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May 21, 2012 
california political news & opinion
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california legislation > AB 2179
Page 1
Date of Hearing: May 16, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 2179 (Allen) – As Amended: April 26, 2012
Policy Committee:Water, Parks and
Wildlife Vote: 8-4
Urgency: No State Mandated Local Program:
No Reimbursable: No
SUMMARY
As proposed to be amended, this bill establishes administrative
civil authority for violations of the Fish and Game code.
Specifically, this bill:
1)Authorizes the Department of Fish and Game (DFG) to impose,
administratively, civil penalties for violations of the Fish
and Game Code and regulations adopted pursuant to it,
including:
a) Authority to impose administrative civil penalties up to
$20,000 for any violation.
b) Authority to impose administrative civil penalties
against a person who commits a violation for profit or gain
not to exceed $10,000 for each animal harmed, possessed,
transported, imported, received, purchased, acquired or
sold.
2)Requires DFG to consider the following when setting civil
penalty amounts.
a) The amount considered adequate to deter repeated offense
of the illegal activity.
b) 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
have little significant effect upon the resources and
greater penalties for acts which may cause serious injury
to the resources.
3)Limits the amount of a civil penalty DFG can set for an
AB 2179
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infraction to an amount not to exceed the criminal penalty
authorized in statute for the infraction.
4)Specifies notification, timing and appeal requirements DFG
must follow in imposing administrative civil penalties.
5)Directs administrative penalties to the Fish and Game
Preservation Fund.
6)Deletes existing provisions of law currently governing DFG’s
civil liability program
FISCAL EFFECT
The authority granted to DFG by this bill will likely lead to
workload increases for the department to administer hearings
within prescribed timelines, provide notices, and hear appeals.
However, because the authority provided is discretionary. DFG
indicates, reasonably, that it will only exercise the authority
to impose administrative civil penalties when staff has reason
to believe doing so will be cost effective. Therefore, net cost
to DFG to exercise its new authority should be minor and
absorbable.
COMMENTS
1)Rationale . The author describes DFG’s existing authority to
impose administrative civil penalties as unclear and
ineffective and, for those reasons, rarely exercised by DFG.
The author notes that most Fish and Game Code violations are
punishable as misdemeanors, but that criminal courts lack the
resources to quickly hear cases. As a result, the author
continues, the rate of prosecution of Fish and Game Code
violations continues to drop, diminishing the law’s deterrent
effect. The author intends this bill to provide DFG with a
more efficient and effective hearing process, with due process
protection, that allows relatively speedy resolution of
alleged violations of the Fish and Game Code.
The author has agreed to amendments that require, rather than
allow, DFG to adopt regulations that include a fee schedule to
provide guidance in assessing a civil penalty.
2)Background. Existing law authorizes DFG to impose civil
liability upon any person who violates the Fish and Game Code.
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To do so, DFG must appoint a qualified referee or hearing
board, as specified, to conduct the hearing according to the
Administrative Procedures Act. The hearing officer is the
sole trier of fact and submits a proposed decision to the DFG
director for review. The director sets penalties or enters a
settlement agreement, and the director’s decision is final.
According to DFG, is existing civil liability authority is
cumbersome and of questionable legality, given court decisions
that have occurred since passage of statute establishing DFG’s
authority. For these reasons, DFG reports, it very rarely
exercises its civil liability authority.
3)Support . This bill is supported by wildlife and animal
advocacy groups, who contend DFG needs effective
administrative civil penalty authority to quickly resolve
alleged violations of the Fish and Game Code.
4)Opposition . This bill is opposed by the California Farm
Bureau and groups whose members are regularly subject to DFG
regulation who contend the bill gives fine authority to
unelected bureaucrats who have an interest in receiving
penalty revenue and leaves it to DFG to judge the validity of
its own accusations.
Analysis Prepared by : Jay Dickenson / APPR. / (916) 319-2081
From Around the Capitol
AB 2179
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, 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 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 or regulations adopted pursuant to the code. This bill would authorize 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.
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