BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 2179 HEARING DATE: June 26, 2012
AUTHOR: Allen URGENCY: No
VERSION: May 25, 2012 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Fish and game: enforcement and penalties.
BACKGROUND AND EXISTING LAW
1. The Department of Fish and Game (DFG) is currently authorized
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. The civil penalty provisions are 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. Guidelines to assist DFG in ascertaining the amount of civil
penalties were adopted as required by law in Title 14,
California Code of Regulations, Section 747.
4. Consultation between DFG and the District Attorney on the
appropriate civil or criminal remedies and the concurrence of
the Attorney General is required under existing law. The
director is required to appoint a qualified referee or hearing
board, as specified, and to establish a procedure for service of
complaints. The law requires that hearings be conducted unless
waived, and specifies that the hearings be conducted pursuant to
the Administrative Procedures Act. The director is authorized to
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assess the penalty as proposed, to reduce the amount, or to
enter a settlement agreement, any of which are said to be final
decisions.
5. Any person served with a final order for a civil penalty may
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.
6. Code violations are predominately misdemeanors. Infractions
are identified in Section 12000 and 12002.2.1. There are very
few felony provisions.
PROPOSED LAW
This bill restructures the civil penalty authority at DFG and
authorizes it 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.
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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. The bill 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. The bill would also authorize 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. Deletes obsolete language prohibiting the Fish and Game
Commission (FGC) from revoking or suspending a license or permit
until regulations are adopted.
3. Deletes provision 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.
ARGUMENTS IN SUPPORT
Supporters note the existing civil administrative hearing
process for DFG is overly complicated and expensive, and as a
result is seldom used. Criminal courts are increasingly unable
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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.
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 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.
Quite recently, the Legislature has also required DFG to
consider civil penalties. Last year, for example, SB 369 (Evans)
extended criminal and civil penalties to violators of
California's Dungeness crab fishery laws.
ARGUMENTS IN OPPOSITION
Opponents such as the California Waterfowl Association assert
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this bill would allow relatively minor Fish and Game offenses,
including unintentional violations to be subject to severe
penalties. They fear 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 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.
COMMENTS
A civil penalty is a term used to describe when monetary relief
is obtained against an individual as restitution for wrongdoing
by the individual. The civil fine is not considered to be a
criminal punishment, because it is primarily sought in order to
compensate the state for harm done to it, rather than to punish
the wrongful conduct. As such, a civil penalty will not carry
jail time or other legal penalties.
Staff believes there is general agreement among supporters and
opposition that existing law, and the proposed amendments to
this bill, make it clear that civil penalties, when applied,
would be limited to no more than what the penalty would be that
is established in regulations that have long been in effect at
the Fish and Game Commission or the maximum criminal fine
provided by law for the violation, or $10,000, whichever is
less. Phrased slightly differently, under the proposed amendment
which would establish a fee schedule, the penalty for violations
that are classified as misdemeanors would be no more than what
is contained in the current regulation.
The opposition's main point that the penalties might be
disproportionately high may have been addressed by the proposed
Amendment 2 below that would remove the $20,000 cap on
penalties. The opposition has included conclusory comments in
its letters defending the current civil penalty provisions, but
it has not explained the wisdom of requiring a civil penalty to
be approved by the District Attorney and the Attorney General
which is currently required. Nor has the opposition explained
why the existing penalty provisions justifiably limit penalties
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to instances in which a violation was motivated by economic
gain.
These penalties would be applied, if at all, after a hearing at
which the alleged violator would appear. As with the proposed
law discussed earlier, the referenced regulation specifically
allows for mitigating factors to be considered, including the
gravity of the violation, the effect of the violation on the
resources of the state, the character of the violator, his or
her degree of culpability, and other factors.
All civil penalties would include the fair market value of the
wildlife, if it can be determined, plus an additional monetary
amount. These additional monetary amounts in most instances
range from $400-$10,000. However, there are many that are below
that threshold starting at $50 (for resident small game,
migratory game birds, nongame birds, nongame mammals, and
reptiles).
For violations that involve wildlife valued at less than $400,
the civil penalty (as provided in the regulations of the
commission that would be incorporated into this bill) would not
exceed the maximum criminal fine for that offense or $10,000
whichever is less.
SUGGESTED AMENDMENTS
To partially alleviate concerns raised by the opposition, the
author has agreed to the following amendments:
AMENDMENT 1
Reinstate Section 2581 which was deleted in a drafting error.
AMENDMENT 2
Delete the proposed penalty cap of $20,000 and to substitute the
penalty provisions and amounts contained currently in
regulations of the Fish and Game Commission in 14 CCR 747. Those
regulations place valuations on specific species starting at
$50. However, some serious violations carry a penalty of $10,000
as reflected in the comments.
AMENDMENT 3
Reinstate the existing 60 day provision for an alleged violator
to request a hearing.
SUPPORT
Born Free USA
PAW PAC
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Public Interest Coalition
Humane Society
San Francisco Wildlife Center
OPPOSITION
Agricultural Council of California
American Council of Engineering Companies California
Animal Pest Management Services, Inc.
Association of California Water Agencies
California Aquaculture Association
California Association for Recreational Fishing
California Association of Pest Control Advisers
California Association of REALTORS
California Bean Shippers Association
California Building Industry Association
California Business Properties Association
California Cattlemen's Association
California Cement Manufacturers Environmental Coalition
California Chamber of Commerce
California Citrus Mutual
California Cotton Growers Association
California Council for Environmental and Economic Balance
California Farm Bureau Federation
California Fisheries and Seafood Institute
California Forestry Association
California Grain and Feed Association
California Grape and Tree Fruit League
California Lobster and Trap Fishermen's Association
California Manufacturers and Technology Association
California Outdoor Heritage Alliance
California Pear Growers Association
California Sea Urchin Commission
California Seed Association
California State Sheriffs' Association
California Waterfowl Association
California Wetfish Producers Association
California Wheat Growers Association
Can Manufacturers Institute
Fishermen's Association of Moss Landing
Kern County Water Agency
Kings River Conservation District
Kings River Water Association
Nisei Farmers League
Outdoor Sportsmen's Coalition of California
Pacific Egg and Poultry Association
Safari Club International
San Francisco Crab Boat Owners' Association
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Sportfishing Association of California
The Alliance of Communities for Sustainable Fisheries
The Sportfishing Conservancy
United Anglers of Southern California
Western Agricultural Processors Association
Western Growers Association
Western Plant Health Association
Western States Petroleum Association
Wine Institute
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