MISSISSIPPI LEGISLATURE

2021 Regular Session

To: Ports and Marine Resources

By: Senator(s) Moran

Senate Bill 2784

AN ACT TO AMEND SECTIONS 49-15-401, 49-15-403, 49-15-405, 49-15-407, 49-15-409, 49-15-411, 49-15-413 AND 49-15-415, MISSISSIPPI CODE OF 1972, TO CLARIFY THE RESPONSIBILITIES OF THE MISSISSIPPI ADVISORY COMMISSION ON MARINE RESOURCES RELATIVE TO ADMINISTRATIVE HEARING PROCEDURES, COMPLAINTS AND RECOMMENDATIONS ON POTENTIAL ADMINISTRATIVE PENALTIES AND TO PROVIDE THAT THE EXECUTIVE DIRECTOR WILL MAKE THE FINAL DECISION REGARDING WHETHER A VIOLATION HAS OCCURRED AND THE APPROPRIATE PENALTY; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Section 49-15-401, Mississippi Code of 1972, is amended as follows:

     49-15-401.  It is the purpose of this article to establish an administrative hearing procedure for the * * * Commission on Department of Marine Resources to enforce the rules and regulations * * * of the commission set forth in Title 22 of the Administrative Code 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 Department of Marine Resources.  Unless specifically authorized, the * * * commission department 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.  Section 49-15-403, Mississippi Code of 1972, is amended as follows:

     49-15-403.  (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 violations pursuant to the authorities outlined in Section 49-15-401 and such matter has been brought before the * * * commission department for administrative penalty processing, the * * * commission department shall:

          (a)  Cause the complaint to be in writing and signed by the person/office making the charge, along with the recommended fine;

          (b) * * *  Insure Ensure that the complaint is filed * * * in with the * * * office of the commission executive director;

          (c) * * *  Cause the complaint to be reviewed by the executive director of the department, or his designee; and The executive director, or his designee, shall review the complaint and send or deliver a copy of the complaint and any supporting documents to the alleged violator along with a notice of the time, date and place where the allegations will be presented to the commission for their recommendation.  The matter shall not be presented to the commission before forty-five (45) days after notification has been mailed.  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.

          (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. The alleged violator shall have twenty (20) days from the date of the receipt of the complaint within which to file a written response to the allegations to be considered by the commission at a regularly scheduled meeting, or to request a formal hearing before the commission which will be conducted in accordance with Section 49-15-405.

(e)  The alleged violator may present evidence and written or oral comments at the commission meeting in which the allegations will be presented.

(f)  The alleged violator may be represented by legal counsel, at their own expense.

     (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. The commission shall make a recommendation regarding whether a violation has occurred and the amount of the recommended penalty, if any, to the executive director at a regularly scheduled meeting of the commission.  In determining the amount of the recommended penalty, the commission may consider the appropriateness of such penalty and the gravity of the violation.

     (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. The executive director will take into consideration the commission's recommendation and make the final decision regarding the penalty to be issued, which may include dismissal of the complaint, issuance of a warning in lieu of a penalty, or a monetary penalty not to exceed Ten Thousand Dollars ($10,000.00) for each violation.

 * * * (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.  Section 49-15-405, Mississippi Code of 1972, is amended as follows:

     49-15-405.  (1)  If the alleged violator requests a formal hearing within the timeframe allowed pursuant to Section 49-15-403(1)(d), 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 (certified) mail, return receipt requested, no less than fifteen (15) calendar days before the * * * time date 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 recommendation incorporating its findings of facts and conclusions of law regarding whether a violation has occurred and the appropriate * * * any penalty, if any, that it may * * * assess recommend not to exceed Ten Thousand Dollars ($10,000.00) per violation.  The executive officer shall notify the alleged violator of the commission's decision.

(6)  The commission's recommendation will then be forwarded to the executive director who will make the final decision regarding whether a violation has occurred and the appropriate penalty, if any.

(7)  If the commission has appointed a representative to conduct the hearing pursuant to subsection (2) of this section, the commission will consider the representative's recommendation at a regularly scheduled meeting, and upon the majority vote of the members present, shall make a recommendation to the executive director who will make the final decision regarding whether a violation has occurred and the appropriate penalty, if any.

(8)  The executive director's final decision shall be delivered to the alleged violator.

     SECTION 4.  Section 49-15-407, Mississippi Code of 1972, is amended as follows:

     49-15-407.  Failure of the alleged violator to request * * * an informal settlement conference or a hearing, * * * or to respond to the complaint within * * * thirty (30) twenty (20) days, or present evidence or written or oral comments at a regular commission meeting shall constitute a waiver of the right to a hearing, and any penalties assessed by the * * * commission executive director shall be due and payable as provided in Section 49-15-415.

     SECTION 5.  Section 49-15-409, Mississippi Code of 1972, is amended as follows:

     49-15-409.  The * * * commission department shall have jurisdiction over all persons and property necessary to administer and enforce the provisions of this article and the * * * rules and regulations of the commission authorities outlined in Section 49-15-401.  The * * * commission department may adopt rules and regulations to implement the provisions of this article.

     SECTION 6.  Section 49-15-411, Mississippi Code of 1972, is amended as follows:

     49-15-411.  (1)  Any individual aggrieved by a final decision of the * * * commission executive director shall be entitled to judicial review.

     (2)  Any appeal from the * * * commission's executive director'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 executive director 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 executive director's final decision 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 and the executive director's final decision to determine if the action * * * of the commission taken 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 article.  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.  Section 49-15-413, Mississippi Code of 1972, is amended as follows:

     49-15-413.  Each violation of the rules and regulations * * * of the commission set forth in Title 22 of the Administrative Code 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.  Section 49-15-415, Mississippi Code of 1972, is amended as follows:

     49-15-415.  (1)  Any penalty assessed by the * * * commission department 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 article 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 department may allow, the * * * commission department 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 executive director and recover reasonable attorney's fees and all court costs.

     (3)  A copy of the notification sent by the * * * commission department to the violator shall be sufficient proof as to the judgment of the * * * commission department.

     SECTION 9.  This act shall take effect and be in force from and after July 1, 2021.

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