Current through Register 2024 Notice Reg. No. 38, September 20, 2024
This section implements the department's authority to
administratively impose civil penalties pursuant to sections
12025(e)
and
12025.1(d)
of the Fish and Game Code.
(a)
Definitions.
(1) "Party" includes any person
or entity named in a complaint or the department official who issued the
complaint (collectively, "Parties"), but does not include the presiding
officer.
(2) "Presiding officer"
means a person designated by the director to conduct the hearings under this
section, including an administrative law judge assigned by the Office of
Administrative Hearings.
(3)
"Respondent" means any person or entity named in a complaint that is subject to
a civil penalty imposed pursuant Section
12025
or
12025.1
of the Fish and Game Code.
(b) Burden of Proof.
The burden of proof to prove a violation for which a civil
penalty may be imposed pursuant to Section
12025
or
12025.1
of the Fish and Game Code shall be a preponderance of the
evidence.
(c) Complaint.
(1) The department may issue a complaint to
any person or entity on which a civil penalty may be imposed pursuant to
Section
12025(e)
or
12025.1(d)
of the Fish and Game Code.
(2) The
complaint shall:
(A) allege the act or
failure to act that constitutes a violation;
(B) include any facts related to natural
resources impacts;
(C) provide the
provision of law authorizing the civil penalty to be imposed;
(D) state the amount of the proposed civil
penalty; and
(E) inform each
respondent that the failure to request a hearing within 20 days after the date
of service of the complaint constitutes a waiver of the right to a
hearing.
(3) The
complaint and an order setting the amount of the civil penalty to be imposed
shall be served by personal service or certified mail on each respondent named
in the complaint.
(4) At any time
before the matter is submitted for decision in a hearing, an amended complaint
or order may be issued to a respondent. All parties shall be served with the
amended complaint or order. If the amended complaint or order alleges a new
violation or presents additional penalties, the presiding officer shall afford
the affected respondent a reasonable opportunity to prepare his or her
defense.
(d) Assessment
of Civil Penalty.
In determining the amount of the proposed civil penalty,
the department shall take into consideration all relevant circumstances to the
extent they are known to the department, including the extent of harm caused by
the violation, the nature and persistence of the violation, the length of time
over which the violation occurs, any prior history of violation, any corrective
action taken by the respondent, and the respondent's assets and other financial
resources.
(e) Request for
Hearing.
(1) A respondent may request a
hearing no later than 20 days after the date of receipt of the department's
complaint.
(2) The request for
hearing shall be in writing signed by or on behalf of the respondent and shall
state the respondent's or his or her legal counsel's mailing address, telephone
number, and email address.
(3) The
request for hearing shall contain a brief statement of the material facts the
respondent claims support his or her contention that no civil penalty should be
imposed or that a civil penalty of a lesser amount is
warranted.
(f) Presiding
Officer.
(1) In the case where a respondent
requests a hearing, the department shall schedule the hearing before a
presiding officer who shall exercise all powers relating to the conduct of the
hearing and shall issue the final decision and order for the department. The
director may designate administrative law judges who work for the Office of
Administrative Hearings to serve as presiding officers under this
section.
(2) The director may
designate other persons to serve as presiding officers under this section, but
the presiding officer shall not be the same department official who issued the
complaint and shall not have served as an investigator, prosecutor, or advocate
in any stage of the hearing or its prehearing stage.
(3) The designation of the presiding officer
shall be made in full consideration of the requirements of due process and
fundamental fairness to the parties. Any party may challenge the designation of
the presiding officer pursuant to subsections (i)(2) and
(i)(3).
(g) Waiver of
Hearing.
(1) A respondent waives the right to
a hearing if the respondent does not request a hearing within 20 days of
receipt of the complaint. If a respondent waives the right to a hearing, the
order served with the complaint shall become final.
(2) In the case where a respondent requests a
hearing, a respondent's failure to appear at the time and place of the hearing
constitutes a waiver of the request for hearing, in which case the order served
with the complaint shall become final.
(h) Settlement.
(1) The parties may reach a settlement at any
time before the order served with the complaint becomes final.
(2) Upon submission of a signed settlement
agreement, the department or the presiding officer, if a hearing is requested,
shall issue an order including the terms of the settlement, without conducting
a hearing. Notwithstanding any other provision of law, no evidence of an offer
of compromise or settlement made in settlement negotiations is admissible in a
hearing, whether as affirmative evidence, by way of impeachment, or for any
other purpose, and no evidence of conduct or statements made in settlement
negotiations is admissible to prove liability or lack thereof.
(3) A settlement may include any terms
voluntarily agreed to by the parties. A settlement order is fully enforceable
by the parties.
(i)
Hearing Procedures.
In the case where the proposed penalty set forth in the
complaint is less than $25,000, the hearing procedures shall be consistent with
the requirements described in Sections
11425.10
to
11475.70
of the Government Code. For cases in which the proposed penalty set forth in
the complaint is $25,000 or greater, the requirements in subsections (i)(1) to
(i)(12) apply to the procedures by which the department conducts a hearing.
Parties may waive or modify any provision of subsection (i) upon agreement of
all parties to the waiver or modification and approval of the presiding
officer.
(1) Notice of Hearing.
(A) In the case where a respondent requests a
hearing, the department shall determine the time and location of the hearing
with due consideration for the convenience of the parties and the ends of
justice.
(B) The department shall
serve a notice of hearing to all parties at least 10 days prior to the hearing.
The notice of hearing may be served by personal notice, certified mail, or by
email if the respondent agrees to service of the notice by email.
(C) The notice of hearing shall include a
copy of the complaint and proposed order or amended complaint and proposed
order.
(D) The notice shall be
substantially in the following form but may include other information:
You are hereby notified that a hearing will be held before
a presiding officer at [here insert place of hearing] on the __________ day
__________ 20 __________, at the hour of __________, upon the charges made in
the complaint served upon you. If you object to the place of hearing, you must
notify the presiding officer within 10 days after this notice is served on you.
Failure to notify the presiding officer within 10 days will deprive you of a
change in the place of 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 [insert the
name and address of the presiding officer].
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 no later than 10
days after the notice of hearing is served on you. The presiding officer may
order you to pay the costs of an interpreter.
Any questions you may have regarding this hearing should be
addressed to the department of Fish and Wildlife, Office of General Counsel, at
1416 Ninth Street, Sacramento, CA 95814. You may also contact [insert name],
[insert title] at [insert telephone] or [insert email
address].
(E) The notice
shall advise each respondent that failure to appear at the time and place of
the hearing shall result in the order becoming final.
(F) The notice shall include a copy of this
section.
(G) The notice shall
contain a statement that any continuance of the scheduled hearing date may be
obtained only through compliance with subsection (i)(4).
(2) Peremptory Challenge.
(A) Each party is entitled to one peremptory
challenge of a presiding officer.
(B) The peremptory challenge may be in
writing or on the record and should be made in substantially the following
form:
I am party to [insert name of case] and I am exercising my
right to a peremptory challenge regarding presiding officer [insert name],
pursuant to Section
748.5(i)(2),
Title 14, California Code of Regulations and Section
11425.40(d)
of the Government Code.
(C)
The peremptory challenge of the presiding officer shall be served on all
parties if made in writing and shall be made no later than two (2) business
days before the hearing. In no event will a peremptory challenge be allowed
after the hearing has begun.
(3) Disqualification.
Any party may request the disqualification of a presiding
officer by filing an affidavit prior to the taking of evidence at a hearing on
the grounds that a fair and impartial hearing cannot be accorded. The affidavit
shall state with particularity the facts that support the party's request. The
issue shall be determined by the presiding officer who shall either grant or
deny the request.
(4)
Continuance of Hearing.
(A) The presiding
officer may, for good cause on his or her own motion or upon the request of any
party, continue the hearing to another time.
(B) The request for a continuance shall be
made in writing and shall include the case name and the date, time, and place
of the scheduled hearing.
(C) The
presiding officer must receive the request no less than (2) two business days
prior to the scheduled date of the hearing. The requesting party shall also
send the request to the other parties. The other parties may each provide a
response to the request within a time limit set by the presiding
officer.
(D) The request shall
identify any previous requests to continue the matter and shall contain a
statement of all facts the party contends constitute good cause to continue the
matter. The presiding officer has the discretion to waive the requirement for a
written request upon a showing of additional good cause.
(E) When a continuance is ordered, the
presiding officer shall give written notice of the time and place of the
continued hearing.
(F) Failure to
appear as scheduled or to comply with the provisions of subsection (i)(4) shall
be deemed a withdrawal of the request for a hearing, in which case the order
served with the complaint shall become final.
(5) Discovery.
(A) The provisions in this subsection (i)(5)
provide the exclusive right to and method of discovery as to any proceeding
governed by this section.
(B) A
party, upon written request made to another party, prior to the hearing and
within 30 days after service of the department's complaint or within 15 days
after the service of an amended complaint or order, 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 of a person, other than the
party named in the complaint or in any additional pleading, when it is claimed
that the act or omission of the party as to this person is the basis for the
administrative proceeding;
2. A
statement pertaining to the subject matter of the proceeding made by any party
to another party or person;
3.
Statements 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 1 or 2 above;
4. Any writing or thing which is relevant and
which would be admissible in evidence;
5. Reports made by or on behalf of the
department or other party pertaining to the subject matter of the proceeding,
to the extent that these 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 1 to 5,
inclusive, or summary thereof.
For the purpose of this subsection, "statements" include
written statements by the person signed or otherwise authenticated by him or
her, stenographic, mechanical, electrical or other recordings, or transcripts
thereof, or oral statements by the person, and written reports or summaries of
these oral statements.
Nothing in this section shall authorize the inspection or
copying of any writing or thing which is privileged from disclosure or
otherwise made confidential or protected by
law.
(6)
Subpoenas.
(A) The presiding officer may
issue subpoenas and subpoenas duces tecum at the request of any party for
attendance at the hearing and for production of documents, in accordance with
Sections 1985 to 1985.4, inclusive, of the Code of Civil Procedure.
(B) The process followed pursuant to
subsection (6)(A) extends to all parts of the state and shall be served in
accordance with Sections
1987
and
1988
of the Code of Civil Procedure.
(C)
The custodian of documents that are the subject of a subpoena duces tecum may
satisfy the subpoena by delivery of the documents or a copy of the documents,
or by making the documents available for inspection or copying, together with
an affidavit in compliance with Section
1561 of the
Evidence Code.
(D) Failure to
comply with a subpoena issued and acknowledged pursuant to this subsection may
be punished as contempt and the subpoena may so state.
(E) A person served with a subpoena or a
subpoena duces tecum may object to its terms by a motion for a protective
order, including a motion to quash. The presiding officer shall resolve the
objection and may issue an order that is appropriate to protect the parties or
the witness from unreasonable or oppressive demands, including violations of
the right to privacy.
(F) A witness
appearing pursuant to a subpoena or a subpoena duces tecum, other than a party,
shall receive for the appearance the same mileage and fees allowed by law to a
witness in a civil case, to be paid by the party at whose request the witness
is subpoenaed. This subsection does not apply to an officer or employee of the
state or a political subdivision of the state.
(7) Affidavits.
(A) 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 the party proposes to introduce in
evidence, together with a notice as provided in subsection (7)(B). 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, the party's
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.
(B) The notice referred
to in subsection (7)(A) shall be substantially in the following form:
The accompanying affidavit of [insert name of affiant] will
be introduced as evidence at the hearing in [insert title of proceeding].
[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 [insert name of proponent
or his attorney] at [insert address] that you wish to cross-examine him or her.
To be effective your request must be mailed or delivered to [insert name of
proponent or his attorney] on or before [insert a date seven days after the
date of mailing or delivering the affidavit to the opposing
party].
(8)
Depositions.
(A) On verified petition of any
party, the presiding officer, or if a presiding officer has not been
designated, the department may order that the testimony of any material witness
residing within or outside the state be taken by deposition in the manner
prescribed by law for depositions in civil actions under Title 4 (commencing
with section 2016.010) of Part 4 of the Code of Civil Procedure.
(B) The petition shall set forth the name of
the pending proceeding; the name and address of the witness whose testimony is
desired; a showing of the materiality of the 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.
(C)
The petitioner shall serve a copy of the petition on the other parties at least
10 days before the hearing. Transcript of the deposition may be introduced in
evidence.
(D) Where the witness
resides outside the state and where the presiding officer or the department has
ordered the taking of the testimony by deposition, the department shall obtain
an order of court to that effect by filing a petition therefor in the superior
court in Sacramento County. The proceedings thereon shall be in accordance with
the provisions of Section
11189 of
the Government Code.
(9)
Conduct of Hearing.
(A) The proceedings at
the hearing shall be recorded electronically unless otherwise agreed by the
parties.
(B) The presiding officer
may conduct all or part of a hearing by telephone, television, or other
electronic means if each participant in the hearing has an opportunity to
participate in and to hear the entire proceeding while it is taking place and
to observe exhibits. The presiding officer may not conduct all or part of a
hearing by telephone, television, or other electronic means if a party
objects.
(10) Evidence.
(A) Oral evidence shall be taken only on oath
or affirmation.
(B) Each party may
call and examine witnesses, introduce exhibits, cross-examine opposing
witnesses on any relevant matter, impeach any witness regardless of which party
first called him or her to testify, and rebut 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.
(C) The
presiding officer may examine any party or witness.
(D) 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. However, the presiding officer has discretion to
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will cause undue consumption of time. 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.
(11)
Language Assistance.
(A) The hearing shall be
conducted in the English language, except that a respondent who does not
proficiently speak or understand the English language and who requests language
assistance shall be provided an interpreter approved by the presiding officer
conducting the proceedings. The request for an interpreter must be made no
later than 10 days after the notice of hearing is served. The cost of providing
the interpreter shall be paid by the respondent or shall be paid by the
department if the presiding officer so directs. The presiding officer'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 Section
11435.30
of the Government Code.
(B) 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 presiding officer shall have discretionary authority to provisionally
qualify and utilize other interpreters.
(C) 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.
(D) Interpreters
shall be subject to the same requirements of confidentiality as
parties.
(E) The interpreter shall
not have had any involvement in the issues of the case prior to the
hearing.
(12) Contempt.
(A) Any person in a hearing before the
presiding officer is subject to the contempt sanction for any of the following:
1. Disobedience of or resistance to a lawful
order.
2. Refusal to take the oath
or affirmation as a witness or thereafter refusal to be examined.
3. Obstruction or interruption of the due
course of the proceeding during a hearing or near the place of the hearing by
disorderly, contemptuous, or insolent behavior toward the presiding officer
while conducting the hearing or by breaching of the peace, boisterous conduct,
or violent disturbance.
4.
Violation of the prohibition of ex parte communications under subsection (j) of
this section.
5. Failure or
refusal, without substantial justification, to comply with a deposition order,
discovery request, subpoena, or other order of the presiding officer, or
moving, without substantial justification, to compel
discovery.
(B) The
presiding officer may certify the facts that justify the contempt sanction
against a person to the Superior Court in and for the county where the
proceeding is conducted for contempt proceedings pursuant Section
11455.20
of the Government Code.
(j) Ex Parte Communications.
(1) While the proceeding is pending there
shall be no communication, direct or indirect, regarding any issue in the
proceeding, to the presiding officer from an employee or representative of the
department or from any interested person outside the department, without notice
and opportunity for all parties to participate in the communication. Nothing in
this section precludes a communication, including a communication from an
employee or representative of the department, made on the record at the
hearing. For the purpose of this section, a proceeding is pending from the
issuance of the department's notice of hearing.
(2) A communication otherwise prohibited by
subsection (j) is permissible when the communication is required for
disposition of an ex parte matter specifically authorized by statute or
concerns a matter of procedure or practice, including a request for a
continuance that is not in controversy.
(3) A communication otherwise prohibited by
subsection (j) from an employee or representative of the department to the
presiding officer is permissible in any of the following circumstances:
(A) The communication is for the purpose of
assistance and advice to the presiding officer from a person who has not served
as investigator, prosecutor, or advocate in the hearing or its prehearing
stage. An assistant or advisor may evaluate the evidence in the record but
shall not furnish, augment, diminish, or modify the evidence in the
record.
(B) The communication is
for the purpose of advising the presiding officer concerning a technical issue
in the proceeding and the advice is necessary for, and is not otherwise
reasonably available to, the presiding officer, provided the content of the
advice is disclosed on the record and all parties are given an opportunity to
address it in the manner provided in subsection (j)(5).
(4) If, while the proceeding is pending but
before serving as a presiding officer, a person receives a communication of a
type that would be in violation of this section if received while serving as
presiding officer, the person, promptly after starting to serve, shall disclose
the content of the communication on the record and give all parties an
opportunity to address it in the manner provided in subsection
(j)(5).
(5) If the presiding
officer receives a communication in violation of this section, the presiding
officer shall make all of the following a part of the record in the proceeding:
(A) If the communication is written, the
writing and any written response of the presiding officer to the
communication.
(B) If the
communication is oral, a memorandum stating the substance of the communication,
any response made by the presiding officer, and the identity of each person
from whom the presiding officer received the communication. The presiding
officer shall notify all parties that a communication described in this
subsection has been made a part of the record. Within 10 days after receipt of
notice of the communication, a party may comment on the
communication.
(6) The
receipt by the presiding officer of a communication in violation of this
section may be grounds for disqualification of the presiding officer pursuant
to this section. If the presiding officer is disqualified, the portion of the
record pertaining to the ex parte communication may be sealed by protective
order of the disqualified presiding officer.
(k) Decision.
(1) Within 45 days after the conclusion of
the hearing, the presiding officer shall issue a written decision based on the
evidence presented at the hearing. The decision shall include the presiding
officer's findings of fact and conclusions. The presiding officer may concur
with the civil penalty imposed by the department, or may reduce the amount of
the civil penalty, or may not impose the civil penalty based upon the factors
listed in subsection (d).
(2) The
presiding officer shall issue the final decision of the department. The
decision shall contain the final order setting the amount of the civil penalty
to be imposed on the respondent.
(3) Within 45 days after the conclusion of
the hearing, the presiding officer shall serve the final decision and order by
certified mail to all parties.
(l) Appeal of Order.
(1) Within 30 days of the date of service of
the final order, any party may file with the Superior Court a petition for a
writ of mandate for review of the final order.
(2) A record of the proceedings shall be
prepared by the department and delivered to the respondent within 30 days after
the respondent's request and upon payment of the fee specified in the Section
69950 of
the Government Code.
(m)
Payment of Penalty.
A civil penalty imposed pursuant to this section shall be
due and payable to the department within 60 days after the time to seek
judicial review has expired, or where the respondent has not requested a
hearing, within 20 days after the order imposing a civil penalty becomes final.
Orders imposing civil penalties shall be enforced in court pursuant to Section
12014
of the Fish and Game Code.
1. New
section filed 7-10-2015 as an emergency; operative 7-10-2015 (Register 2015,
No. 28). A Certificate of Compliance must be transmitted to OAL by 1-6-2016 or
emergency language will be repealed by operation of law on the following
day.
2. Certificate of Compliance as to 7-10-2015 order, including
amendment of subsections (h)(2) and (i), redesignation of subsections
(i)(1)(F)-(H) as subsections (i)(1)(E)-(G) and amendment of subsection
(i)(8)(A), transmitted to OAL 1-5-2016 and filed 2-18-2016; amendments
operative 2-18-2016 pursuant to Government Code section
11343.4(b)(3)
(Register 2016, No. 8).
Note: Authority cited: Sections
702 and
12025.1,
Fish and Game Code. Reference: Sections
12025
and
12025.1,
Fish and Game Code.
