§ 748.5. Procedures for Imposing Civil Penalties and Conducting Hearings.
14 CA ADC § 748.5Barclays Official California Code of Regulations
14 CCR § 748.5
§ 748.5. Procedures for Imposing Civil Penalties and Conducting Hearings.
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.
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.
(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.
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.
(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.
(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.
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.
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].
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.
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.
(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.
(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:
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.
(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.
(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.
(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.
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].
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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).
(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.
(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).
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.
Credits
Note: Authority cited: Sections 702 and 12025.1, Fish and Game Code. Reference: Sections 12025 and 12025.1, Fish and Game Code.
History
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).
This database is current through 11/24/23 Register 2023, No. 47.
Cal. Admin. Code tit. 14, § 748.5, 14 CA ADC § 748.5
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