BILL ANALYSIS �
AB 2179
Page 1
ASSEMBLY THIRD READING
AB 2179 (Allen)
As Amended May 25, 2012
Majority vote
WATER, PARKS & WILDLIFE 9-4
APPROPRIATIONS 12-5
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|Ayes:|Huffman, Blumenfield, |Ayes:|Fuentes, Blumenfield, |
| |Campos, Fong, Williams, | |Bradford, Charles |
| |Roger Hern�ndez, Hueso, | |Calderon, Campos, Davis, |
| |Lara, Yamada | |Gatto, Hall, Hill, Lara, |
| | | |Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Halderman, Bill |Nays:|Harkey, Donnelly, |
| |Berryhill, | |Nielsen, Norby, Wagner |
| |Beth Gaines, Jones | | |
| | | | |
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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
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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
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; and,
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.
4)Requires DFG to adopt regulations that include a fee schedule
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to provide guidance in assessing civil penalties.
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.
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.
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FISCAL EFFECT : According to the Assembly Appropriations
Committee, net cost to DFG to exercise its new authority should
be minor and absorbable.
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. 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 current 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.
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. Lack of prosecution sends a
message that violators do not have to fear the consequences of
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,
since 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 hearing process 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
than most of the penalties that would be levied.
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
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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.
Opponents assert this bill would allow relatively minor Fish and
Game offenses, including infractions and unintentional
violations to be subject to severe penalties which could
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, and deletes recommendations on monetary penalties
based on the retail market value of the wildlife. 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.
Amendments taken to this bill in the Assembly Water, Parks and
Wildlife Committee 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 penalty amounts
authorized under existing law for such violations. The
amendments adopted in the Assembly Appropriations Committee also
require DFG to adopt regulations establishing a fee schedule to
guide assessment of civil penalties.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096
FN:
0003770
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