GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
HOUSE BILL 1714
RATIFIED BILL
AN ACT to direct the marine fisheries commission to adopt rules related to the suspension, revocation, and reissuance of licenses and to make conforming changes, as recommended by the joint legislative commission on seafood and aquaculture.
The General Assembly of North Carolina enacts:
SECTION 1. The Marine Fisheries Commission shall adopt rules pursuant to and consistent with G.S. 113-171, as amended by Section 2 of this act, and G.S. 143B-289.52 for the suspension, revocation, and reissuance of marine resources licenses and permits issued under Articles 14A, 14B, and 25A of Chapter 113 of the General Statutes. Rules adopted pursuant to this section shall not become effective prior to October 1, 2012. In adopting rules pursuant to this section, the Commission shall consider all of the following:
(1) Whether the rules should differentiate between minor and major violations.
(2) How to define minor and major violations.
(3) How service of revocation could be made more efficient.
(4) How the rules should treat violations related to recreational fishing licenses and permits.
(5) Whether violations related to littering or assault on a marine patrol inspector should be treated as grounds for suspension or revocation.
(6) Whether suspension and revocation provisions should be strengthened in cases of harvesting shellfish from polluted waters.
SECTION 2. G.S. 113-171 reads as rewritten:
"§ 113-171. Suspension, revocation, and reissuance of licenses.
(a)
Upon receipt of reliable notice that a person licensed under this Article Article,
Article 14B, or Article 25A of Chapter 113 of the General Statutes to take resources
under the jurisdiction of the Marine Fisheries Commission has had imposed
against the person a conviction of a criminal offense within the jurisdiction
of the Department under the provisions of this Subchapter or of rules of the
Commission adopted under the authority of this Subchapter, the Secretary must suspend
or revokesuspend, revoke, and reissue all licenses held by the
person in accordance with the terms of this section.section and rules
adopted by the Commission. Reliable notice includes information furnished
the Secretary in prosecution or other reports from inspectors. As used in this
section, a conviction includes a plea of guilty or nolo contendere, any other
termination of a criminal prosecution unfavorably to the defendant after jeopardy
has attached, or any substitute for criminal prosecution whereby the defendant
expressly or impliedly confesses the defendant's guilt. In particular,
procedures whereby bond forfeitures are accepted in lieu of proceeding to trial
and cases indefinitely continued upon arrest of judgment or prayer for judgment
continued are deemed convictions. The Secretary may act to suspend or revoke
licenses upon the basis of any conviction in which:
(1) No notice of appeal has been given;
(2) The time for appeal has expired without an appeal having been perfected; or
(3) The conviction is sustained on appeal. Where there is a new trial, finality of any subsequent conviction will be determined in the manner set out above.
(b)
The Secretary must initiate an administrative procedure designed to give the
Secretary systematic notice of all convictions of criminal offenses by
licensees covered by subsection (a) of this section above and keep a file of
all convictions reported. Upon receipt of notice of conviction, the
Secretary must determine whether it is a first, a second, a third, or a fourth
or subsequent conviction of some offense covered by subsection (a). In the case
of second convictions, the Secretary must suspend all licenses issued to the
licensee for a period of 10 days. In the case of third convictions, the
Secretary must suspend all licenses issued to the licensee for a period of 30
days. In the case of fourth or subsequent convictions, the Secretary must
revoke all licenses issued to the licensee. Where several convictions result
from a single transaction or occurrence, they are to be treated as a single
conviction so far as suspension or revocation of the licenses of any licensee
is concerned. Anyone convicted of taking or of knowingly possessing,
transporting, buying, selling, or offering to buy or sell oysters or clams from
areas closed because of suspected pollution will be deemed by the Secretary to
have been convicted of two separate offenses on different occasions for license
suspension or revocation purposes.
(c)
Where a license has been suspended or revoked, the former licensee is not
eligible to apply for reissuance of license or for any additional license
authorized in this Article during the suspension or revocation period. Licenses
must be returned to the licensee by the Secretary or the Secretary's agents at
the end of a period of suspension. Where there has been a revocation,
application for reissuance of license or for an additional license may not be
made until six months following the date of revocation. In such case of
revocation, the eligible former licensee must satisfy the Secretary that the
licensee will strive in the future to conduct the operations for which the
license is sought in accord with all applicable laws and rules. Upon the
application of an eligible former licensee after revocation, the Secretary, in
the Secretary's discretion, may issue one license sought but not another, as
deemed necessary to prevent the hazard of recurring violations of the law.
(d)
Upon receiving reliable information of a licensee's conviction of a second
or subsequent criminal offense covered by subsection (a) of this section, the
Secretary shall promptly cause the licensee to be personally served with
written notice of suspension or revocation, as the case may be. The written
notice may be served upon any responsible individual affiliated with the
corporation, partnership, or association where the licensee is not an
individual. The notice of suspension or revocation may be served by an
inspector or other agent of the Department, must state the ground upon which it
is based, and takes effect immediately upon personal service. The agent of the
Secretary making service shall then or subsequently, as may be feasible under
the circumstances, collect all license certificates and plates and other forms
or records relating to the license as directed by the Secretary. It is unlawful
for any licensee willfully to evade the personal service prescribed in this subsection.
(e) A licensee served with a notice of suspension or revocation may obtain an administrative review of the suspension or revocation by filing a petition for a contested case under G.S. 150B-23 within 20 days after receiving the notice. The only issue in the hearing shall be whether the licensee was convicted of a criminal offense for which a license must be suspended or revoked. A license remains suspended or revoked pending the final decision by the Secretary.
(f) If the Secretary refuses to reissue the license of or issue an additional license to an applicant whose license was revoked, the applicant may contest the decision by filing a petition for a contested case under G.S. 150B-23 within 20 days after the Secretary makes the decision. The Commission shall make the final agency decision in a contested case under this subsection. An applicant whose license is denied under this subsection may not reapply for the same license for at least six months.
(g)
The Commission may adopt rules to provide for the disclosure of the identity of
any individual or individuals in responsible positions of control respecting
operations of any licensee that is not an individual. For the purposes of this
section, individuals in responsible positions of control are deemed to be
individual licensees and subject to suspension and revocation requirements in
regard to any applications for license they may make - either as individuals or
as persons in responsible positions of control in any corporation, partnership,
or association. In the case of individual licensees, the individual applying
for a license or licensed under this Article Article, Article 14B, or
Article 25A of Chapter 113 of the General Statutes to take resources under the
jurisdiction of the Marine Fisheries Commission must be the real party in
interest.
(h) In determining whether a conviction is a second or subsequent offense under the provisions of this section, the Secretary may not consider convictions for:
(1) Offenses that occurred three years prior to the effective date of this Article; or
(2) Offenses that occurred more than three years prior to the time of the latest offense the conviction for which is in issue as a subsequent conviction."
SECTION 3. Section 2 of this act becomes effective October 1, 2012. The remainder of this act is effective when it becomes law.
In the General Assembly read three times and ratified this the 7th day of July, 2010.
_____________________________________
Walter H. Dalton
President of the Senate
_____________________________________
Joe Hackney
Speaker of the House of Representatives
_____________________________________
Beverly E. Perdue
Governor
Approved __________.m. this ______________ day of ___________________, 2010