or the notice is not accepted at
that address.
   (b) If a hearing is requested within  20   30
 days of receipt of the notice of the proposed action, notice
of the time and place of the hearing shall be given at least 10 days
before the date set for the hearing. A deferral of the hearing shall
be granted upon reasonable cause, not to exceed 20 days from the date
of the original hearing date.
   (c) (1) At the hearing, the person shall be given an opportunity
to present any evidence or argument on his or her own behalf. 
Oral testimony may be given by telephone in lieu of attending a
hearing. This testimony shall be recorded and made part of the
record. Recorded testimony shall be kept for 180 days or until the
judgment is final. A transcription shall be provided to a party upon
payment of a reasonable fee for the cost of obtaining he transcript.
 
   (2) The department shall take into consideration the nature of the
violation, the circumstances, extent, and gravity of the prohibited
acts committed, the degree of culpability of the violator, and, in
deliberation, the department shall take into consideration acts that
have little significant effect upon resources and acts that have more
significant effect upon resources.  
   (2) 
    (   3)  If at the hearing the person is ordered
to pay an administrative penalty  or has his or her license,
permit, or other privilege denied, suspended, or revoked, 
the person may appeal to the  commission  
director  within  10   30  days of
mailing or personal service of the department's decision.
   (d) If a hearing is not requested in a timely manner, the
department may take the action proposed without a hearing.
   (e) The following shall apply to an appeal to the
commission pursuant to paragraph (2) of subdivision (c) 
 director  :
   (1) The appeal shall be in writing and signed by the appellant or
his or her authorized agent and shall state the grounds for the
appeal.
   (2) Any party, at the time of filing the appeal or within 10 days
of the filing, may present written evidence and a written argument to
the secretary.
   (3) The  commission   director  may
grant oral arguments upon application made at the time written
arguments are made.
   (4) If an application to present an oral argument is granted,
written notice of the time and place for the oral argument shall be
given at least 10 days prior to the date set for the oral argument.
This time requirement may be changed upon agreement between the
commission and the person appealing.  Oral testimony may be given
by telephone in lieu of attending a hearing. This testimony shall be
recorded and made part of the record. Recorded testimony shall be
kept for 180 days or until the judgment is final. A transcription
shall be provided to a party upon payment of a reasonable fee for the
cost of obtaining the transcript. 
   (5) The  commission   director  shall
decide the appeal based on any oral or written arguments, briefs, and
evidence received.  The department shall take into consideration
the nature of the violation, the circumstances, extent, and gravity
of the prohibited acts committed, the degree of culpability of the
violator, and, in deliberation, the department shall take into
consideration acts that have little significant effect upon resources
and acts that have more significant effect upon resources. 
   (6) The  commission   director  shall
render a written decision within 45 days of the date of the appeal,
or within 15 days of the date of oral arguments. A copy of the
 department's   director's  decision shall
be delivered or mailed to the appellant.
   (7) The  commission   director  may
sustain the decision, modify the decision by reducing the amount of
the penalty levied, or reverse the decision. 
   (8) A review of the commission's decision may be sought by the
person against whom the penalty was levied pursuant to Section 1094.5
of the Code of Civil Procedure.  
   (8) Within 30 days after service of a copy of an order setting the
amount of the civil penalty, any person so served may file with the
superior court a petition for a writ of mandate for review of the
order. In all proceedings pursuant to this paragraph, the court shall
exercise its independent judgment on the evidence in the whole
record. The filing of a petition for a writ of mandate shall not stay
any other civil or criminal action.  
   (f) The records of the appeal pursuant to subdivision (e), after
all appeals are final, are public records, as defined in subdivision
(e) of Section 6252 of the Government Code.  
   (g) After completion of the review procedure provided in this
section, the department may file a certified copy of the final
decision that directs payment of an administrative penalty and, if
applicable, any order that denies a petition for a writ of
administrative mandamus, with the clerk of the superior court of any
county. Judgment shall be entered by the clerk in conformity with the
decision or order. No fees shall be charged by the clerk of the
superior court for the performance of any official service required
in connection with the entry of judgment pursuant to this section.
 
   (h) Any administrative penalties received pursuant to this section
shall be deposited in the Fish and Game Preservation Fund. 
  SEC. 9.  Section 2584 of the Fish and Game Code is repealed.