Bill Text: CA AB2179 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Fish and game: enforcement and penalties.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2012-08-31 - Ordered to inactive file at the request of Senator Kehoe. [AB2179 Detail]

Download: California-2011-AB2179-Amended.html

---

BILL NUMBER: AB 2179	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JULY 3, 2012
	AMENDED IN ASSEMBLY  MAY 25, 2012
	AMENDED IN ASSEMBLY  APRIL 26, 2012
	AMENDED IN ASSEMBLY  APRIL 18, 2012

INTRODUCED BY   Assembly Member Allen

                        FEBRUARY 23, 2012

   An act to amend Section 309 of, to repeal Sections 500, 
2580,and   2580, and  2584 of, and to repeal and
add Sections 2582 and 2583 of, the Fish and Game Code, relating to
fish and game.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2179, as amended, Allen. Fish and game: enforcement and
penalties.
   Existing law authorizes the Fish and Game Commission, or any
person appointed by the commission, to conduct a hearing, to cause
the deposition of witnesses, as prescribed, and to compel the
attendance of witnesses and the production of documents and papers,
in accordance with certain requirements.
   This bill would eliminate the prohibition that the commission not
revoke or suspend any license or permit until specified regulations
have been adopted and approved, as specified. This bill would also
eliminate the provision that any deliberation conducted by the
commission, or conducted by any person appointed by the commission to
conduct a hearing, is required to be conducted pursuant to the law
governing administrative adjudication.
   Existing law requires the commission to adopt guidelines, by
regulation, to assist the director and the department in ascertaining
the amount of specified civil penalties, as prescribed.
   This bill would repeal these provisions.
   Existing law permits the Department of Fish and Game to impose
civil liability upon any person for specified acts, with prescribed
exceptions, done for profit or personal  again  
gain  , for unlawfully exporting, importing, possessing,
receiving, or transporting in interstate commerce any container or
package containing any bird, mammal, amphibian, reptile, or fish, or
any endangered or threatened species, or any fully protected bird,
mammal, or fish unless the container is marked as prescribed, and for
any unlawful failure or refusal to maintain any records or paperwork
as required. Under existing law, the department may assess a civil
penalty of not more than $10,000 for each bird, mammal, amphibian,
reptile, or fish, or for each endangered or threatened species, or
each fully protected bird, mammal, or fish unlawfully taken,
possessed, transported, imported, received, purchased, acquired, or
sold, in addition to any other applicable penalty. Existing law also
requires the department to consult with the district attorney in the
jurisdiction where a violation is alleged to have occurred  ,
and   and,  before proceeding with a civil action,
to seek the concurrence of the Attorney General, as described.
Existing law permits the Director of Fish and Game to issue a
complaint to any person on whom a civil penalty may be imposed, in
accordance with specified provisions, and requires a referee or
hearing board, as provided for, to conduct any required hearing.
   This bill would repeal these provisions. This bill would instead
permit the department to impose administrative civil penalties
 not to exceed $20,000 and   ,  determined
as prescribed, upon any person who has violated any provision of the
 code   Fish and Game Code  or regulations
adopted pursuant to the code. This bill would require the department
to adopt regulations that include a fee schedule to provide guidance
in assessing these civil penalties. This bill would require, prior to
the imposition of administrative penalties, a person to be given a
written notice of the proposed action. This bill would require a
person who receives notice of a proposed penalty to have the right to
request a hearing before the department in accordance with specified
procedures. This bill would permit the department to take the action
proposed without a hearing if a hearing is not requested. This bill
would permit a party ordered to pay an administrative penalty and who
appeared at a hearing to appeal to the director, as prescribed. This
bill would permit a person served with a copy of an order setting
the amount of a civil penalty to file with the superior court a
petition for a writ of mandate for review of the order, as specified.
This bill would permit the department to file a certified copy of
the final decision that directs payment of an administrative penalty
and, if applicable, any order that denies a petition for a writ of
administrative mandamus with the clerk of the superior court of any
county, would require the clerk to enter judgment, and would prohibit
the clerk from charging fees for the performance of any official
service required in connection with this entry of judgment. This bill
would require any administrative penalties received pursuant to
these provisions to be deposited into the Fish and Game Preservation
Fund.
   Existing law, the California Public Records Act, requires any
public record of a state or local agency to be open to inspection at
all times during office hours of the agency and, upon request, a copy
 shall  be made promptly available to any person
upon payment of copying costs. The act makes certain records exempt
from disclosure.
   This bill would, after all appeals are final, provide that records
of the appeal to the director are public records, as defined by the
act.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 309 of the Fish and Game Code is amended to
read:
   309.  The commission or any person appointed by it to conduct a
hearing may, in any investigation or hearing, cause the deposition of
witnesses, residing within or without the state, to be taken in the
manner prescribed by law for deposition in civil actions in the
superior courts of this state under Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure, and may compel
the attendance of witnesses and the production of documents and
papers. The commission shall adopt regulations that afford procedural
and substantive due process to any person whose license or permit is
subject to revocation or suspension by the commission.
  SEC. 2.  Section 500 of the Fish and Game Code is repealed.
  SEC. 3.  Section 2580 of the Fish and Game Code is repealed.
  SEC. 4.  Section 2582 of the Fish and Game Code is repealed.
  SEC. 5.  Section 2582 is added to the Fish and Game Code, to read:
   2582.  (a) The department may impose administrative civil
penalties  not to exceed twenty thousand dollars ($20,000)
 upon any person who has violated any provision of this code
or implementing regulations adopted pursuant to this code. 
Penalties imposed pursuant to this subdivision shall not exceed those
penalties established in  Section 747 of Title 17 of the
California Code of Regulations.  Except as provided in Section
2583, the proceedings for all hearings conducted by the department
shall be conducted in accordance with Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. The department shall have all of the powers granted in that
chapter. The monetary amounts 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 acts committed
and the degree of culpability of the violator, including lesser
penalties for acts  which  that  have
little significant effect upon the resources and greater penalties
for acts  which   that  may cause serious
injury to the resources. The civil penalty for a violation punishable
as an infraction shall not exceed an amount higher than the criminal
penalty authorized in statute.
   (b) Notwithstanding subdivision (a), any person who, for personal
profit or gain, violates this code or any regulation adopted to carry
out this code, including, but not limited to, violations of Section
12012 or 12013, and with the exercise of due care, should have known
that the birds, mammals, amphibians, reptiles, or fish, or the
endangered or threatened species, or the fully protected birds,
mammals, or fish were taken, possessed, transported, imported,
received, purchased, acquired, or sold in violation of, or in a
manner unlawful under this code, may be assessed a civil penalty. The
civil penalty imposed under this chapter by the department shall not
 be more than   exceed  ten thousand
dollars ($10,000) for each bird, mammal, amphibian, reptile, or fish,
or for each endangered or threatened species, or each fully
protected bird, mammal, or fish unlawfully taken, possessed,
transported, imported, received, purchased, acquired, or sold. This
civil penalty may be in addition to any other penalty, civil or
criminal, provided in this code or otherwise by law.
   (c) The department shall adopt regulations that include a fee
schedule to provide guidance in assessing a civil penalty pursuant to
this section.
  SEC. 6.  Section 2583 of the Fish and Game Code is repealed.
  SEC. 7.  Section 2583 is added to the Fish and Game Code, to read:
   2583.  (a) Prior to the imposition of administrative penalties
under Section 2582, a person shall be given a written notice of the
proposed action that includes the basis for the action. A person who
receives notice of a proposed penalty shall have the right to request
a hearing before the department within  30   60
 days after receiving the denial or notice of the proposed
action. A notice of the proposed action that is sent by certified
mail to the last known address of the person against whom the action
is proposed shall be considered received even if delivery is refused
or the notice is not accepted at that address.
   (b) If a hearing is requested within  30   60
 days of receipt of the notice of the proposed action, notice
of the time and place of the hearing shall be given at least 10 days
before the date set for the hearing. A deferral of the hearing shall
be granted upon reasonable cause, not to exceed 20 days from the date
of the original hearing date.
   (c) (1) At the hearing, the person shall be given an opportunity
to present any evidence or argument on his or her own behalf. Oral
testimony may be given by telephone in lieu of attending a hearing.
This testimony shall be recorded and made part of the record.
Recorded testimony shall be kept for 180 days or until the judgment
is final. A transcription shall be provided to a party upon payment
of a reasonable fee for the cost of obtaining the transcript.
   (2) The department shall take into consideration the nature of the
violation, the circumstances, extent, and gravity of the prohibited
acts committed, the degree of culpability of the violator, and, in
deliberation, the department shall take into consideration acts that
have little significant effect upon resources and acts that have more
significant effect upon resources.
   (3) If at the hearing the person is ordered to pay an
administrative penalty  ,  the person may appeal to the
director within 30 days of mailing or personal service of the
department's decision.
   (d) If a hearing is not requested in a timely manner, the
department may take the action proposed without a hearing.
   (e) The following shall apply to an appeal to the director:
   (1) The appeal shall be in writing and signed by the appellant or
his or her authorized agent and shall state the grounds for the
appeal.
   (2) Any party, at the time of filing the appeal or within 10 days
of the filing, may present written evidence and a written argument to
the secretary.
   (3) The director may grant oral arguments upon application made at
the time written arguments are made.
   (4) If an application to present an oral argument is granted,
written notice of the time and place for the oral argument shall be
given at least 10 days prior to the date set for the oral argument.
This time requirement may be changed upon agreement between the
commission and the person appealing. Oral testimony may be given by
telephone in lieu of attending a hearing. This testimony shall be
recorded and made part of the record. Recorded testimony shall be
kept for 180 days or until the judgment is final. A transcription
shall be provided to a party upon payment of a reasonable fee for the
cost of obtaining the transcript.
   (5) The director shall decide the appeal based on any oral or
written arguments, briefs, and evidence received. The department
shall take into consideration the nature of the violation, the
circumstances, extent, and gravity of the prohibited acts committed,
the degree of culpability of the violator, and, in deliberation, the
department shall take into consideration acts that have little
significant effect upon resources and acts that have more significant
effect upon resources.
   (6) The director shall render a written decision within 45 days of
the date of the appeal  ,  or within 15 days of the
date of oral arguments. A copy of the director's decision shall be
delivered or mailed to the appellant.
   (7) The director may sustain the decision, modify the decision by
reducing the amount of the penalty levied, or reverse the decision.
   (8) Within 30 days after service of a copy of an order setting the
amount of the civil penalty, any person so served may file with the
superior court a petition for a writ of mandate for review of the
order. In all proceedings pursuant to this paragraph, the court shall
exercise its independent judgment on the evidence in the whole
record. The filing of a petition for a writ of mandate shall not stay
any other civil or criminal action.
   (f) The records of the appeal pursuant to subdivision (e), after
all appeals are final, are public records, as defined in subdivision
(e) of Section 6252 of the Government Code.
   (g) After completion of the review procedure provided in this
section, the department may file a certified copy of the final
decision that directs payment of an administrative penalty and, if
applicable, any order that denies a petition for a writ of
administrative mandamus, with the clerk of the superior court of any
county. Judgment shall be entered by the clerk in conformity with the
decision or order. No fees shall be charged by the clerk of the
superior court for the performance of any official service required
in connection with the entry of judgment pursuant to this section.
   (h) Any administrative penalties received pursuant to this section
shall be deposited in the Fish and Game Preservation Fund.
  SEC. 8.  Section 2584 of the Fish and Game Code is repealed.