House Bill 1200

AN ACT TO REVISE THE ADMINISTRATIVE HEARING PROCEDURE FOR THE MISSISSIPPI DEPARTMENT OF MARINE RESOURCES; TO AMEND SECTION 49-15-401, MISSISSIPPI CODE OF 1972, TO DESIGNATE A COMPLIANCE OFFICER WITHIN THE DEPARTMENT OF MARINE RESOURCES; TO AMEND SECTION 49-15-403, MISSISSIPPI CODE OF 1972, TO PROVIDE THE POWERS AND DUTIES OF THE COMPLIANCE OFFICER; TO AMEND SECTION 49-15-411, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT NO RELIEF SHALL BE GRANTED BASED UPON THE COURT'S FINDING OF HARMLESS ERROR BY THE DEPARTMENT IN COMPLYING WITH CERTAIN PROCEDURAL REQUIREMENTS; TO AMEND SECTION 49-15-417, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT PERSONS COME BEFORE THE DEPARTMENT, NOT COMMISSION; TO AMEND SECTIONS 49-27-33 AND 49-27-35, MISSISSIPPI CODE OF 1972, TO CLARIFY THE AUTHORITY OF THE COMMISSION TO MAKE RECOMMENDATIONS; TO AMEND SECTION 49-27-37, MISSISSIPPI CODE OF 1972, TO REQUIRE WRITTEN RECOMMENDATIONS OF THE COMMISSION INCORPORATING ITS FINDINGS AND REASONS; TO CLARIFY THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF MARINE RESOURCES' DECISION MAKING AUTHORITY; TO AMEND SECTION 49-27-51, MISSISSIPPI CODE OF 1972, TO CLARIFY THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF MARINE RESOURCES' DECISION MAKING AUTHORITY; TO BRING FORWARD SECTIONS 49-15-405, 49-15-67 AND 49-27-41, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; 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. (1) It is the purpose of this article to establish an administrative hearing procedure for the Mississippi Department of Marine Resources to enforce the rules and regulations 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 Department of Marine Resources. Sections 49-27-1 through 49-27-71 shall control the administrative hearing procedure for the Coastal Wetlands Protection Act. Unless specifically authorized, the 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.

(2) The Department of Marine Resources shall designate a compliance officer within the department for the purpose of administering this article. The powers and duties of the compliance officer are provided in Section 49-15-403.

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

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

(b) Ensure that the complaint is filed with the * * *~~executive director~~ compliance officer;

(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,~~ compliance officer shall review all information on file to determine a recommendation on the merit of the complaint.

(3) If the * * *~~executive director, or his designee,~~ compliance officer's review determines that the complaint lacks merit, the * * *~~executive director~~ compliance officer may recommend * * *~~dismiss~~ dismissal of the complaint.

* * * ~~(3)~~ If the * * *~~executive director, or his designee,~~ compliance officer 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~~ compliance officer may recommend * * *~~impose~~ imposing a fine not to exceed Ten Thousand Dollars ($10,000.00) for each violation. The * * *~~executive director~~ compliance officer shall send a copy of * * * his or her written recommendation to the commission for review and recommendation to the executive director who will make the final decision regarding the complaint.

(4) The alleged violator shall have fifteen (15) days from receipt of the finding and imposed fine of the executive director within which to file 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. The alleged violator may present evidence and written or oral comments at the executive director's conference. The alleged violator may be represented by legal counsel, at his or her own expense. If, in the judgment of the executive director, or his designee, a reasonable settlement is reached, the recommended penalty shall be revised accordingly. The executive director shall 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. If a request for information settlement is not received within the timeframe provided, the executive director's recommended fine will be the final decision.

SECTION 3. 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 executive director shall be entitled to judicial review.

(2) Any appeal from the 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 hearing officer. The appeal shall be filed within thirty (30) days after notification of the final decision of the 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 executive director, and the filing of a bond in the sum of Five Hundred Dollars ($500.00) conditioned that if the 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 executive director's final decision to determine if the decision is unlawful for the reason that it was:

(a) Not supported by any substantial evidence;

(b) Arbitrary or capricious; or

(4) No relief shall be granted based upon the court's finding of harmless error by the * * *~~executive director~~ department 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 4. Section 49-15-417, Mississippi Code of 1972, is amended as follows:

49-15-417. 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~~ department 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 5. Section 49-27-33, Mississippi Code of 1972, is amended as follows:

49-27-33. The commission, after reasonable notice in writing to the holder of a permit and after a hearing in the manner as provided in Sections 49-27-15 through 49-27-21 of this chapter, shall recommend to suspend or revoke a permit if it finds that the applicant has not substantially complied with one or more of the conditions or limitations set forth in the permit or has exceeded the scope of the activities as set forth in the application.

SECTION 6. Section 49-27-35, Mississippi Code of 1972, is amended as follows:

49-27-35. The commission shall state, upon its record, its findings and reasons for all * * *~~actions taken~~ recommendations given pursuant to Sections 49-27-23 through 49-27-37. When a permit is granted or modified, the commission shall describe the public interest to be served by granting or modifying the permit. When a permit or modification is denied, the commission shall describe the public interest which would be adversely affected by granting or modifying the permit.

SECTION 7. Section 49-27-37, Mississippi Code of 1972, is amended as follows:

49-27-37. (1) The commission shall issue a written recommendation incorporating its findings and reasons for all actions recommended pursuant to Section 49-27-23 through 49-27-37.

(2) The commission's recommendation shall then be forwarded to the executive director who will make the final decision regarding any order in issuance, denial, revocation or suspension of a permit or the issuance of a permit or modified or conditional permit.

(3) The * * *~~commission~~ department shall send a copy of any order in issuance, denial, revocation or suspension of a permit to the parties stated in Section 49-27-17, and such orders must be sent within ninety (90) days from the receipt of a complete application, or within ninety (90) days from an amendment to the application as provided by Section 49-27-11(2), in the case of granting or denying or thirty (30) days from the date of the hearing in the case of suspension or revocation, unless an extension is requested as provided in subsection ( * * *24) and approved by the commission.

( * * *24) An applicant may request, in writing, additional extensions up to ninety (90) days for the processing of an application.

SECTION 8. Section 49-27-51, Mississippi Code of 1972, is amended as follows:

49-27-51. (1) (a) If a person in violation of this chapter submits a proper application for any unauthorized work and the commission determines that the work has been conducted in accordance with the public policy as set forth in Section 49-27-3, the commission * * *~~shall issue~~ may recommend issuing after-the-fact authorization for the work.

(b) For conducting the work without first obtaining a current and valid permit and other violations of this chapter, the commission may * * *~~order~~ recommend ordering and * * *~~levy~~ levying a penalty of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00) per day for each day the violation has existed for residential type regulated activity and a penalty of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00) per day for each day the violation has existed for commercial and industrial type regulated activity.

(c) The commission shall issue a written recommendation incorporating its findings and reasons for all actions and recommendations pursuant to this section.

(d) The commission's recommendation shall then be forwarded to the executive director who will make the final decision regarding any after-the-fact authorization, order or levy of a penalty.

(2) If the person continues the violation, the Attorney General of the State of Mississippi at the request of the * * *~~commission~~ department, a district attorney having jurisdiction, or a county attorney having jurisdiction may initiate the civil or criminal actions, or both civil and criminal actions, as described in this chapter against the person.

(3) The Attorney General, * * *~~commission~~ department, district attorney or county attorney may initiate action to enjoin any person in violation of this chapter.

SECTION 9. Section 49-15-405, Mississippi Code of 1972, is brought forward as follows:

49-15-405. (1) If the alleged violator requests a formal hearing within thirty (30) days from the receipt of the finding and imposed fine, or within fifteen (15) days from the receipt of the executive director's decision following the information settlement, the executive director shall designate a representative of the Attorney General's office to preside over the hearing and render a finding and recommendation as provided in this section.

(2) 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 hearing officer shall have the right and duty to impose reasonable restrictions as he may deem necessary or appropriate to ensure 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 hearing officer.

(3) For purposes of such hearing, the hearing officer 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 hearing officer 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 hearing officer, the hearing officer 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.

(4) At the conclusion of the hearing, the hearing officer shall issue a written recommendation incorporating his findings of facts and conclusions of law regarding whether a violation has occurred and the appropriate penalty, if any, that he may assess not to exceed Ten Thousand Dollars ($10,000.00) per violation.

(5) The hearing officer's recommendation shall 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.

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

SECTION 10. Section 49-15-67, Mississippi Code of 1972, is brought forward as follows:

49-15-67. (1) (a) Any party may file an appeal from the decision of the commission with the Chancery Court of Harrison County, Second Judicial District. The appeal shall be filed within thirty (30) days of the decision of the commission. An appeal to the chancery court shall not stay the execution of an order of the commission. Any party aggrieved by an order of the commission may petition the chancery court for an appeal with supersedeas and the court shall grant a hearing on the petition, and upon good cause shown may grant the appeal with supersedeas. If granted, the appellant shall be required to post a bond with sufficient sureties according to law in an amount to be determined by the court.

(b) If the court finds that the order appealed from is supported by substantial evidence, is not arbitrary and capricious and does not violate constitutional rights, the court shall affirm the order of the commission.

(2) Upon the filing of an appeal, the clerk of the chancery court shall serve notice upon the commission. The commission shall within sixty (60) days from the service of the notice, or within such additional time as the court may for cause allow, certify to the court the record in the case. The record shall include transcript of all testimony, objections, exhibits or copies thereof, pleadings, proceedings, orders, findings and opinions entered in the case. However, the parties and commission may stipulate that only a specified portion of the record shall be certified to the court as the record on appeal.

(3) If, upon hearing the appeal, it appears to the court that any testimony has been improperly excluded by the commission or that the facts disclosed by the record are insufficient for the equitable disposition of the appeal, the court shall refer the case back to the commission to take such evidence as the court may direct and report the evidence to the court with the commission's findings of fact and conclusions of law.

SECTION 11. Section 49-27-41, Mississippi Code of 1972, is brought forward as follows:

49-27-41. Such appeal shall be brought by a complaint in writing, stating fully the reasons therefor, signed by an authorized party, and shall be served at least twelve (12) days before the return date upon the commission and upon all parties having an interest adverse to the appellant as designated under subsection (a) of Section 49-27-39. Such appeals shall be brought to the next return day of the court after the filing of such appeal or may be returned to a day set by fiat of the court. A cost bond must be posted with sufficient sureties payable to the state in the sum of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), to be fixed in the order appealed from and to be filed with and approved by the executive director of the commission, who shall forthwith certify the same, together with a certified copy of the transcription record of the proceedings in the matter to the chancery court to which the appeal is taken, which shall thereupon become the record of the cause. An appeal to the chancery court as provided herein shall not stay the execution of an order of the commission. Any party aggrieved by an order of the commission may petition the chancery court for an appeal with supersedeas and the chancellor shall grant a hearing on the petition, and upon good cause shown may grant the appeal with supersedeas in which case the appellant shall be required to post a bond with sufficient sureties according to law in an amount to be determined by the chancellor.

SECTION 12. This act shall take effect and be in force from and after July 1, 2024.