Bill Text: NC H1714 | 2010 | Regular Session | Amended
Bill Title: Suspension and Revocation of Fishing Licenses
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Passed) 2010-07-22 - Ch. SL 2010-145 [H1714 Detail]
Download: North_Carolina-2010-H1714-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
H 2
HOUSE BILL 1714*
Committee Substitute Favorable 5/27/10
|
Short Title: Suspension and Revocation of Fishing Licenses. |
(Public) |
|
|
Sponsors: |
|
|
|
Referred to: |
|
|
May 17, 2010
A BILL TO BE ENTITLED
AN ACT to direct the marine fisheries commission to adopt rules related to the suspension, revocation, and reissuance of licenses and to make conforming changes, as recommended by the joint legislative commission on seafood and aquaculture.
The General Assembly of North Carolina enacts:
SECTION 1. The Marine Fisheries Commission shall adopt rules pursuant to and consistent with G.S. 113‑171, as amended by Section 2 of this act, and G.S. 143B‑289.52 for the suspension, revocation, and reissuance of marine resources licenses and permits issued under Articles 14A, 14B, and 25A of Chapter 113 of the General Statutes. Rules adopted pursuant to this section shall not become effective prior to October 1, 2012. In adopting rules pursuant to this section, the Commission shall consider all of the following:
(1) Whether the rules should differentiate between minor and major violations.
(2) How to define minor and major violations.
(3) How service of revocation could be made more efficient.
(4) How the rules should treat violations related to recreational fishing licenses and permits.
(5) Whether violations related to littering or assault on a marine patrol inspector should be treated as grounds for suspension or revocation.
(6) Whether suspension and revocation provisions should be strengthened in cases of harvesting shellfish from polluted waters.
SECTION 2. G.S. 113‑171 reads as rewritten:
"§ 113‑171. Suspension, revocation, and reissuance of licenses.
(a) Upon receipt of reliable notice that a person
licensed under this Article Article, Article 14B, or Article 25A of
Chapter 113 of the General Statutes to take resources under the jurisdiction of
the Marine Fisheries Commission has had imposed against the person a
conviction of a criminal offense within the jurisdiction of the Department
under the provisions of this Subchapter or of rules of the Commission adopted
under the authority of this Subchapter, the Secretary must suspend or revokesuspend,
revoke, and reissue all licenses held by the person in accordance with the
terms of this section.section and rules adopted by the Commission.
Reliable notice includes information furnished the Secretary in prosecution or
other reports from inspectors. As used in this section, a conviction includes a
plea of guilty or nolo contendere, any other termination of a criminal
prosecution unfavorably to the defendant after jeopardy has attached, or any
substitute for criminal prosecution whereby the defendant expressly or
impliedly confesses the defendant's guilt. In particular, procedures whereby
bond forfeitures are accepted in lieu of proceeding to trial and cases
indefinitely continued upon arrest of judgment or prayer for judgment continued
are deemed convictions. The Secretary may act to suspend or revoke licenses
upon the basis of any conviction in which:
(1) No notice of appeal has been given;
(2) The time for appeal has expired without an appeal having been perfected; or
(3) The conviction is sustained on appeal. Where there is a new trial, finality of any subsequent conviction will be determined in the manner set out above.
(b) The Secretary must initiate an administrative
procedure designed to give the Secretary systematic notice of all convictions
of criminal offenses by licensees covered by subsection (a) of this section
above and keep a file of all convictions reported. Upon receipt of notice of
conviction, the Secretary must determine whether it is a first, a second, a
third, or a fourth or subsequent conviction of some offense covered by
subsection (a). In the case of second convictions, the Secretary must suspend
all licenses issued to the licensee for a period of 10 days. In the case of
third convictions, the Secretary must suspend all licenses issued to the
licensee for a period of 30 days. In the case of fourth or subsequent
convictions, the Secretary must revoke all licenses issued to the licensee.
Where several convictions result from a single transaction or occurrence, they
are to be treated as a single conviction so far as suspension or revocation of
the licenses of any licensee is concerned. Anyone convicted of taking or of
knowingly possessing, transporting, buying, selling, or offering to buy or sell
oysters or clams from areas closed because of suspected pollution will be
deemed by the Secretary to have been convicted of two separate offenses on
different occasions for license suspension or revocation purposes.
(c) Where a license has been suspended or
revoked, the former licensee is not eligible to apply for reissuance of license
or for any additional license authorized in this Article during the suspension
or revocation period. Licenses must be returned to the licensee by the
Secretary or the Secretary's agents at the end of a period of suspension. Where
there has been a revocation, application for reissuance of license or for an
additional license may not be made until six months following the date of
revocation. In such case of revocation, the eligible former licensee must
satisfy the Secretary that the licensee will strive in the future to conduct
the operations for which the license is sought in accord with all applicable
laws and rules. Upon the application of an eligible former licensee after
revocation, the Secretary, in the Secretary's discretion, may issue one license
sought but not another, as deemed necessary to prevent the hazard of recurring
violations of the law.
(d) Upon receiving reliable information of a
licensee's conviction of a second or subsequent criminal offense covered by
subsection (a) of this section, the Secretary shall promptly cause the licensee
to be personally served with written notice of suspension or revocation, as the
case may be. The written notice may be served upon any responsible individual
affiliated with the corporation, partnership, or association where the licensee
is not an individual. The notice of suspension or revocation may be served by
an inspector or other agent of the Department, must state the ground upon which
it is based, and takes effect immediately upon personal service. The agent of
the Secretary making service shall then or subsequently, as may be feasible
under the circumstances, collect all license certificates and plates and other
forms or records relating to the license as directed by the Secretary. It is
unlawful for any licensee willfully to evade the personal service prescribed in
this subsection.
(e) A licensee served with a notice of suspension or revocation may obtain an administrative review of the suspension or revocation by filing a petition for a contested case under G.S. 150B‑23 within 20 days after receiving the notice. The only issue in the hearing shall be whether the licensee was convicted of a criminal offense for which a license must be suspended or revoked. A license remains suspended or revoked pending the final decision by the Secretary.
(f) If the Secretary refuses to reissue the license of or issue an additional license to an applicant whose license was revoked, the applicant may contest the decision by filing a petition for a contested case under G.S. 150B‑23 within 20 days after the Secretary makes the decision. The Commission shall make the final agency decision in a contested case under this subsection. An applicant whose license is denied under this subsection may not reapply for the same license for at least six months.
(g) The Commission may adopt rules to provide for the
disclosure of the identity of any individual or individuals in responsible
positions of control respecting operations of any licensee that is not an
individual. For the purposes of this section, individuals in responsible
positions of control are deemed to be individual licensees and subject to
suspension and revocation requirements in regard to any applications for
license they may make – either as individuals or as persons in responsible positions
of control in any corporation, partnership, or association. In the case of
individual licensees, the individual applying for a license or licensed under
this Article Article, Article 14B, or Article 25A of Chapter 113 of
the General Statutes to take resources under the jurisdiction of the Marine
Fisheries Commission must be the real party in interest.
(h) In determining whether a conviction is a second or subsequent offense under the provisions of this section, the Secretary may not consider convictions for:
(1) Offenses that occurred three years prior to the effective date of this Article; or
(2) Offenses that occurred more than three years prior to the time of the latest offense the conviction for which is in issue as a subsequent conviction."
SECTION 3. Section 2 of this act becomes effective October 1, 2012. The remainder of this act is effective when it becomes law.
