SECTIONS 71216-71217 - California Statutes

PUBLIC RESOURCES CODE

SECTION 71216-71217

71216. (a) Except as provided in subdivision (b) or (c), a person
who intentionally or negligently fails to comply with the
requirements of this division may be liable for an administrative
civil penalty in an amount that shall not exceed twenty-seven
thousand five hundred dollars ($27,500) for each violation. Each day
of a continuing violation constitutes a separate violation.
(b) A person who fails to comply with the reporting requirements
set forth in Section 71205 may be liable for an administrative civil
penalty in an amount that shall not exceed twenty-seven thousand five
hundred dollars ($27,500) per violation. Each day of a continuing
violation constitutes a separate violation.
(c) A person who, knowingly and with intent to deceive, falsifies
a ballast water control report form, or knowingly and with intent to
deceive, tampers with or disables a system for controlling the
release of nonindigenous species, required by this division, may be
liable for an administrative civil penalty in an amount that shall
not exceed twenty-seven thousand five hundred dollars ($27,500) per
violation. Each day of a continuing violation constitutes a separate
violation.
(d) The executive officer of the commission may issue a complaint
to a person on whom civil liability may be imposed pursuant to this
division. The complaint shall allege the facts or failures to act
that constitute a basis for liability and the amount of the proposed
civil liability. The complaint shall be served by personal service or
certified mail and shall inform the person served of the right to a
hearing. A person served with a complaint pursuant to this
subdivision may, within 30 days after service of the complaint,
request a hearing by filing with the executive officer a notice of
defense, as described in Section 11506 of the Government Code. A
notice of defense is deemed to be filed within the 30-day period if
it is postmarked within the 30-day period. If a hearing is requested
by the person, it shall be conducted within 30 days after the
executive officer receives the notice of defense. If no notice of
defense is filed within 30 days after service of the complaint, the
executive officer shall issue an order setting liability in the
amount proposed in the complaint unless the executive officer and the
person have entered into a settlement agreement, in which case the
executive officer shall issue an order setting liability in the
amount specified in the settlement agreement. If the person has not
filed a notice of defense or if the executive officer and the person
have entered into a settlement agreement, the order shall not be
subject to review by a court or agency.
(e) A hearing required pursuant to this section shall be conducted
by an independent hearing officer, in accordance with the procedures
specified in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, except as otherwise
specified in this section. In making a determination, the hearing
officer shall take into consideration the nature, circumstances,
extent, and gravity of the violation, the violator's past and present
efforts to prevent, abate, or clean up conditions posing a threat to
the public health and safety of the environment, and the violator's
ability to pay the proposed civil penalty. After conducting a hearing
required pursuant to this section, the hearing officer shall, within
30 days after the case is submitted, issue a decision, including an
order setting the amount, if any, of the civil penalty to be imposed.
(f) An order setting civil liability and issued pursuant to this
section is effective and final upon issuance. The violator shall pay
any penalty within 30 days of service, unless he or she seeks
judicial review pursuant to subdivision (g), in which case he or she
shall pay any penalty within 30 days of service of the court's order
setting civil liability. A copy of the order shall be served by
personal service or by certified mail upon the person served with the
complaint and upon other persons who appeared at the hearing and
requested a copy.
(g) Within 30 days after service of a copy of a decision issued by
the hearing officer that the person served is liable for a civil
penalty, a person so served may file a petition for writ of mandate
for review of the decision pursuant to Section 11523 of the
Government Code. A person who fails to file the petition within the
30-day period shall not challenge the reasonableness or validity of a
decision or order of the hearing officer in any judicial proceedings
brought to enforce the decision or order or for other remedies.
Except as otherwise provided in this section, Section 1094.5 of the
Code of Civil Procedure shall govern a proceeding conducted pursuant
to this subdivision. In a proceeding pursuant to this subdivision,
the court shall uphold the decision of the hearing officer if the
decision is based upon substantial evidence in the whole record. The
filing of a petition for writ of mandate shall not stay any
corrective action required pursuant to this act or the accrual of any
penalties assessed pursuant to this act. This subdivision does not
prohibit the court from granting any appropriate relief within its
jurisdiction.
(h) An order for administrative penalties entered pursuant to this
section shall be subject to interest at the legal rate from the
filing date of the complaint as specified in subdivision (d).
(i) A provision of this chapter or a ruling of the executive
officer shall not be construed to limit, abridge, or supersede the
power of the Attorney General, at the request of the executive
officer, or upon his or her own motion, to bring an action in the
name of the people of the State of California to enjoin a violation
of this division, seek necessary remedial action by a person who
violates this division, or seek civil and criminal penalties against
a person who violates this division.
(j) In lieu of a complaint pursuant to subdivision (d) to impose
administrative civil penalties set forth in subdivisions (a), (b),
and (c), the Attorney General, at the request of the commission, may
bring an action in superior court, in the name of the people of the
State of California, to enjoin a violation of this division, seek
necessary remedial action by a person who violates this division, or
seek civil penalties in the amounts set forth in subdivisions (a),
(b), and (c).

71217. A person who violates subdivision (c) of Section 71216 is
guilty of a misdemeanor, and is punishable by imprisonment in the
county jail for not more than one year.