BILL ANALYSIS �
AB 618
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Date of Hearing: April 30, 2013
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 618 (Perea) - As Introduced: February 20, 2013
As Proposed to be Amended in Committee
SUMMARY : Makes a person who violates any posted regulation
adopted by the San Joaquin River Conservancy (Conservancy)
guilty of an infraction punishable by a maximum fine of $250 and
authorizes any duly-authorized California peace officer to
enforce any regulation adopted by the Conservancy.
EXISTING LAW :
1)Prohibits a state agency from adopting or enforcing any rule
or regulation a violation of which can result in the
imposition of a fine or imprisonment, or both, unless a
statute specifically authorizes the imposition of such fine or
imprisonment, or both, for a violation of the rule or
regulation. (Government Code Section 11145.)
2)Includes felonies, misdemeanors, and infractions as crimes and
public offenses. (Penal Code Section 16.)
3)Provides, generally, that a violation that is an infraction is
punishable by a fine not exceeding $250. (Penal Code Section
19.8(a).)
4)Authorizes the Conservancy to adopt and enforce regulations
governing the use of parkway lands and activities within the
parkway; the protection and management of native riparian
vegetation, wildlife, and other natural resources on parkway
lands; and the protection of archaeological sites. (Public
Resources Code Section 32527.)
5)Provides that the legislative power of this state is vested in
the California Legislature which consists of the Senate and
Assembly, but the people reserve to themselves the powers of
initiative and referendum. (Cal. Const., Article IV, Section
1.)
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The San Joaquin
River Parkway is a regional amenity for the Central Valley and
we should make the most of the potential for our citizens to
enjoy this natural asset. In order for the San Joaquin River
Conservancy to promote the recreational use of their lands
while still protecting the River Parkway, the Conservancy must
have the necessary tools to penalize violators of regulations.
AB 618 would give local agencies responsible for enforcing
park rules an effective mechanism to encourage compliance with
rules and regulations, ensuring that Conservancy land remains
safe and accessible to the public."
2)San Joaquin River Conservancy : The Conservancy was created by
the Legislature through the enactment of AB 2452 (Costa),
Chapter 1012, Statutes of 1992. The Conservancy is tasked
with the acquisition and management of public lands within the
San Joaquin River parkway, which includes approximately 5,900
acres on both sides of the San Joaquin River between Friant
Dam and the Highway 99 crossing. (Public Resources Code
Section 32510.) Additionally, the Conservancy is responsible
for the operation and maintenance of the parkway and is
required to close to the public any lands or facilities that
it is unable to maintain in a clean and safe manner and to
adequately protect the wildlife and rights of adjacent
property owners from the public. (Public Resources Code
Section 32511.)
The Conservancy's governing board consists of 15 voting members
made up as follows:
a) A member of the Fresno County Board of Supervisors;
b) The mayor of the City of Fresno or a Fresno city
councilmember;
c) A member of the Madera County Board of Supervisors;
d) The mayor of the City of Madera or a Madera city
councilmember;
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e) Three citizen representatives appointed by the Governor,
as specified;
f) The Executive Director of the Wildlife Conservation
Board or a designated staff member;
g) The Secretary of Resources or a designated staff member;
h) The Director of Fish and Game or a designated staff
member.
i) The Director of Parks and Recreation or a designated
staff member;
j) The Director of Finance or a designated staff member;
aa) The Executive Officer of the State Land Commission or a
designated staff member;
bb) The chairperson of the Fresno Metropolitan Flood Control
District Board of Directors or a designee; and
cc) The chairperson of the Madera Irrigation District Board
of Directors or a designee. (Public Resources Code Section
32515.)
3)Delegation of Legislative Authority : The California
Constitution states that "[t]he legislative power of this
State is vested in the California Legislature which consists
of the Senate and Assembly, but the people reserve to
themselves the powers of initiative and referendum." (Cal.
Const., Article IV, Section 1.) In Ex Parte Cox (1883) 63
Cal.21, the Supreme Court interpreted this section as a
prohibition on a legislative grant of power to a state agency
to create misdemeanor offenses. In Cox , the Legislature
enacted legislation that gave the officer of the Board of
State Viticultural Commissioners, subject to the board's
approval, the power to declare and enforce rules and
regulations relating to the purpose of the board and declared
that a willful violation of board regulations was a
misdemeanor. (Id.) The Court held that "[t]he legislature
had not authority to confer upon the officer or board the
power of declaring what acts should constitute a misdemeanor.
(Id.) In providing clarification on the prohibition of the
delegation of legislative authority relative to the creation
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of criminal offenses, the courts subsequently held that the
Legislature can delegate the power to make rules and
regulations so long as it retains the power to fix the
penalties of the offenses created. ( Moore v. Municipal Court
of Salinas Judicial District (1959) 170 Cal.App.2d 548,
556-57.)
While this bill delegates to the Conservancy the ability to
create infractions, it sets the penalty for such offenses as
provided by state law. Consequently, this bill does not
appear to be an unconstitutional delegation of legislative
power. A policy consideration this bill raises, however, is
whether it is appropriate for the Legislature to delegate
authority to create crimes to a body whose members are made up
primarily of individuals who do not stand for election and
therefore are not held accountable directly to the public.
4)Argument in Support : According to the San Joaquin River
Parkway and Conservation Trust, Inc. , "The Bill provides the
Conservancy with common sense mechanisms it needs to enforce
Conservancy regulations in order to accomplish its mission to
advance natural resource stewardship and outdoor recreation.
Though the existing law provides the Conservancy with the
ability to set regulations, the agency currently does not have
the authority to enforce violations with fines or penalties.
Your Bill, AB 618 provides an important remedy for this
oversight, providing a much needed tool to safeguard public
lands and provide safe outdoor experiences for the visiting
public."
5)Prior Legislation :
a) SB 190 (Costa), Chapter 610, Statutes of 1995,
authorized the Conservancy to award grants and to lease,
rent, sell, exchange, or transfer any real property to a
local, state, or federal agency; nonprofit organizations;
individuals; or other entities for management purposes.
b) AB 2452 (Costa), Chapter 1012, Statutes of 1992, created
the San Joaquin River Conservancy.
REGISTERED SUPPORT / OPPOSITION :
Support
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Fresno Metropolitan Flood Control District Board of Directors
Madera County Board of Supervisors
RiverTree Volunteers, Inc.
Sam Joaquin River Conservancy
San Joaquin River Parkway and Conservation Trust
Opposition
None
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744
AB 618
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PROPOSED AMENDMENTS TO ASSEMBLY BILL NO. 618
(Amendments are in bold and underlined.)
The people of the State of California do enact as follows:
SECTION 1. Section 32527.5 is added to the Public Resources
Code, to read:
32527.5. (a) A person who violates any of the posted regulations
adopted by the conservancy governing lands owned or managed by
the conservancy is guilty of a misdemeanor an infraction
punishable by a fine not exceeding two hundred fifty dollars
($250). of up to one thousand dollars ($1,000), or imprisonment
in the county jail not exceeding 90 days, or by both the fine
and imprisonment, except that the judge may, upon the
recommendation of the prosecuting attorney, reduce the charged
offense from a misdemeanor to an infraction. A person convicted
of the offense after this reduction shall be punished by a fine
of not less than one hundred dollars ($100) nor more than five
hundred dollars ($500).
(b) Any regulation adopted by the conservancy governing lands
owned or managed by the conservancy may be enforced by any duly
authorized California peace officer.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution
because the only costs that may be incurred by a local agency or
school district will be incurred because this act creates a new
crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the
meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article
XIIIB of the California Constitution.