BILL NUMBER: AB 2179 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 8, 2012
AMENDED IN SENATE JULY 3, 2012
AMENDED IN ASSEMBLY MAY 25, 2012
AMENDED IN ASSEMBLY APRIL 26, 2012
AMENDED IN ASSEMBLY APRIL 18, 2012
INTRODUCED BY Assembly Member Allen
FEBRUARY 23, 2012
An act to amend Section 309 of, to repeal
and repeal Sections 500, 2580, and 2584 of, and
to amend, add, and repeal and add
Sections 2582 and 2583 of, and to amend, repeal, and
add Section 309 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 , until January 1, 2018, 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 , until January 1, 2018, 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 make these
provisions inoperative until January 1, 2018 .
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 gain, 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 make these
provisions inoperative until January 1, 2018 . This bill
would instead permit the department to impose administrative civil
penalties, determined as prescribed, upon any person who has violated
any provision of the Fish and Game Code or regulations adopted
pursuant to the code. This bill would require the department to adopt
regulations that include a fee schedule to provide guidance in
assessing these civil penalties. This bill would require, prior to
the imposition of administrative penalties, a person to be given a
written notice of the proposed action. This bill would require a
person who receives notice of a proposed penalty 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 and who appeared at a hearing person to
appeal to the director if administrative penalties are imposed
upon that person , as prescribed. This bill would 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. This bill
would repeal these provisions as of January 1, 2018.
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
be made promptly available to any person upon payment of copying
costs. The act makes certain records exempt from disclosure.
This bill would, until January 1, 2018, and 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. (a) 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.
(b) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
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 2582 of the Fish and Game Code
is repealed.
SEC. 2. Section 309 is added to the Fish
and Game Code , to read:
309. (a) 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 out of the state, to be taken in the
manner prescribed by law for deposition in civil actions in the
superior courts of this state under the Civil Discovery Act (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. Except upon conviction of a violation of this code or a
regulation adopted pursuant to this code relating to the licensed or
permitted activity and notwithstanding any other provision of this
code, the commission shall not revoke or suspend any license or
permit until the regulations required by this section have been
adopted and approved by the Office of Administrative Law pursuant to
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code.
(b) Any deliberation conducted by the commission, or conducted by
any person appointed by the commission to conduct hearings, is deemed
to be a proceeding required to be conducted pursuant to Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code or similar provision, within the meaning of
paragraph (3) of subdivision (c) of Section 11126 of the Government
Code.
(c) This section shall become operative on January 1, 2018.
SEC. 3. Section 500 of the Fish and
Game Code is amended to read:
500. (a) The commission shall, by regulation, adopt guidelines to
assist the director and the department in ascertaining the amount of
civil penalties to be imposed pursuant to Section 2582 or 2583. The
guidelines may include monetary amounts or ranges of monetary amounts
that the commission finds are adequate to deter illegal actions and
partially compensate the people of California for losses to the fish
and wildlife resources from illegal transactions described in Section
2582 or 2583 for profit or personal gain.
(b) If the violation involves birds, mammals, amphibians,
reptiles, or fish with a value in the aggregate of less than four
hundred dollars ($400) and involves only the transportation, taking,
or receipt of fish or wildlife taken or possessed in violation of
this code, the guidelines shall provide that the civil penalty shall
not exceed the maximum criminal fine provided by law for the
violation in this code or ten thousand dollars ($10,000), whichever
is less. For purposes of this section, "value" means the retail
market value if a market value exists, the potential monetary gain to
the accused or, for commercial species, the established retail
market value.
(c) The guidelines 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.
(d) Nothing in this chapter or in Chapter 6.5 (commencing with
Section 2580) of Division 3 shall be used to establish a monetary
value for fish or wildlife resources in connection with any
development, project, or land or water use plan or activity as
permitted by any federal, state, or local governmental activity. This
chapter does not apply to any action brought to recover civil
damages under Section 2014.
(e) This section shall become inoperative on January 1, 2013, and
shall become operative on January 1, 2018.
SEC. 4. Section 2580 of the Fish and
Game Code is amended to read:
2580. (a) The definitions in this section
govern the construction of this chapter.
(a)
(1) "Qualified hearing officer" means an attorney
admitted to the State Bar of California who is knowledgeable in fish
and wildlife law.
(b)
(2) "Transport" means to move, convey, carry, or ship
by any means, or to deliver or receive for the purpose of movement,
conveyance, carriage, or shipment.
(b) This section shall become inoperative on January 1, 2013, and
shall become operative on January 1, 2018.
SEC. 5. Section 2582 of the Fish and
Game Code is amended to read:
2582. (a) The department may impose civil liability upon any
person pursuant to this chapter for any of the following acts done
for profit or personal gain:
(1) Unlawfully export, import, transport, sell, possess, receive,
acquire, or purchase, or unlawfully assist, conspire, or aid in the
importing, exporting, transporting, sale, possession, receiving,
acquisition, or purchasing of, any bird, mammal, amphibian, reptile,
or fish which are taken or possessed in violation of this code or the
regulations adopted pursuant to this code.
(2) Unlawfully export, import, transport, sell, possess, receive,
acquire, or purchase, or unlawfully assist, conspire, or aid in the
importing, exporting, transporting, sale, possession, receiving,
acquisition, or purchasing of any plants, insects, or other species
listed pursuant to the California Endangered Species Act (Chapter 1.5
(commencing with Section 2050)), which are taken or possessed in
violation of this code or the regulations adopted pursuant to this
code.
(3) Unlawfully export, import, transport, sell, possess, receive,
acquire, or purchase any bird, mammal, amphibian, reptile, or fish,
or any endangered or threatened species, or any fully protected bird,
mammal, or fish which has been taken, possessed, transported, or
sold in violation of this code or the regulations adopted pursuant to
this code.
(4) Unlawfully possess any bird, mammal, amphibian, reptile, or
fish, or any endangered or threatened species, or any fully protected
bird, mammal, or fish which has been taken, possessed, transported,
or sold in violation of this code or any regulations adopted pursuant
to this code within the maritime and territorial jurisdiction of the
state or within the portions of the special maritime jurisdiction of
the United States upon which the State of California exercises
concurrent jurisdiction, either by statute, deputization, or by
contract with the United States.
(5) Having exported, imported, transported, sold, purchased, or
received any bird, mammal, amphibian, reptile, or fish, or any
endangered or threatened species, or any fully protected bird,
mammal, or fish, unlawfully make or submit any false record, account,
label, or identification thereof.
(6) Attempt to commit any unlawful act, or unlawfully attempt to
commit any act, described in paragraphs (1) to (5), inclusive.
(b) The department may impose civil liability upon any person
pursuant to this chapter 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 or package has
previously been plainly marked, labeled, or tagged in accordance with
this code and the regulations adopted pursuant to this code.
(c) The department may impose civil liability upon any person
pursuant to this chapter for any unlawful failure or refusal to
maintain any records or paperwork as required by this code.
(d) This section shall become inoperative on January 1, 2013, and
shall become operative on January 1, 2018.
SEC. 5. SEC. 6. Section 2582 is
added to the Fish and Game Code, to read:
2582. (a) The department may impose administrative civil
penalties upon any person who has violated any provision of this code
or implementing regulations adopted pursuant to this code. Penalties
imposed pursuant to this subdivision shall not exceed those
penalties established in Section 747 of Title 17
14 of the California Code of Regulations. Except as
provided in Section 2583, the proceedings for all hearings conducted
by the department pursuant to this section shall be
conducted in accordance with Chapter 5 4.5
(commencing with Section 11500) 11400)
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 that
have little significant effect upon the resources and greater
penalties for acts that may cause serious injury to the resources.
The civil penalty for a violation punishable as an infraction shall
not exceed an amount higher than the criminal penalty authorized in
statute.
(b) Notwithstanding subdivision (a), any person who, for
personal profit or commercial or financial purposes,
or for profit or personal 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 subdivision by the department
shall not exceed 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.
(c) The department shall adopt regulations that include a fee
schedule to provide guidance in assessing a civil penalty pursuant to
this section.
(d) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 6. Section 2583 of the Fish and Game Code
is repealed.
SEC. 7. Section 2583 of the Fish and
Game Code is amended to read:
2583. (a) Except as provided in subdivision (b), any person who
violates this code or any regulation adopted to carry out this code,
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.
(b) No civil penalties shall be imposed under this chapter until
the guidelines for the imposition of the penalties are adopted by the
commission pursuant to Section 500.
(c) This section shall become inoperative on January 1, 2013, and
shall become operative on January 1, 2018.
SEC. 7. SEC. 8. Section 2583 is
added to the Fish and Game Code, to read:
2583. (a) Prior to the imposition of administrative penalties
under pursuant to Section 2582, a
person shall be given a written notice of the proposed action that
includes the basis for the action. A person who receives notice of a
proposed penalty shall have the right to request a hearing before the
department within 60 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 60 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 relevant 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 the
transcript.
(2) The department hearing officer
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 the effect of the violation
upon natural resources.
(3) If at the hearing the person is ordered to pay an
administrative penalty, the The hearing officer shall
issue a written decision within 30 days after the hearing. If
administrative penalties are imposed upon a person, that person
may appeal to the director within 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 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 director .
(3) The 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 parties
and the director . 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 director shall decide the appeal based on any oral or
written arguments, briefs, and evidence received. The
department director 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
the effect of the violation upon
natural resources.
(6) The 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 director's decision shall
be delivered or mailed to the appellant.
(7) The director may sustain the hearing officer's
decision, modify the decision by reducing
adjusting the amount of the penalty levied, or reverse the
decision.
(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.
(i) For purposes of this section, "director" means the Director of
Fish and Game or a deputy director designated by the Director of
Fish and Game to hear an appeal on his or her behalf.
(j) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 8. Section 2584 of the Fish and Game Code
is repealed.
SEC. 9. Section 2584 of the Fish and
Game Code is amended to read:
2584. (a) Upon an actionable violation, the department shall
consult, as to the appropriate civil or criminal remedy, with the
district attorney in the jurisdiction where the violation was alleged
to have occurred. Before proceeding with a civil action, the
department shall seek the concurrence of the Attorney General.
(b) The director shall appoint a qualified referee or hearing
board, composed of one or any combination of the following persons:
(1) A qualified hearing officer, as defined in subdivision (a) of
Section 2580.
(2) A retired judge of the Superior Court who is knowledgeable in
fish and wildlife law.
(3) A qualified neutral referee, appointed upon petition to the
Superior Court in which the violation was alleged to have occurred.
(c) The director, after investigation of the facts and
circumstances, may issue a complaint to any person on whom a civil
penalty may be imposed pursuant to Section 2582 or 2583. The
complaint shall allege the acts or failures to act that constitute a
basis for a civil penalty and the amount of the proposed civil
penalty. The complaint shall be served by personal service or
certified mail and shall inform the person so served that a hearing
shall be conducted within 60 days after the person has been served,
unless the person waives the right to a hearing. If the person waives
the right to a hearing, the department shall issue an order setting
liability in the amount proposed in the complaint. If the person has
waived the right to a hearing or if the department and the person
have entered into a settlement agreement, the order shall be final.
(d) Any hearing required under this section shall be conducted by
a referee or hearing board according to the procedures specified in
Sections 11507 to 11517, inclusive, of the Government Code, except as
otherwise provided in this section. In making a determination, the
hearing officer may consider the records of the department in the
matter, the complaint, and any new facts brought to his or her
attention by that person. The hearing officer shall be the sole trier
of fact as to the existence of a basis for liability under Section
2582 or 2583. The hearing officer shall make the determination of the
facts of the case and shall prepare and submit the proposed
decision, including recommended penalty assessment, to the director
for his or her review and assistance in the penalty assessment
process.
(e) The director may assess the civil penalty, and may reduce the
amount, or not impose any assessment, of civil penalties based upon
the nature, circumstances, extent, and gravity of the prohibited acts
alleged, and the degree of culpability of the violator; or the
director may enter into a settlement agreement with the person in the
best interests of the state or confirm the amount of civil penalties
contained in the complaint. If the director reduces the amount of
the civil penalty, does not impose the civil penalty, or enters into
a settlement agreement, the director shall seek the recommendation of
the hearing officer and enter into the records of the case the
reasons for that action, including the hearing officer's
recommendation. The decision of the director assessing the civil
penalty is final. The proposed decision is a public record and shall
be served upon the person. The director may approve the proposed
decision in its entirety, or the director may reduce the proposed
penalty and adopt the balance of the proposed decision.
(f) Upon the final assessment of the civil penalty, the department
shall issue an order setting the amount of the civil penalty to be
imposed. An order setting civil liability under this section becomes
effective and final upon the issuance thereof, and payment shall be
made within 30 days of issuance. Copies of the order shall be served
by personal service or by certified mail upon the person served with
the complaint and upon other persons who appeared before the director
and requested a copy. Copies of the order shall be provided to any
person within 10 days of receipt of a written request from that
person.
(g) 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 subdivision, 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.
(h) The records of the case, after all appeals are final, are
public records, as defined in subdivision (d) of Section 6252 of the
Government Code.
(i) This section shall become inoperative on January 1, 2013, and
shall become operative on January 1, 2018.