Current through Register 2024 Notice Reg. No. 38, September 20, 2024
Except where revocation, suspension, transfer,
reinstatement or waiver of renewal requirement procedures are specifically
provided for by the Fish and Game Code or regulations made pursuant thereto,
the commission, pursuant to the provisions of Section
309 of
the Fish and Game Code, shall comply with the following minimum safeguards to
afford each applicant, licensee or permittee procedural and substantive due
process when the commission considers revocation, suspension, transfer,
reinstatement or waiver of renewal requirements for a license or permit
including hunting and sport fishing license or permit privileges.
(a) In the case where the applicant, licensee
or permittee has already been convicted of a violation of the Fish and Game
Code or any regulation pertaining to the activity licensed or permitted by said
code, the commission shall comply with the following:
(1) The commission's president may appoint a
commissioner, the commission's legal counsel, a former Executive Director of
the commission, or a member of the State Bar of California with at least ten
years' experience in the active practice of law and determined qualified by the
president, to serve as a hearing officer.
(2) The hearing shall be held at such time
and location determined by the hearing officer with due consideration for the
convenience of the parties and the ends of justice. The hearing officer may
engage in exparte communications with the parties for the purpose of setting a
time and place of hearing.
(3) The
commission shall notify the applicant, licensee or permittee, by certified
letter, of the commission's intent to consider the revocation or suspension of
his or her license or permit privileges. The certified letter shall include the
following information:
(A) Name of applicant,
licensee or permittee and last known address the Department of Fish and Game
has on file.
(B) Date, time and
place of scheduled hearing.
(C)
Reason for potential commission action, including a statement as to the date
and fact of conviction.
(D) A copy
of Section
746, Title 14, California Code of
Regulations.
(E) A statement that
the applicant, licensee or permittee has the right to appear and to be
represented by counsel.
(F) A
statement that any continuance of the scheduled hearing date may be obtained
only through compliance with subsection (d) of Section
746, Title 14, California Code of
Regulations.
(4) The
proceedings of the hearing shall be recorded by a court reporter or an
electronic tape recording system.
(5) The hearing shall be conducted by the
hearing officer who shall control the nature and order of the
proceedings.
(6) At the hearing,
the hearing officer shall read the conviction documents. The department shall
provide the hearing officer with the background information regarding the
violation and conviction and shall submit into the record a copy of a document
which includes the facts of the conviction of a violation of regulation or
statute.
(7) The applicant,
licensee or permittee shall make his or her statement regarding the violation
and conviction, and may argue that extenuating circumstances were such as to
not warrant the loss of his or her license or permit privileges.
(8) The hearing officer may examine any party
or witness.
(9) Within 30 days of
the conclusion of the hearing, the hearing officer shall prepare and submit to
the executive director a proposed decision which shall include proposed
findings or reasons for the commission's action.
(10) Upon receipt of the proposed decision,
the commission shall provide counsel or, if appearing pro se, the applicant,
licensee or permittee, by certified mail, a copy of the hearing officer's
proposed decision.
(11) At a
meeting of the commission, no later than 60 days following receipt of the
hearing officer's proposed decision, the commission shall consider adoption of
the proposed decision. The commission may by order adopt, revise or reject the
proposed decision. The commission shall serve counsel or, if appearing pro se,
the applicant, licensee or permittee, by certified mail, a copy of the
commission's order and decision. The order is final.
(12) The applicant, licensee or permittee may
request judicial review by filing a petition for writ of mandate in accordance
with provisions of the Code of Civil Procedure within 30 days from the date of
service (postmark) of the order. The record of the proceedings as designated by
the petitioner shall be prepared by the commission and delivered to
petitioner's counsel or, if appearing pro se, the petitioner within 30 days
after petitioner's request and upon payment of the fee specified in Section
69950 of
the Government Code.
(b)
In the case where the applicant, licensee or permittee has not been convicted
of a violation of the Fish and Game Code or any regulation pertaining to the
activity licensed or permitted by said code, but has been cited by the
department, the commission shall comply with the following:
(1) The commission's president may appoint a
commissioner, the commission's legal counsel, a former Executive Director of
the commission, or a member of the State Bar of California with at least ten
years experience in the active practice of law and determined qualified by the
president, to serve as a hearing officer.
(2) The hearing shall be held at such time
and location determined by the hearing officer with due consideration for the
convenience of the parties and the ends of justice except that any hearing
requested by the holder of a commercial lobster permit, pursuant to Section
8254.7
of the Fish and Game Code, shall be held within the time specified therein. The
hearing officer may engage in exparte communications with the parties for the
purpose of setting a time and place of hearing.
(3) The commission shall notify the
applicant, licensee or permittee, by certified letter, of the commission's
intent to consider the revocation or suspension of his or her license or permit
privileges. The certified letter shall include the following information:
(A) Name of applicant, licensee or permittee
and last known address the Department of Fish and Game has on file.
(B) Date, time and place of scheduled
hearing.
(C) Reason for potential
commission action, including a concise statement of the alleged acts or
omissions of the applicant, licensee or permittee which constitute a violation
of the Fish and Game Code and regulations made pursuant thereto with specific
citations of the code sections alleged to have been violated.
(D) A copy of Section
746, Title 14, California Code of
Regulations.
(E) A statement that
the applicant, licensee or permittee has the right to appear and to be
represented by legal counsel.
(F) A
statement that any continuance of the scheduled hearing date may be obtained
only through compliance with subsection (d) of Section
746, Title 14, California Code of
Regulations.
(4) The
proceedings of the hearing shall be recorded by a court reporter or an
electronic tape recording system.
(5) The hearing shall be conducted by the
hearing officer who shall control the nature and order of the
proceedings.
(6) The applicant,
licensee, permittee and the department have the right to present evidence at
the scheduled hearing as follows:
(A) Oral
evidence shall be taken on oath or affirmation.
(B) The parties may submit affidavits by
adhering to the procedure set out for the submission of affidavits in lieu of
testimony in judicial arbitration proceedings, California Rules of Court, Rule
1613, subdivision (b)(2), and may submit transcripts of depositions by adhering
to the procedure set out for the submission of depositions in judicial
arbitration proceedings, California Rules of Court, Rule 1613, subdivision
(b)(3).
(C) Each party may call and
examine witnesses, cross-examine opposing witnesses on any relevant matter, may
rebut evidence against him or her, and may orally argue the matter.
(D) The hearing need not be conducted
according to the technical rules relating to evidence and witnesses. Any
relevant evidence shall be admitted if it is the sort of evidence on which
responsible persons would rely in the conduct of serious
affairs.
(7) The hearing
officer may examine any party or witness.
(8) Within 30 days of the conclusion of the
hearing, the hearing officer shall prepare and submit to the executive director
a proposed decision based on the evidence presented at the hearing. The
decision shall contain proposed findings and reasons for the commission's
action.
(9) Upon receipt of the
proposed decision, the commission shall provide counsel or, if appearing pro
se, the applicant, licensee or permittee, by certified mail, a copy of the
hearing officer's proposed decision.
(10) At a meeting of the commission, no later
than 60 days following the receipt of the hearing officer's proposed decision,
the commission shall consider adoption of the proposed decision. The commission
may by order adopt, revise or reject the proposed decision. The commission
shall serve counsel or, if appearing pro se, the applicant, licensee or
permittee, by certified mail, a copy of the commission's order and decision.
The order is final.
(11) The
applicant, licensee or permittee may request judicial review by filing a
petition for writ of mandate in accordance with provisions of the Code of Civil
Procedure within 30 days from the date of service (postmark) of the order. The
record of the proceedings as designated by the petitioner shall be prepared by
the commission and delivered to petitioner's counsel or, if appearing pro se,
the petitioner within 30 days after petitioner's request and upon payment of
the fee specified in Section
69950 of
the Government Code.
(c)
In the case where the applicant, licensee or permittee has neither been
convicted nor cited by the department for a violation of the Fish and Game
Code, but is appealing department denial of issuance, transfer, reinstatement
or requesting waiver of renewal requirements for any permit or license,
including a hunting or sport fishing license or permit, the commission shall
comply with the following:
(1) The
commission's president may appoint a commissioner, the commission's legal
counsel, a former Executive Director of the commission, or a member of the
State Bar of California with at least ten years experience in the active
practice of law and determined qualified by the president, to serve as a
hearing officer.
(2) The hearing
shall be held at such time and location determined by the hearing officer with
due consideration for the convenience of the parties and the ends of justice.
The hearing officer may engage in exparte communications with the parties for
the purpose of setting a time and place of hearing.
(3) The commission shall notify the
applicant, licensee or permittee, by certified letter, of the commission's
intent to consider the request for issuance, reinstatement or waiver of renewal
requirements for the license or permit. The certified letter shall include the
following information:
(A) Name of applicant,
licensee or permittee and last known address the Department of Fish and Game
has on file.
(B) Date, time and
place of scheduled hearing.
(C) A
copy of Section
746, Title 14, California Code of
Regulations.
(D) A statement that
the applicant, licensee or permittee has the right to appear and to be
represented by legal counsel.
(E) A
statement that any continuance of the scheduled hearing date may be obtained
only through compliance with subsection (d) of Section
746, Title 14, California Code of
Regulations.
(4) The
proceedings of the hearing shall be recorded by a court reporter or an
electronic tape recording system.
(5) The hearing shall be conducted by the
hearing officer who shall control the nature and order of the
proceedings.
(6) The applicant,
licensee or permittee and the department have the right to present evidence at
the hearing as follows:
(A) Oral evidence
shall be taken on oath or affirmation.
(B) The parties may submit affidavits by
adhering to the procedure set out for the submission of affidavits in lieu of
testimony in judicial arbitration proceedings, California Rules of Court, Rule
1613, subdivision (b)(2), and may submit transcripts of depositions by adhering
to the procedure set out for the submission of depositions in judicial
arbitration proceedings, California Rules of Court, Rule 1613, subdivision
(b)(3).
(C) Each party may call and
examine witnesses, cross-examine opposing witnesses on any relevant matter, may
rebut evidence against him or her, and may orally argue the matter.
(D) The hearing need not be conducted
according to the technical rules relating to evidence and witnesses. Any
relevant evidence shall be admitted if it is the sort of evidence on which
responsible persons would rely in the conduct of serious
affairs.
(7) The hearing
officer may examine any party or witness.
(8) Within 30 days of the conclusion of the
hearing, the hearing officer shall prepare and submit to the executive director
a proposed decision based on the evidence presented at the hearing. The
decision shall contain proposed findings and reasons for the commission's
action.
(9) Upon receipt of the
proposed decision, the commission shall provide counsel or, if appearing pro
se, the applicant, licensee or permittee, by certified mail, a copy of the
hearing officer's proposed decision.
(10) At a meeting of the commission, no later
than 60 days following the receipt of the hearing officer's proposed decision,
the commission shall consider adoption of the proposed decision. The commission
may by order adopt, revise or reject the proposed decision. The commission
shall serve counsel or, if appearing pro se, the applicant, licensee or
permittee, by certified mail, a copy of the commission's order and decision.
The order is final.
(11) The
applicant, licensee or permittee may request judicial review by filing a
petition for writ of mandate in accordance with provisions of the Code of Civil
Procedure within 30 days from the date of service (postmark) of the order. The
record of the proceedings as designated by the petitioner shall be prepared by
the commission and delivered to petitioner's counsel or, if appearing pro se,
the petitioner within 30 days after petitioner's request and upon payment of
the fee specified in Section
69950 of
the Government Code.
(d)
Requests or applications to continue a hearing shall be made in writing to the
hearing officer or the Executive Director of the commission. The hearing
officer or the Executive Director must receive the request no less than two
business days prior to the scheduled date of the hearing. A copy of the request
shall also be sent to the department. The application shall include the case
name and the date, time, and place of the scheduled hearing. The application
shall identify any previous requests to continue the matter. The application
shall also contain a statement of all facts the applicant contends constitute
good cause to continue the matter. The hearing officer or the Executive
Director has the discretion to waive the requirement for written application
upon a showing of additional good cause. In cases where the licensee or
permittee is appealing department denial of issuance, transfer, reinstatement
or requesting waiver of renewal requirements for any permit or license pursuant
to subsection (c), above, failure to appear as scheduled or to comply with this
provision shall be deemed a withdrawal of the appeal.
1. New
section filed 1-26-87; effective upon filing pursuant to Fish and Game Code
Section
215
(Register 87, No. 5).
2. Amendment of section heading, section and
NOTE filed 1-6-2000; operative 1-6-2000 pursuant to Fish and Game Code sections
202 and
215
(Register 2000, No. 1).
3. Amendment of section heading, section and
NOTE filed 3-25-2005; operative 4-24-2005 (Register 2005, No.
12).
4. Amendment of subsections (a)(1), (b)(1) and (c)(1) and new
subsections (a)(3)(F), (b)(3)(F), (c)(3)(E) and (d) filed 6-8-2006; operative
7-8-2006 (Register 2006, No. 23).
Note: Authority cited: Sections
309 and
12155.5,
Fish and Game Code. Reference: Sections
309,
7852.2,
8254.7,
8280.4,
8422,
8423.5,
8562,
8569,
12154,
12155,
12155.5
and
12156,
Fish and Game Code.
