California Code of Regulations
Title 14 - Natural Resources
Division 5 - San Francisco Bay Conservation and Development Commission
Appendices
Appendix I - Statement of Defense Form
BY ____________________, 20___: (1) COMPLETE THIS FORM (OR A DOCUMENT PROVIDING THE INFORMATION REQUESTED BY THIS FORM), (2) INCLUDE WITH THE COMPLETED FORM ALL DOCUMENTS, DECLARATIONS, UNDER PENALTY OF PERJURY, AND OTHER EVIDENCE YOU WANT PLACED IN THE RECORD AND TO BE CONSIDERED BY THE COMMISSION, (3) LIST ANY WITNESSES WHOSE DECLARATION IS PART OF THE STAFF CASE AS IDENTIFIED IN THE VIOLATION REPORT/COMPLAINT FOR ADMINISTRATIVE CIVIL LIABILITY THAT YOU WISH TO CROSS-EXAMINE, THE AREA OF KNOWLEDGE ABOUT WHICH YOU WANT TO CROSS-EXAMINE THE WITNESS, AND THE INFORMATION YOU HOPE TO ELICIT BY CROSS-EXAMINATION, AND (4) RETURN THE COMPLETED FORM AND ALL INCLUDED MATERIALS TO THE SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION STAFF. FAILURE TO DO SO, OR TO SUBMIT A WRITTEN EXTENSION REQUEST (AS DISCUSSED BELOW), MEANS THAT YOU WILL WAIVE THE OPPORTUNITY TO RAISE ANY DEFENSES OR MITIGATING FACTORS OR TO INTRODUCE ANY EVIDENCE AND THAT THE ENFORCEMENT COMMITTEE OR COMMISSION CAN REFUSE TO CONSIDER ANY STATEMENTS AND EVIDENCE THAT YOU SUBMIT AT A LATER DATE WHEN THE ENFORCEMENT COMMITTEE OR COMMISSION HEARS THIS MATTER.
ANY STATEMENTS THAT YOU MAKE ON THIS FORM (OR IN A DOCUMENT PROVIDING THE INFORMATION REQUESTED BY THIS FORM) WILL BECOME PART OF THE ENFORCEMENT RECORD AND MAY BE USED AGAINST YOU.
YOU MAY WISH TO CONSULT WITH OR RETAIN AN ATTORNEY BEFORE YOU COMPLETE THIS FORM OR OTHERWISE CONTACT THE COMMISSION ENFORCEMENT STAFF.
This form is enclosed with a violation report/complaint for administrative civil liability. The violation report/complaint indicates that you may be responsible for or in some way involved in either a violation of the Commission's laws, a Commission permit, or a Commission cease and desist order. The violation report/complaint summarizes what the possible violation involves, who may be responsible for it, where and when it occurred, if the Commission staff is proposing any administrative civil penalty and, if so, how much, and other pertinent information concerning the possible violation.
This form requires you to respond to the alleged facts contained in the violation report/complaint, to raise any defenses that you believe apply, and to inform the staff of all facts that you believe may exonerate you of any legal responsibility for the possible violation or may mitigate your responsibility. This form also requires you to enclose with the completed statement of defense form copies of all written documents, such as letters, photographs, maps, drawings, etc. and written declarations under penalty of perjury that you want the Commission to consider as part of this enforcement hearing. Failure to raise a defense or mitigating factor in or to submit evidence with your response to the violation report/complaint will waive your right to raise such defense or mitigating factor or to submit such evidence at the enforcement hearing on this matter. This form also requires you to identify by name any person whose declaration under penalty of perjury was submitted by staff with the violation report/complaint whom you may want to cross-examine at the enforcement hearing on this matter, the area of knowledge that you want to cover in the cross-examination, the nature of the testimony that you hope to elicit, and the reasons that you believe other means of producing this evidence are unsatisfactory. Finally, if the staff is only proposing a civil penalty (i.e., issuance of either a cease and desist order or a permit revocation order is not proposed), this form allows you to pay the proposed civil penalty without contesting the matter if you chose to do so, subject to notification of the amount by the Commission.
IF YOU WANT TO CROSS-EXAMINE ANY PERSON WHOSE DECLARATION UNDER PENALTY OF PERJURY STAFF HAS SUBMITTED WITH THE VIOLATION REPORT/COMPLAINT, YOU MUST COMPLETE PARAGRAPH EIGHT TO THIS STATEMENT OF DEFENSE FORM.
Complete this form as fully and accurately as you can and return an original and one copy of the completed form and an original and one copy of all documents that you want to be made part of the record of the enforcement proceeding, no later than 35 days after this form was mailed to you, to the Commission's enforcement staff at the following address:
SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION
375 BEALE STREET, SUITE 510
SAN FRANCISCO, CA 94105
If you believe that you have good cause for not being able to complete this form and submit all written documents and any declarations under penalty of perjury that you want the Commission to consider within the required 35 days of its mailing, you may, within that time, submit a written extension request explaining why you need additional time to respond. If the Executive Director has issued a combined violation report and complaint for administrative liability, or only a compliant for administrative liability, your extension request shall include a waiver of and consent to extend the 60-day time limit for a hearing on the complaint under Government Code Section 66641.6(b).
If the violation report/complaint that accompanied this statement of defense form included a proposed administrative civil penalty, you may resolve the civil penalty aspect of the alleged violation by simply providing to the staff a certified cashier's check in the amount of the proposed civil penalty within the 35-day time period. If you choose to follow this alternative, the Executive Director will cash your check and place a brief summary of the violation and proposed administrative civil penalty along with a notation that you are choosing to pay the civil penalty rather than contesting it on an administrative permit listing. (See 14 C.C.R. § 11322(g).) If no Commissioner objects to the amount of the administrative civil penalty, your payment will resolve the civil penalty portion of the alleged violation. If a Commissioner objects to the amount of the proposed administrative civil penalty, the Commission shall determine by a majority of those present and voting whether to accept or object to the proposed civil penalty. If such a majority votes to accept the proposed civil penalty, your payment will resolve the civil penalty portion of the alleged violation. If such a majority objects to the proposed civil penalty, the Commission shall direct the staff to return the money paid to you and shall direct you to file your completed statement of defense form and all supporting documents within 35 days of the Commission's actions. Of course, you also have the opportunity of contesting the fine from the outset by completing this form and filing it and all supporting documents within 35 days of its having been mailed to you.
If you have any questions, please contact ______________________________ of the Commission Enforcement Staff as soon as possible at telephone number 415-352-3600.
1. Facts or allegations contained in the violation report/complaint that you admit (with specific reference to the paragraph number in the violation report/complaint):
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2. Facts or allegations contained in the violation report/complaint that you deny (with specific reference to paragraph number in the violation report/complaint):
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3. Facts or allegations contained in the violation report/complaint of which you have no personal knowledge (with specific reference to paragraph number in the violation report/complaint):
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4. Other facts which may exonerate or mitigate your possible responsibility or otherwise explain your relationship to the possible violation (be as specific as you can; if you have or know of any documents, photographs, maps, letters, or other evidence that you believe are relevant, please identify such evidence by name, date, type, and any other identifying information and provide the original or a copy if you can):
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5. If the Executive Director is proposing that the Commission impose an administrative civil penalty as part of this enforcement proceeding and if you would be unable to pay the proposed penalty or paying the proposed penalty would have a substantial adverse effect on your ability to continue in business, provide factual information establishing such inability to pay or such adverse effect. Submit all relevant supporting documentation which may include but not be limited to audited financial statements and reports (or if not audited, then those that are the basis of tax returns or regulatory filings), balance sheets, profit and loss statements, statements of net worth, annual budgets, bond prospectuses, and tax returns including supporting forms and schedules as may be applicable. Before submitting this information redact (cover or blackout) all personal information including your social security or taxpayer identification number, driver's license/state identification number, financial account number and any other private, non-public personal information including a residential address, personal telephone numbers, or personal email address:
6. Any other information, statement, etc. that you want to make:
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7. Documents, exhibits, declarations under penalty of perjury or other materials that you have attached to or enclosed with this statement to support your answers or that you want to be made part of the administrative record for this enforcement proceeding. (Please list in chronological order by date, author, and title and enclose a copy with this completed form):
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8. Name of any person whose declaration under penalty of perjury was submitted with the violation report/complaint as being part of the staff's case who the respondent wants to cross-examine, identify all documents referred to in such person's declaration about which you want to cross-examine the person, the area or areas of information about which the respondent wants to cross-examine the person, and the information that the respondent hopes to elicit in cross-examination, and state the reason(s) why some other method of proving this information is unsatisfactory.
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1. New Appendix filed 5-18-87; operative 6-17-87 (Register 87, No. 30.)
2. Amendment filed 10-11-89; operatvie 11-10-89 (Register 89, No. 43.)
3. Change without regulatory effect relocating Appendix I from chapter 17 to chapter 24 filed 12-31-2020 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.)
4. Amendment of appendix and new NOTE filed 6-7-2022; operative 10-1-2022 (Register 2022, No. 23).
Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 66638, 66641.5(e) and 66641.6, Government Code; and Sections 29601, 29610 and 29611, Public Resources Code.
