2005 Regular Session
To: Ports and Marine Resources; Judiciary, Division A
By: Senator(s) Gollott
AN ACT TO ESTABLISH AN ADMINISTRATIVE HEARING PROCEDURE FOR THE COMMISSION ON MARINE RESOURCES TO ENFORCE ITS RULES AND REGULATIONS AND ANY STATUTES WITHIN THE COMMISSION'S JURISDICTION; TO PROVIDE THAT THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF MARINE RESOURCES SHALL REVIEW EACH COMPLAINT TO DETERMINE IF THERE ARE REASONABLE GROUNDS TO INDICATE THAT A VIOLATION HAS OCCURRED; TO PROVIDE THAT WHEN REASONABLE GROUNDS EXIST, THE EXECUTIVE DIRECTOR MAY RECOMMEND A FINE NOT TO EXCEED $10,000.00 PER VIOLATION; TO ALLOW THE ALLEGED VIOLATOR TO REQUEST AN INFORMAL SETTLEMENT CONFERENCE WITH THE EXECUTIVE DIRECTOR AND TO ALLOW THE EXECUTIVE DIRECTOR DISCRETION TO REVISE THE RECOMMENDED PENALTY; TO ALLOW THE ALLEGED VIOLATOR TO REQUEST A HEARING BEFORE THE COMMISSION; TO REQUIRE THE COMMISSION TO SCHEDULE A HEARING UPON REQUEST OF AN ALLEGED VIOLATOR; TO REQUIRE A MAJORITY VOTE OF THE COMMISSION BEFORE ASSESSING A PENALTY AND ISSUING A WRITTEN OPINION REGARDING THE ASSESSMENT OF THE PENALTY; TO ALLOW THE WAIVER OF THE RIGHT TO AN INFORMAL SETTLEMENT CONFERENCE OR A HEARING; TO PROVIDE FOR JUDICIAL REVIEW OF ANY FINAL DECISION OF THE COMMISSION; TO AUTHORIZE THE IMPOSITION OF A CIVIL PENALTY; TO PROVIDE THAT CRIMINAL AND CIVIL PENALTIES BE PAID INTO THE SEAFOOD FUND; TO PROVIDE CRIMINAL IMMUNITY FOR WITNESSES SUBPOENAED BY THE COMMISSION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. It is the purpose of this act to establish an administrative hearing procedure for the Commission on Marine Resources to enforce the rules and regulations of the commission and Sections 49-15-1 through 49-15-321, 49-27-1 through 49-27-71, 59-21-111, and such other statutes within the jurisdiction of the Commission on Marine Resources. Unless specifically authorized, the commission shall not seek both administrative and criminal penalties against violators of the statutes referred to herein for the same offense, except as provided in Section 49-15-63. The commission will notify the Department of Marine Resources of violations to bring forward for administrative penalty processing.
SECTION 2. (1) When any allegation or charge in the form of a complaint has been made against a person for violating the rules and regulations of the commission and such matter has been brought before the commission for administrative penalty processing, the commission shall:
(a) Cause the complaint to be in writing and signed by the person making the charge;
(b) Insure that the complaint is filed in the office of the commission;
(c) Cause the complaint to be reviewed by the executive director of the department, or his designee; and
(d) Send or deliver a copy of the complaint and any supporting documents to the alleged violator along with a request for the alleged violator to respond to the allegations within thirty (30) days. The notification shall be accomplished by any of the methods provided for by the Mississippi Rules of Civil Procedure. Citations issued at the time of the alleged violation by marine enforcement officers shall constitute sufficient notice. (2) Upon receipt of the response and any supporting documents from the alleged violator, the executive director, or his designee, shall review all information on file to determine the merit of the complaint. If the executive director, or his designee, determines that the complaint lacks merit, the executive director may recommend that the complaint be dismissed.
(3) If the executive director, or his designee, determines that there are reasonable grounds to indicate that a violation has occurred or if the alleged violator admits to the truth of the allegations upon which the complaint is based, the executive director may recommend to the commission a fine not to exceed Ten Thousand Dollars ($10,000.00) for each violation. The executive director shall send a copy of the recommendation to the alleged violator and the commission.
(4) (a) The alleged violator shall have fifteen (15) days from receipt of the recommendation of the executive director within which to file with the commission a written request for an informal settlement conference with the executive director, or his designee. If the alleged violator requests a conference, the executive director, or his designee, shall meet with the alleged violator to discuss the proposed penalty and the possibility of an agreed settlement. If, in the judgment of the executive director, or his designee, a reasonable settlement is reached, the recommended penalty shall be revised accordingly.
(b) If the alleged violator and the executive director, or his designee, fail to reach an agreement on the recommended penalty, or if the alleged violator does not file a written request for a settlement conference, the alleged violator shall file within twenty (20) days of receipt of the recommendation of the executive director a written request for a hearing before the commission.
(5) The commission shall consider the alleged violation and the recommendation of the department at a regularly scheduled meeting of the commission. In determining the amount of the penalty, the commission may consider the appropriateness of such penalty and the gravity of the violation. The commission may issue a warning in lieu of proposing a penalty.
SECTION 3. (1) The commission shall, within forty (40) days of notification from the alleged violator that a hearing is requested, schedule a hearing at a date, time and place to be determined by the commission. For good cause shown the commission may grant a continuance or continuances of such hearings. Written notice of the date, time and place of such hearing shall be mailed to the alleged violator by registered mail, return receipt requested, no less than fifteen (15) days before the time of the hearing.
(2) In lieu of a hearing before the full commission, the commission may designate one or more members of the commission or a representative of the Attorney General's office to preside over the hearing and render a finding and recommendation for the full commission.
(3) A duly qualified court reporter shall be in attendance and shall make a full and complete transcript of the proceedings. The hearing shall be closed unless the alleged violator requests a public hearing. The commission shall have the right and duty to impose reasonable restrictions as it may deem necessary or appropriate to ensure an orderly, expeditious and impartial proceedings, and shall admit all relevant and material evidence except evidence which is unduly repetitious. Hearsay shall be admissible to the extent permitted by the commission.
(4) For purposes of such hearing, the commission is hereby empowered to require the attendance of witnesses, administer oaths and hear testimony, either oral or documentary, for and against the alleged violator. The commission shall have the authority to issue subpoenas to compel the attendance of witnesses and the production of books, papers, records or other documentary evidence at a hearing. Subpoenas to be issued shall be delivered to the sheriff of the county where they are to be executed and the sheriff shall serve them. In case of the failure of any person to comply with any subpoena issued by the commission, the commission or its authorized representative may invoke the aid of any court of general jurisdiction of this state. The court may thereupon order such person to comply with the requirements of the subpoena. Failure to comply with the order of the court may be treated as contempt thereof.
(5) At the conclusion of the hearing, the commission, upon the majority vote of the members present, shall issue a written opinion incorporating its findings of facts and conclusions of law and any penalty that it may assess not to exceed Ten Thousand Dollars ($10,000.00) per violation. The executive officer shall notify the alleged violator of the commission's decision.
SECTION 4. Failure of the alleged violator to request an informal settlement conference or a hearing or to respond to the complaint within thirty (30) days shall constitute a waiver of the right to a hearing, and any penalties assessed by the commission shall be due and payable as provided in Section 8 of this act.
SECTION 5. The commission shall have jurisdiction over all persons and property necessary to administer and enforce the provisions of this act and the rules and regulations of the commission. The commission may adopt rules and regulations to implement the provisions of this act.
SECTION 6. (1) Any individual aggrieved by a final decision of the commission shall be entitled to judicial review.
(2) Any appeal from the commission's decision shall be filed in the Chancery Court of the Second Judicial District of Harrison County, Mississippi, on the record made, including a verbatim transcript of the testimony at the hearing held before the commission. The appeal shall be filed within thirty (30) days after notification of the decision of the commission is mailed or served, and the proceedings in chancery court shall be conducted as other matters coming before the court on appeal. The appeal shall be perfected upon filing notice of the appeal and by the prepayment of all estimated costs, including the cost of preparation of the record of the proceedings before the commission, and the filing of a bond in the sum of Five Hundred Dollars ($500.00) conditioned that if the action of the commission be affirmed by the chancery court, the aggrieved party shall pay the costs of the appeal to the chancery court.
(3) The scope of review of the chancery court in such cases shall be limited to a review of the record made before the commission to determine if the action of the commission is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the individual.
(4) No relief shall be granted based upon the court's finding of harmless error by the commission in complying with the procedural requirements of this act. If there is a finding of prejudicial error in the proceedings, the cause may be remanded for a rehearing consistent with the findings of the court.
(5) Any party aggrieved by action of the chancery court may appeal to the State Supreme Court in the manner provided by law.
SECTION 7. Each violation of the rules and regulations of the commission or violations of the statutes set forth in Chapters 15 and 27 of Title 49, and Chapter 21 of Title 59, Mississippi Code of 1972, shall be subject to the imposition of a civil penalty up to Ten Thousand Dollars ($10,000.00).
SECTION 8. (1) Any penalty assessed by the commission shall be due and payable within forty-five (45) days of the notification of the decision. All sums of money collected as a result of criminal or civil penalties levied under this act shall be paid into the Seafood Fund created and described in Section 49-15-17.
(2) If the judgment is not paid within the forty-five (45) days, or within such additional time as the commission may allow, the commission may file suit in the chancery court of the county where the defendant resides or in the case of a nonresident defendant in the Chancery Court of the Second Judicial District of Harrison County or any other court with appropriate jurisdiction to enforce the decision of the commission and recover reasonable attorney's fees and all court costs.
(3) A copy of the notification sent by the commission to the violator shall be sufficient proof as to the judgment of the commission.
SECTION 9. No person shall be subject to criminal prosecution or to any penalty or forfeiture in a separate proceeding for or on account of any transaction, matter or issue concerning which he may be required to testify to or produce evidence, or provide documentation, before the commission or at any of its hearings or conferences, or in compliance with any subpoena; however, no person testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.
SECTION 10. The provisions of Sections 1 through 9 shall be codified as a separate article in Chapter 15, Title 49, Mississippi Code of 1972.
SECTION 11. This act shall take effect and be in force from and after July 1, 2005.