Section 672.2 - Dreissenid Mussel Penalty and Appeal Procedures(a) Penalties. This section applies to violations of section 672.1 of these regulations.
(1) The department will send a written notification of penalty assessment to persons against whom an administrative penalty has been imposed. The penalty amount shall be based on a review of all relevant circumstances. The department may provide notification together with its notice that a person or entity has violated section 672.1, or may provide the notification of penalty assessment by writing within 30 business days after a person has been issued a citation pursuant to subsection 672.1(c)(5). The department may provide written notification by mail or email. The notification will at a minimum include a brief description of the reason the administrative penalty has been imposed, the amount of the administrative penalty, and the time and method for providing payment. The notification shall also include a statement of a person's right to appeal an administrative penalty and directions explaining how to initiate an appeal.(2) Requests for an appeal must be postmarked no later than 30 calendar days after issuance of the notification of penalty assessment and shall include an advance deposit of the full amount of the administrative penalty. Any administrative penalty that has been deposited shall be refunded if it is determined, after an appeal hearing, that the penalty is reduced or excused. No request for an appeal to an administrative penalty shall be considered unless both a request for an appeal hearing and a deposit in the full amount of the penalty is received in a timely manner by the department.(3) Anyone who is issued a citation or notice of violation pursuant to section 672.1, but does not receive a notification of penalty assessment shall contact the department within 30 calendar days of being issued a citation or notice of violation and provide the department with a current address to send the notification of penalty assessment. The department is to be reached by calling (866) 440-9530 or sending an email to invasives@wildlife.ca.gov.(4) The department shall deposit administrative penalties into the Fish and Game Preservation Fund.(5) In the event a person fails to pay the administrative penalty when due, the department may take any actions permitted by law to collect the unpaid penalty, which shall accrue interest at a rate of ten percent per year, commencing 30 calendar days after the administrative penalty becomes due and continuing until paid. In the event a civil action is commenced to collect the administrative penalty, the department shall be entitled to recover all costs associated with the enforcement, investigation, establishment and collection of the penalty. Costs include, but are not limited to, staff time and costs incurred in the investigation, establishment and the collection or processing of the penalty. The penalty and any late payment charges and costs shall be deposited into the Fish and Game Preservation Fund.(b) Appeal Procedure. This subsection shall govern appeals when a person requests an appeal of the imposition of administrative penalties.
(1) A person wishing to appeal a decision of the department shall file a written request for an appeal with the department's Office of the General Counsel and the request shall be postmarked no later than 30 calendar days after the department's issuance of the notification of penalty assessment. The time limit for filing a request for an appeal shall be deemed jurisdictional and may not be waived. A request for an appeal shall specifically set forth the decision being appealed and the legal and factual grounds for the appeal. The request for an appeal may include a request for an oral hearing. The request for an appeal and any subsequent written submittals shall be signed by the appellant under penalty of perjury.(2) Administrative penalties imposed by the department shall be presumed to be correct, and the appellant shall have the burden of proof.(3) Appeals shall be considered by an unbiased hearing officer designated by the director, who has not served as an investigator, prosecutor or advocate regarding the department decision. The hearing officer shall control the nature and order of the proceedings. Appeals may be informal and may, at the hearing officer's discretion, be based on written submittals only.(4) The hearing officer shall notify the appellant if the appeal will be limited to written submittals and shall notify the appellant of the date by which the appellant must provide any additional submittals or documentary evidence to the department. No later than 30 business days after receipt of the appellant's additional submittals or evidence, the department may submit a response to the hearing officer, with a copy sent to the appellant, along with any supporting documentary evidence and/or declarations under penalty of perjury. No later than 15 business days after receipt of the department's response, the appellant may submit a reply to the hearing officer, with a copy sent to the department that addresses arguments and evidence raised in the department's response. The appellant's reply shall not contain any new evidence or new factual or legal grounds for challenging the department's action.(5) The hearing officer shall only consider evidence that is relevant to whether the action or failure to act identified in the notification of penalty assessment in fact occurred and whether the recipient of the administrative penalty has caused or allowed the action or failure to act to occur.(6) If determined necessary by the hearing officer, oral hearings shall be held at such times and locations as determined by the hearing officer. The hearing officer may engage in ex parte communications with the parties for the purpose of settling a time and place of hearing. The parties shall be notified of the time and place set for hearing at least 10 calendar days prior to the date of the hearing. The hearing officer may continue the hearing as he deems necessary.(7) The failure of an appellant who has requested an oral hearing to appear at the hearing, after receiving notice of the hearing, shall constitute abandonment of the appeal unless the appellant has submitted a written request for a continuance at least two days prior to the oral hearing.(8) Any appeal conducted pursuant to this section need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely 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. However, the hearing 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. The hearing officer may examine any party or witness.(9) Within 45 calendar days of the conclusion of any oral hearing, or the day by which the department receives all written submittals if the appeal is based on written submittals only, the hearing officer shall provide the parties with a written decision containing the hearing officer's findings of fact and conclusions. The decision of the hearing officer shall be the final administrative decision of the department.Cal. Code Regs. Tit. 14, § 672.2
1. New section filed 2-10-2016; operative 4-1-2016 (Register 2016, No. 7). Note: Authority cited: Sections 702, 2301 and 2302, Fish and Game Code. Reference: Sections 2301 and 2302, Fish and Game Code.
1. New section filed 2-10-2016; operative 4/1/2016 (Register 2016, No. 7).