BILL ANALYSIS �
AB 2179
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
AB 2179 (Allen) - As Amended: April 18, 2012
SUBJECT : Department of Fish and Game; Civil Administrative
Penalty Authority
SUMMARY : Authorizes the Department of Fish and Game (DFG) to
impose administrative civil penalties for a violation of the
Fish and Game Code or implementing regulations, subject to
specified conditions. Specifically, this bill :
1)Repeals existing law which authorizes DFG to impose civil
liability upon any person who commits specified unlawful acts
for profit or personal gain and to impose civil penalties of
up to $10,000 per animal against any person who violates the
code or regulations and should have known that the actions
were unlawful under the code, and instead does all of the
following:
a) Authorizes DFG to impose administrative civil
penalties not to exceed $20,000 upon any person who has
violated any provision of the Fish and Game Code or
implementing regulations.
b) Provides that the civil penalties 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 act, and the degree
of culpability of the violator, including lesser
penalties for acts which have little significant effect
upon the resource and greater penalties for acts causing
serious injury to the resource.
c) Provides that the civil penalty for a violation
punishable as an infraction shall not exceed an amount
higher than the criminal penalty authorized in statute.
d) Provides that a violation committed for profit or
gain which the person should have known was unlawful, may
be assessed a civil penalty not more than $10,000 for
each animal unlawfully taken, possessed, transported,
imported, received, purchased, acquired or sold.
e) Requires prior to imposition of administrative
penalties, that the person assessed be given written
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notice and the right to request a hearing. Allows oral
testimony to be taken by telephone in lieu of attendance
at the hearing.
f) Authorizes a person ordered to pay an administrative
civil penalty at a hearing to appeal the decision to the
director of DFG. Authorizes the director to decide the
appeal based on written or oral arguments and evidence
received.
g) Authorizes a person ordered to pay a civil penalty
to file a petition for writ of mandate for review of the
order with a superior court which shall exercise its
independent judgment on the evidence on the whole record.
2)Strikes obsolete language prohibiting the Fish and Game
Commission (FGC) from revoking or suspending a license or
permit until regulations are adopted.
3)Strikes language requiring the FGC to adopt regulations to
guide DFG on the amount of civil penalties that should be
imposed under existing provisions of law relating to actions
for profit or personal gain that this bill would repeal, and
basing the amount of the fine on the retail market value of
the animal.
EXISTING LAW :
1)Authorizes DFG to impose civil liability upon any person who
commits certain unlawful acts involving animals for profit or
personal gain, including exporting, importing, transporting,
selling, possessing, receiving, acquiring or purchasing plants
or animals taken in violation of the code, or for falsifying
or failing to maintain records.
2)Authorizes DFG to impose a civil penalty not to exceed $10,000
per animal against any person who violates the Fish and Game
Code or regulations and with the exercise of due care should
have known that the animals were taken, possessed,
transported, imported, received, purchased, acquired or sold
in violation of or in a manner unlawful under the code.
3)Requires that the civil penalties may not be assessed until
the FGC by regulation adopts guidelines to assist DFG and the
director in ascertaining the amount of civil penalties to be
imposed. Such regulations were adopted and are contained in
California Code of Regulations, Title 14, Section 747.
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4)Requires DFG to consult with the District Attorney as to
appropriate civil or criminal remedies and to seek the
concurrence of the Attorney General. Requires the director to
appoint a qualified referee or hearing board, as specified,
and establishes a procedure for service of complaints.
Requires a hearing to be conducted unless waived, and requires
hearings to be conducted by a referee or hearing board
according to the Administrative Procedures Act, except as
otherwise specified. Provides that the hearing officer shall
be the sole trier of fact and shall submit a proposed decision
to the DFG director for review. Authorizes the director to
assess the penalty as proposed, to reduce the amount, or to
enter a settlement agreement, and provides that the decision
of the director is final.
5)Authorizes any person served with a final order for a civil
penalty to file a petition for a writ of mandate in the
Superior Court, which shall exercise its independent judgment
on the evidence in the whole record.
FISCAL EFFECT : Unknown
COMMENTS : The intent of this bill as described by the author
is to authorize DFG to implement a more effective administrative
civil penalty process, with appeal of civil penalty decisions to
the director and the superior court. Currently, the existing
law authorizing DFG to assess civil penalties lacks clarity as
to the specific violations which may be subject to civil
penalties, and appears only to authorize civil penalties for
unlawful acts committed for profit or personal gain, such as
commercialization of wildlife. The process is also rarely used
due to the cost and time involved in the formal hearing process
required. As criminal courts are increasingly unable to provide
the resources to prosecute misdemeanor violations of the Fish
and Game Code, an effective and efficient civil administrative
penalty process is needed to provide a deterrent for Fish and
Game Code violations.
Background information provided by the author notes that most
violations of the Fish and Game code are punishable as
misdemeanors. As criminal courts experience backlogs and
reduced resources, the rate of prosecution of Fish and Game Code
violations continues to drop. A lack of prosecution sends a
message that violators do not have to fear the consequences of
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their actions. The author emphasizes that enforcement and
prosecution of violations is critical to protecting fish and
wildlife and managing state resources in a sustainable manner.
Deterrence depends on effective enforcement.
This bill also seeks to provide DFG with a more efficient
hearing process that provides benefits for both DFG and
respondents. The author and supporters assert that a more
efficient and informal civil administrative hearing process will
provide DFG with an administrative enforcement option for
violations that are not being prosecuted criminally. The
current law, by requiring all civil administrative hearing of
DFG to be conducted pursuant to Government Code Sections 11507
and 11517, is cost prohibitive for DFG to implement except for
all but the most serious violations, and requires DFG to expend
more resources in adjudicating the civil penalties that most of
the penalties that would be levied. Thus, DFG's current civil
penalty authority is rarely used.
The Legislature has provided other boards and departments with
authority to conduct informal civil administrative hearings,
sometimes referred to as "cite and fine" authority. The author
indicates the hearing procedure in this bill was patterned after
the process followed by the Department of Agriculture.
Support Arguments : Supporters note the existing civil
administrative hearing process for DFG is overly complicated and
expensive, and as a result is seldom used. At the same time
criminal courts are increasingly unable to provide the resources
to prosecute wildlife violations especially for misdemeanors
which represent the majority of Fish and Game Code violations.
As a result, many violators fail to be held accountable for
their actions and have no incentive to comply with the law.
Enforcement is critical to DFG's ability to meet the
expectations of the public and protect the wildlife of
California. Increasing the ability of DFG to enforce violations
through civil administrative penalties should have a deterrent
effect, increasing compliance with wildlife laws and reducing
wildlife law enforcement's burden.
Opposition Arguments : Opponents such as the California
Waterfowl Association assert this bill would allow relatively
minor Fish and Game offenses, including infractions and
unintentional violations to be subject to severe penalties,
including license revocation and increased fines. They fear
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such penalties would discourage participation in hunting and
fishing activities. They also object that this bill removes or
rewrites established civil penalty guidelines which target
commercialization of wildlife, violations which cause
significant harm to the natural resources of the state, or
violations which are committed knowingly, and deletes
recommendations on monetary penalties based on the retail market
value of the wildlife. The Gun Owners of California also oppose
the shifting of authority from the FGC to the DFG for revocation
and suspension of licenses, and authorizing assessment of
penalties up to $20,000. They argue this bill gives penalty
authority to civil service, un-appointed bureaucrats who have a
vested interest in levying fines and penalties in order to fund
their continued existence, and allows DFG to assume the role of
accuser, judge and jury.
Note: The most recent amendments may have addressed some of the
concerns raised by the opposition by removing license suspension
or revocation, and limiting the amount of civil administrative
penalties for infractions to the criminal penalties amounts
authorized under existing law for such violations.
Suggested Amendment : To provide further clarity on the amounts
of civil penalties that should be imposed for different types of
violations, the committee and author may wish to consider an
amendment authorizing DFG to adopt regulations establishing a
fee structure to guide imposition of civil penalties under the
new authority provided by this bill.
REGISTERED SUPPORT / OPPOSITION :
Support
Born Free USA
PAW PAC
Public Interest Coalition
Opposition
California Farm Bureau
California Rifle and Pistol Association, Inc.
California Waterfowl Association
Gun Owners of California
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096
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