BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2179|
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THIRD READING
Bill No: AB 2179
Author: Allen (D)
Amended: 8/21/12 in Senate
Vote: 21
SENATE NATURAL RESOURCES AND WATER COMMITTEE : 6-2, 06/26/12
AYES: Pavley, Evans, Kehoe, Padilla, Simitian, Wolk
NOES: La Malfa, Cannella
NO VOTE RECORDED: Fuller
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 41-28, 05/30/12 - See last page for vote
SUBJECT : Fish and game: enforcement and penalties
SOURCE : Author
DIGEST : This bill 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.
ANALYSIS :
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,
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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.
This bill:
1.Repeals existing law which authorizes DFG to impose civil
liability upon any person who commits specified unlawful
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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
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
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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.
1.Strikes obsolete language prohibiting the Fish and Game
Commission (FGC) from revoking or suspending a license or
permit until regulations are adopted.
2.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.
3.Requires DFG to adopt regulations to provide guidance in
assessing civil penalties.
Background
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.
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.
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.
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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 assess the penalty as
proposed, to reduce the amount, or to enter a settlement
agreement, any of which are said to be final decisions.
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.
Code violations are predominately misdemeanors. Infractions
are identified in Section 12000 and 12002.2.1. There are
very few felony provisions.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/21/12)
Born Free USA
Humane Society
PAW PAC
Public Interest Coalition
San Francisco Wildlife Center
OPPOSITION : (Verified 8/21/12)
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
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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
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
ARGUMENTS IN SUPPORT : Supporters note the existing civil
administrative hearing process for DFG is overly
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complicated and expensive, and as a result is seldom used.
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.
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
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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 this bill allows
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.
ASSEMBLY FLOOR : 41-28, 5/30/12
AYES: Allen, Ammiano, Atkins, Beall, Block, Blumenfield,
Bradford, Brownley, Butler, Charles Calderon, Campos,
Carter, Cedillo, Dickinson, Eng, Feuer, Fong, Fuentes,
Furutani, Gatto, Hall, Hayashi, Roger Hern�ndez, Hill,
Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, Mendoza,
Mitchell, Monning, V. Manuel P�rez, Portantino, Skinner,
Solorio, Swanson, Torres, Williams, Yamada, John A. P�rez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Beth Gaines, Galgiani, Garrick, Gorell, Grove, Hagman,
Halderman, Harkey, Huber, Jeffries, Jones, Knight, Logue,
Mansoor, Miller, Morrell, Nestande, Nielsen, Norby,
Olsen, Silva, Smyth, Wagner
NO VOTE RECORDED: Alejo, Bonilla, Buchanan, Chesbro,
Davis, Fletcher, Gordon, Pan, Perea, Valadao, Wieckowski
CTW:d 8/21/12 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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