California Assembly Bill AB2082 Amended / Bill

 BILL NUMBER: AB 2082AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 10, 2012 INTRODUCED BY Assembly Member Atkins FEBRUARY 23, 2012 An act to add Sections 6224.3, 6224.4, and 6224.5 to the Public Resources Code, relating to public lands. LEGISLATIVE COUNSEL'S DIGEST AB 2082, as amended, Atkins. Public lands: State Lands Commission: violations. Existing law establishes the State Lands Commission in the Natural Resources Agency. Under existing law, the commission classifies state land for its different possible uses and has jurisdiction over various state lands. This bill would prohibit a person from constructing,  designing,  placing, maintaining, owning, using, or possessing a structure or facility on land  that is  under the commission's jurisdiction  , unless all necessary easements, leases, permits, and other instruments required by law   and owned by the state, without first obtaining all necessary easements, leases, or permits from the commission  that authorize the construction, design, placement, maintenance, ownership, use, or possession of the structure or facility  have been obtained  . This bill would establish a civil penalty  or fee  for a violation of that provision. A person who violates that provision would either be liable for a penalty of not more than $1,000 a day or  assessed a monthly use and occupancy fee   an amount  that is not more than 60% higher than the full fair market rental for each  day   month  that a violation occurs  , as specified  . The bill would state criteria for determining the appropriate penalty  or fee  . The bill would exempt a telegraph or telephone corporation undertaking specified action and a franchised cable television corporation, limited to their usage of poles, conduits, cables, wires, and associated appurtenances under either their ownership or the ownership of an electrical corporation, from that penalty  and fee  . The bill, among other things, also would establish procedures to enjoin such activity, remove a violating structure or facility, and serve notice of any violation.  The bill would exempt certain persons from the bill's prohibitions and would authorize the commission to adopt regulations to carry out the bill.  Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 6224.3 is added to the Public Resources Code, to read: 6224.3. (a) A person shall not construct,  design,  place, maintain, own, use, or possess a structure or facility on land  that is  under the commission's jurisdiction  unless all necessary easements, leases, permits, and other instruments required by law that   and that is owned by the state without first obtaining all necessary easements, leases, or permits from the commission that  authorize the construction, design, placement, maintenance, ownership, use, or possession of the structure or facility  have been obtained  . (b)  A   Except as provided in subdivisions (a) and (b) of Section 6224.5, a  person, other than a telegraph or telephone corporation acting pursuant to Section 7901 of the Public Utilities Code or a franchised cable television corporation, as defined in Section 216.4 of the Public Utilities Code, and limited to their usage of poles, conduits, cables, wires, and associated appurtenances under either their ownership or the ownership of an electrical corporation, as defined in Section 218 of the Public Utilities Code, who violates subdivision (a) shall  either  be liable for a penalty of not more than one thousand dollars ($1,000) a day or  assessed a monthly use and occupancy fee   an amount  that is not more than 60 percent higher than the full fair market rental for each  day   month  that a violation occurs.  If the violation occurs during only part of a calendar month, the commission may prorate the penalty.  (c) In determining the appropriate penalty  or fee  described in subdivision (b), the commission shall consider all of the following factors: (1) The physical extent of the violation on the land under the commission's jurisdiction. (2) The degree of culpability of the violator. (3) The degree of cooperation of the violator  and whether the structure or facility is susceptible to removal or the violation is susceptible to resolution  . (4)  The   Any prior history of   violations of statutes or leases pertaining to lands under the commission's jurisdiction, including the  past history of the violator in taking all feasible steps or procedures necessary or appropriate to correct a violation.  (5) The violator's prior violations of statutes, rules, orders, or leases pertaining to lands under the commission's jurisdiction.   (6) The impact the violation causes on the environment to public access, the public trust, or other property interests under the commission's jurisdiction.  (7) Any matters relevant to a fair and just result.   (8) Any other factors determined by the commission to be relevant and consistent with the policy of the commission.   (5) The extent to which the violation causes environmental harm or impairs public access to trust lands.   (6) Any factor determined by the commission to be relevant to a fair and just result, and in the best interest of the state.  (d) The penalty  and fee  described in this section shall be imposed from the first day  of the violation to the day the violation ends   the commission issues an order to the day when the violation is cured  .  (e) If the penalty or fee described in this section is not paid within the time allowed under the final order, interest shall accrue at the rate prescribed by Section 6224. The final order may be recorded with the county clerk in any county of this state and shall have the same force, effect, and priority as a judgment lien.   (f)   (   e)  The commission may enjoin a person who violates subdivision (a) from continuing that violation.  (g)   (   f)  The commission may require a person who violates subdivision (a) to remove the structure or facility at the person's own expense. If the violator refuses to remove the structure or facility, or if the violator cannot be located, the commission may, at its own expense, remove the structure or facility from the land under the commission's jurisdiction. The commission may pursue whatever legal remedies are available to recover the removal costs from the violator  , including placing a lien on the assets of the violator  .  (h) The commission may elect to take ownership of the structure or facility as a fixture and may exercise the state's rights as owner of the structure or facility.   (i)   (   g)  For the purposes of this section, a structure or facility shall include, but is not limited to, buildings, boat houses, docks, piers,  revetment,   revetments,  fill, pilings, pipelines, groins, jetties, seawalls, breakwaters, and bulkheads.  (j) The remedies provided in this section shall be obtained by the commission through administrative action or by the Attorney General through civil action. If   (h)     If  the Attorney General prevails in a civil action  for a violation of this section, the state   necessary to enforce an order of the commission issued pursuant to this section, the Attorney General  shall be awarded attorney's fees and costs.  (k)   (   i)  The remedies provided by this section are in addition to and not in lieu of any other penalty or sanction provided by law.  (l) The commission may adopt regulations necessary or useful to carry out this section.  SEC. 2. Section 6224.4 is added to the Public Resources Code, to read: 6224.4. (a)  If the commission elects to pursue any of the remedies provided under Section 6224.3 through an administrative action, the commission shall first provide a 30-day notice to the person against whom it seeks to impose any of the remedies. The   Before the commission considers whether to pursue a remedy provided under Section 6224.3, the commission shall first provide a written notice to the person against whom the commission seeks to impose the penalty. The commission shall send the notice not less than 30 days before the date set for conducting a hearing pursuant to this section. A  notice shall include all of the following: (1) The date, time, and location of the commission hearing where the person may appear and be heard. (2) A statement of the authority and jurisdiction under which the hearing is to be held. (3) A reference to the particular sections of the statutes and rules involved. (4) A short and plain statement of the matters asserted or charged, including a description of the violation complained of with reasonable certainty as to its character and location. (5) A statement indicating whether and under what circumstances an order by default may be entered. (b) In lieu of personal service, service of notice may be made by registered mail and by posting a copy of the notice on the structure or facility that is in violation of subdivision (a) of Section 6224.3. (c) If the person fails to appear at the noticed hearing, the commission may  make a final   issue an  order. (d) A hearing  may   shall  be scheduled as a regular calendar item at a properly noticed commission meeting.  (e) A person against whom the commission has issued an order imposing a remedy provided in Section 6224.3 may seek review of the order pursuant to Section 1094.5 of the Code of Civil Procedure.  SEC. 3. Section 6224.5 is added to the Public Resources Code, to read: 6224.5.  (a)    If,  at the time this section is enacted   as of January 1, 2013  , a person is in violation of subdivision (a) of Section 6224.3, that person shall  have six months to remedy   not be subject to a penalty pursuant to that   section, if the person, on or before July 1, 2013, remedies  the violation or  have   submits to the commission  a completed lease application  with   , including the payment of  all fees and costs  submitted to the commission without being subject to a penalty or fee  . The remedy may include, but is not limited to, entering into an appropriate lease with the commission or adequately removing the structure or facility.  (b) A person shall not be subject to a penalty or order pursuant to Section 6224.3, if the person submits a notice to the commission that a structure or facility owned by that person is potentially in violation of subdivision (a) of Section 6224.3 and the person, within six months from the date the notice is received by the commission, remedies the violation or submits to the commission a completed lease application, including the payment of all fees and costs. This subdivision shall apply only if the potential violator submits a notice to the commission before the commission otherwise receives notice or information regarding the potential violation, or takes action against the violator.   (c) The commission may adopt regulations necessary or useful to carry out this section and Sections 6224.3 and 6224.4.