Current through Register 2024 Notice Reg. No. 38, September 20, 2024
The procedures described in this chapter shall be
applicable for the purposes of imposing civil penalties under Fish and Game
Code sections
500 and
2580-
2589
and regulations made pursuant thereto for violations described therein and for
the purposes of revoking or suspending licenses or permits under Fish and Game
Code section
8025,
unless specific procedures for suspension or revocation are provided for by the
Fish and Game Code or regulations made pursuant thereto.
(a) Burden of Proof.
The burden of proof shall be a preponderance of the
evidence.
(b) Complaint.
(1) The Director, after investigation of
facts and circumstances, may issue a complaint to any person on whom a civil
penalty may be imposed pursuant to Section 2582 or 2583 of the Code. The
complaint shall:
(A) allege the acts or
failure to act that constitute a basis for the civil penalty;
(B) state the amount of the proposed civil
penalty;
(C) be served by personal
service or certified mail upon the person whom a civil penalty may be imposed
at the last known address of the person;
(D) shall inform the person served that a
hearing will be conducted within 60 days after the date of service unless the
right to a hearing is waived.
(2) In the case of a license or permit
revocation or suspension, the Department shall issue a complaint that shall:
(A) state the name of the licensee or
permittee;
(B) inform the person
served that a hearing will be conducted within 60 days after the date of
service unless the right to a hearing is waived.
(C) be served by personal service or
certified mail upon the person identified in the complaint at the licensee's or
permittee's last known address.
(D)
state the facts which constitute a violation of the Fish and Game Code and/or
the regulations made pursuant thereto, including specific citations of the Code
and/or regulations alleged to have been violated. In the case of a revocation
or suspension in which the licensee or permittee has been convicted of a
violation of the Fish and Game Code or any regulations pertaining to the
activity licensed or permitted, the complaint shall state the date and fact of
conviction;
(3) The
complaint issued pursuant to (b)(1) and (b)(2) above may be accompanied by a
Notice of Hearing described in subsection (e) of this
section.
(c) Amended or
supplemental complaint before submission of case.
At any time before the matter is submitted for decision,
the Director may file or permit the filing of an amended or supplemental
complaint. All parties shall be notified in writing thereof. If the amended or
supplemental complaint presents new charges, the Department shall afford the
person served a reasonable opportunity to prepare his or her defense thereto,
but he or she shall not be entitled to file a further pleading unless the
qualified referee or the presiding officer of the hearing board in his or her
discretion so orders. Any new charges shall be deemed controverted, and any
objections to the amended or supplemental complaint may be made orally and
shall be noted in the record.
(d) Amendment of complaint after submission
of case.
The Director, qualified referee or presiding officer of the
hearing board may order amendment of the complaint after submission of the case
for decision. Each party shall be given notice of the intended amendment and
opportunity to show that he or she will be prejudiced thereby unless the case
is reopened to permit the introduction of additional evidence on his or her
behalf. If such prejudice is shown, the Director, qualified referee or
presiding officer shall reopen the case to permit the introduction of
additional evidence.
(e)
Notice of hearing.
(1) The Department shall
deliver or mail a notice of hearing to all parties at least 10 days prior to
the hearing.
(2) The notice to the
person served shall be substantially in the following form but may include
other information:
You are hereby notified that a hearing will be held before
a qualified referee or hearing board appointed by the Department of Fish &
Game at [here insert place of hearing] on the __________ day of __________ 19
__________, at the hour of __________, upon the charges made in the complaint
served upon you. You may be present at the hearing. You have the right to be
represented by an attorney at your own expense. You are entitled to represent
yourself without legal counsel. You may present any relevant evidence, and will
be given full opportunity to cross-examine all witnesses testifying against
you. You are entitled to the issuance of subpoenas to compel the attendance of
witnesses and the production of books, documents or other things by applying to
[here insert name and address of referee or presiding officer of the hearing
board].
The hearing will be conducted in the English language. If
you do not proficiently speak or understand the English language and would like
to request language assistance, you must notify the Department in a timely
manner. The referee or hearing board may order you to pay the costs of an
interpreter.
Any questions you may have regarding this hearing must be
addressed to the Department of Fish and Game, Legal Office at 1416 Ninth
Street, Sacramento, CA 95814, telephone no. (916) 327-4483.
(3) In the case a license or permit
revocation or suspension hearing, the person shall be advised that failure to
appear at the time and place of the hearing shall result in an automatic
suspension of the person's license or permit. In the case of the imposition of
a civil penalty, the person shall be advised that failure to appear at the time
and place of the hearing shall result in the automatic imposition of the civil
penalty identified in the in the complaint.
(f) Continuance of hearing.
(1) The qualified referee or presiding
officer of the hearing board may, on his or her own motion or upon request of
any party accompanied by a showing of good cause, continue the hearing to
another time not more than 60 days after the date scheduled for the initial
hearing. Application for a continuance must be made to the qualified referee or
the presiding officer not less than 20 calendar days prior to the scheduled
hearing.
(2) When a continuance is
ordered, the qualified referee or presiding officer shall give written notice
of the time and place of the continued hearing.
(g) Waiver of hearing.
A person upon whom a complaint has been served may waive a
right to a hearing. This waiver must be in writing signed by the person upon
whom the complaint was served or his or her duly appointed representative. If
the hearing is waived, the Department shall issue an order setting the penalty
in the amount proposed in the complaint or setting the revocation or
suspension. This order shall be final.
(h) Time and place of hearing.
The hearing shall be held at a location determined
appropriate by the Department in Sacramento, California, unless the Department
and the person served mutually agree to hold the hearing in one of the
following locations: San Diego, Los Angeles, Fresno, San Francisco, Eureka or
Redding.
(i) Discovery;
exclusive provisions.
The provisions of subsection (j) of this Section provide
the exclusive right to and method of discovery as to any proceeding governed by
this section.
(j) Request
for discovery; statements; writings.
After initiation of a proceeding, a party, upon written
request made to another party, prior to the hearing and within 30 days after
service by the Department of the initial pleading or within 15 days after such
service of an additional pleading, is entitled to (1) obtain the names and
addresses of witnesses to the extent known to the other party, including, but
not limited to, those intended to be called to testify at the hearing, and (2)
inspect and make a copy of any of the following in the possession or custody or
under the control of the other party:
(1) A statement pertaining to the subject
matter of the proceeding made by any party to another or person;
(2) Statement of witnesses then proposed to
be called by the party and of other persons having personal knowledge of the
acts, omissions or events which are the basis for the proceeding, not included
in subsection (j)(1) above;
(3) All
writings, including, but not limited to, reports of mental, physical and blood
examinations and things which the party then proposes to offer in
evidence;
(4) Any other writing or
thing which is relevant and which would be admissible in evidence;
(5) Investigative reports made by or on
behalf of the Department or other party pertaining to the subject matter of the
proceeding, to the extent that such reports (1) contain the names and addresses
of witnesses or of persons having personal knowledge of the acts, omissions or
events which are the basis for the proceeding, or (2) reflect matters perceived
by the investigator in the course of his or her investigation, or (3) contain
or include by attachment any statement or writing described in subsections
(j)(1) through (4), inclusive. or summary thereof.
For the purpose of this section, "statements" include
written statements by the person signed or otherwise authenticated by him or
her, stenographic, mechanical, electrical or other recordings, or transcripts
thereof, of oral statements by the person, and written reports or summaries of
such oral statements.
Nothing in this section shall authorize the inspection or
copying of any writing or thing which is privileged from disclosure by law or
otherwise made confidential, or is protected as the attorney's work
product.
(k)
Subpoenas, service; obligation of witness to attend; witness fees, mileage, per
diem.
(1) The qualified referee or presiding
officer of the hearing board may issue subpoenas and subpoenas duces tecum at
the request of any party for attendance or production of documents at the
hearing after making a showing of relevance and good cause. Subpoenas and
subpoenas duces tecum shall be issued in accordance with Sections
1985,
1985.1,
and
1985.2
of the Code of Civil Procedure.
(2)
The process issued pursuant to subsection (k)(1) of this section shall be
extended to all parts of the State and shall be served in accordance with
Sections
1987
and
1988
of the Code of Civil Procedure.
(3)
All witnesses appearing pursuant to subpoena, other than the parties or
officers or employees of the state or any political subdivision thereof, shall
receive fees, and all witnesses appearing pursuant to subpoena, except the
parties, shall receive mileage in the same amount and under the same
circumstances as prescribed by law for witnesses in civil actions in a superior
court. Witnesses appearing pursuant to subpoena, except the parties, who attend
hearings at points so far removed from their residences as to prohibit return
thereto from day to day shall be entitled in addition to fees and mileage to a
per diem compensation of three dollars ($3) for expenses of subsistence for
each day of actual attendance and for each day necessarily occupied in
traveling to and from the hearing. Fees, mileage, and expenses of subsistence
shall be paid by the party at whose request the witness is
subpoenaed.
(l) Contempt.
If any person in proceedings before the qualified referee
or the hearing board disobeys or resists any lawful order, refuses to respond
to a subpoena or a subpoena duces tecum, refuses to take the oath or
affirmation as a witness or thereafter refuses to be examined, or is guilty of
misconduct during a hearing or so near the place thereof as to obstruct the
proceedings, the qualified referee or presiding officer of the hearing board
shall certify the facts to the Superior Court in and for the County where the
proceedings are held for contempt proceedings pursuant to Government Code
Section 11525.
(m)
Depositions.
On verified petition of any party, the qualified referee or
the presiding officer of the hearing board may order that the testimony of any
material witness residing within or without the State be taken by deposition in
the manner prescribed by law for depositions in civil actions. The petition
shall set forth the nature of the pending proceeding; the name and address of
the witness whose testimony is desired; a showing of the materiality of his or
her testimony; a showing that the witness will be unable or cannot be compelled
to attend; and shall request an order requiring the witness to appear and
testify before an officer named in the petition for that purpose. Where the
witness resides outside the State and where the qualified or presiding officer
of the hearing board has ordered the taking of his or her testimony by
deposition, the deposition shall be taken according to the provisions of
California Code of Civil Procedure section
2026,
as amended.
(n) Prehearing
conference; subject matter; prehearing order.
(1) On motion of a party or by order of a
qualified referee or presiding officer of the hearing board. the qualified
referee or hearing board may conduct a prehearing conference. The qualified
referee or presiding officer of the hearing board shall set the time and place
for the prehearing conference, and the Department shall give written notice to
all parties.
(2) The rehearing
conference may deal with one or more of the following matters:
(A) Exploration of settlement
possibilities.
(B) Preparation of
stipulations.
(C) Clarification of
issues.
(D) Rulings on identity and
limitation of the number of witnesses.
(E) Objections to proffers of
evidence.
(F) Order of presentation
of evidence and cross-examination.
(G) Rulings regarding issuance of subpoenas
and protective orders.
(H)
Schedules for the submission of written briefs if necessary, and schedules for
the commencement and conduct of the hearing.
(I) Any other matters as shall promote the
orderly and prompt conduct of the hearing.
(3) The qualified referee or hearing board
shall issue a prehearing order incorporating the matters determined at the
prehearing conference. The qualified referee or hearing board may direct one or
more of the parties to prepare a prehearing order.
(o) Conduct of hearing; disqualification of
qualified referee or member of the hearing board; reporting.
(1) Every hearing in a contested case shall
be presided over by a qualified referee or hearing board that shall exercise
all powers relating to the conduct of the hearing.
(2) A qualified referee or hearing board
member shall voluntarily disqualify himself or herself and withdraw from any
case in which he or she cannot accord a fair and impartial hearing or
consideration. Any party may request the disqualification of any qualified
referee or hearing board member by filing an affidavit, prior to the taking of
evidence at a hearing, stating with particularity the grounds upon which it is
claimed that a fair and impartial hearing cannot be accorded. The issue shall
be determined by the qualified referee or hearing board.
(3) The proceedings at the hearing shall be
reported by an electronic tape recording system.
(p) Evidence; examination of witnesses;
interpreters.
(1) Oral evidence shall be taken
only on oath or affirmation.
(2)
Each party shall have these rights: to call and examine witnesses; to introduce
exhibits; to cross-examine opposing witnesses on any matter relevant to the
issues even though that matter was not covered in the direct examination; to
impeach any witness regardless of which party first called him or her to
testify; and to rebut the evidence against him or her. If the person upon whom
the complaint was served does not testify in his or her own behalf he or she
may be called and examined as if under cross-examination.
(3) The hearing need not be conducted
according to technical rules relating to evidence and witnesses, except as
hereinafter provided. Any relevant evidence shall be admitted if it is the sort
of evidence on which responsible persons are accustomed to rely upon in the
conduct of serious affairs, regardless of the existence of any common law or
statutory rule which might make improper the admission of the evidence over
objection in civil actions. Hearsay evidence may be used for the purpose of
supplementing or explaining other evidence but shall not be sufficient in
itself to support a finding unless it,would be admissible over objection in
civil actions. The rules of privilege shall be effective to the extent that
they are otherwise required by statute to be recognized at the hearing, and
irrelevant and unduly repetitious evidence shall be excluded.
(4) The hearing shall be conducted in the
English language, except that a party who does not proficiently speak or
understand the English language and who requests language assistance shall be
provided an interpreter approved by the qualified referee or the presiding
officer of the hearing board conducting the proceedings. The cost of providing
the interpreter shall be paid by the Department if the qualified referee or
presiding officer so directs, otherwise by the party for whom the interpreter
is provided. The qualified referee's or hearing board's decision to direct
payment shall be based upon an equitable consideration of all the circumstances
in each case, such as the ability of the party in need of the interpreter to
pay. Such an interpreter shall be selected from the list issued by the State
Personnel Board pursuant to Government Code section
11513.
(5) In the event that interpreters on the
approved list cannot be present at the hearing, or if there is no interpreter
on the approved list for a particular language, the qualified referee or
presiding officer shall have discretionary authority to provisionally qualify
and utilize other interpreters.
(6)
The Department shall advise each party of their right to an interpreter at the
same time that each party is advised of the hearing date. Each party in need of
an interpreter shall also be encouraged to give timely notice to the Department
conducting the hearing so that appropriate arrangements can be made.
(7) The rules of confidentiality of the
Department, if any, which may apply in an adjudicatory hearing, shall apply to
any interpreter in the hearing, whether or not these rules so state.
(8) The interpreter shall not have had any
involvement in the issues of the case prior to the hearing.
(q) Qualified referee or hearing board; ex
parte communication with party or interested person prohibited in absence of
notice and participation opportunity.
(1)
Except as required for the disposition of ex parte matters specifically
authorized by statute, a qualified referee or hearing board member may not
communicate, directly or indirectly, upon the merits of a contested matter
while the proceeding is pending, with any party, including employees of the
Department, with any person who has a direct or indirect interest in the
outcome of the proceeding, or with any person who presided at a previous stage
of the proceeding, without notice and opportunity for all parties to
participate in the communication.
(2) Unless required for the disposition of ex
parte matters specifically authorized by statute, no party to an adjudicative
proceeding, including employees of the Department, and no person who has a
direct or indirect interest in the outcome of the proceeding or who presided at
a previous stage of the proceeding, may communicate directly or indirectly,
upon the merits of a contested matter while the proceeding is pending, with any
person serving as a qualified referee or hearing board member, without notice
and opportunity for all parties to participate in the communication, unless
prior consent is obtained from all parties to the action.
(3) If, before serving as a qualified referee
or hearing board member, a person receives an ex parte communication of a type
that could not properly be received while serving, the person, promptly after
starting to serve, shall disclose the communication in the manner prescribed in
subsection (g)(4) of this section.
(4) A qualified referee or hearing board
member who receives an ex parte communication in violation of this section
shall place on the record of the pending matter all written communications
received, all written responses to the communications, and a memorandum stating
the substance of all oral communications received, all responses made, and the
identity of each person from whom the qualified referee or hearing board member
received an ex parte communication, and shall advise all parties that these
matters have been placed on the record. Any person desiring to rebut the ex
parte communication shall be allowed to do so, upon requesting the opportunity
for rebuttal within 10 days after notice of the communication.
(5) The receipt by a qualified referee or
hearing board member of an ex parte communication in violation of this section
may provide the basis for disqualification of that qualified referee or hearing
board member pursuant to this section. If the qualified referee or hearing
board member is disqualified, the portion of the record pertaining to the ex
parte communication may be sealed by protective order by the qualified referee
or hearing board member so disqualified.
(r) Affidavits.
(1) At any time 10 or more days prior to a
hearing or a continued hearing, any party may mail or deliver to the opposing
party a copy of any affidavit which he or she proposes to introduce in
evidence, together with a notice as provided in subsection (r)(2) of this
section. Unless the opposing party, within seven days after such mailing or
delivery, mails or delivers to the proponent a request to cross-examine an
affiant, his or her right to cross-examine such affiant is waived and the
affidavit, if introduced in evidence. shall be given the same effect as if the
affiant had testified orally. If an opportunity to cross-examine an affiant is
not afforded after request therefor is made as herein provided, the affidavit
may be introduced in evidence, but shall be given only the same effect as other
hearsay evidence.
(2) The notice
referred to in subsection (r)(1) of this section shall be substantially in the
following form:
The accompanying affidavit of (here insert name of affiant)
will be introduced as evidence at the hearing in (here insert title of
proceeding). (here insert name of affiant) will not be called to testify orally
and you will not be entitled to question him or her unless you notify (here
insert name of proponent or of his or her attorney) at (here insert address)
that you wish to cross-examine him or her. To be effective your request must be
mailed or delivered to (here insert name of proponent or his or her attorney)
on or before (here insert a date seven days after the date of mailing or
delivering the affidavit to the opposing party).
(s) Official notice.
In reaching a decision, official notice may be taken,
either before or after submission of the case for decision, of any generally
accepted technical or scientific matter within the Department's jurisdiction,
and of any fact which may be judicially noticed by the courts of this State.
Parties present at the hearing shall be informed of the matters to be noticed,
and those matters shall be noted in the record, referred to therein, or
appended thereto. Any such party shall be given a reasonable opportunity on
request to refute the officially noticed matters by evidence or by written or
oral presentation of authority, the manner of such refutation to be determined
by the qualified referee or hearing board.
(t) Decision consideration, preparation,
adoption.
(1) A qualified referee or hearing
board shall prepare, within 30 days after the conclusion of the hearing, a
proposed decision which recommends the penalty to be imposed or the revocation
or suspension of a license or permit. The proposed decision shall be submitted
to the Director and shall be served upon the person whom the complaint was
issued or his or her duly appointed representative.
(2) The Director may adopt, revise or reject
the proposed decision or may enter into a settlement agreement with the person
upon whom the complaint was served. If the Director revises, rejects or enters
into a settlement agreement, the Director shall seek the recommendation of the
qualified referee or the hearing board and shall enter into record of case the
reasons for that action including the qualified referee's or hearing board's
recommendations.
(3) Within thirty
days after receipt of the proposed decision, the Director shall issue an order.
If the order is issued against the person named in the complaint, the order
shall set forth the amount of civil penalty to be imposed or the revocation or
suspension of a license or permit. The order shall be served by personal
service or by certified mail to the person upon whom the complaint was served.
The order by the Director is final.
(u) Appeal.
Within 30 days after service of a copy of an order setting
the amount of a civil penalty or revoking or suspending a license or permit,
the person served may file with the Superior Court a petition for writ of
mandate for review of the order. The record of the proceedings shall be
prepared by the Department and delivered to the person upon whom the complaint
is received by the Department after payment of any and all fees for the
transcription of the record.
1. New
section filed 8-6-91; operative 9-5-91 (Register 92, No.
4).
Note: Authority cited: Section
2589,
Fish and Game Code. Reference: Section
2580-
2589,
Fish and Game Code.
