A BILL TO BE ENTITLED
AN ACT to establish a violations points system for the suspension, revocation, and reissuance of marine fishing licenses.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 113‑171 is repealed.
SECTION 2.  Article 14A of Chapter 113 of the General Statutes is amended by adding a new section to read:
"§ 113‑171.2.  Violation points system for the suspension, revocation, and reissuance of licenses.
(a)	Definitions. – As used in this section:
(1)	"Commercial fishing license" means any license used to engage in a commercial fishing operation. A fish dealer license issued under G.S. 113‑169.3 is not a commercial fishing license.
(2)	"Conviction" means a plea of guilty or nolo contendere, any other termination of a criminal prosecution unfavorable to the defendant after jeopardy has attached, any substitute for criminal prosecution whereby the defendant expressly or impliedly confesses the defendant's guilt, procedures whereby bond forfeitures are accepted in lieu of proceeding to trial, or cases indefinitely continued upon arrest of judgment or prayer for judgment continued.
(3)	"Fishery offense" means a criminal offense within the jurisdiction of the Division under the provisions of this Subchapter or of rules of the Commission adopted under the authority of this Subchapter.
(4)	"License" means all licenses, assignments, endorsements, registrations, and permits issued by the Division and the privilege to hold licenses, assignments, endorsements, registrations, and permits issued by the Division.
(5)	"Licensee" means a person who holds a license issued under this Article.
(6)	"Recreational fishing license" means a RCGL.
(7)	"Reliable notice" means information furnished to the Fisheries Director in prosecution or other reports from inspectors.
(b)	Duty to Revoke or Suspend Licenses. – Upon receipt of reliable notice that a licensee has had imposed against the licensee a conviction of a fisheries offense, the Fisheries Director shall suspend or revoke all licenses held by the licensee as provided in this section.
(c)	Notice of Convictions. – The Fisheries Director shall initiate an administrative procedure designed to give the Fisheries Director reliable notice of all convictions of fisheries offenses by licensees.
(d)	Assessment and Recordation of Points. – The Fisheries Director shall maintain a record of the convictions of fisheries offenses of each licensee. The Fisheries Director shall assess to the record of each licensee, as of the date of the commission of the fisheries offense, a number of points for each conviction as provided in the schedule set out in subsection (f) of this section. The Fisheries Director shall assess points for any conviction in which any of the following are the case:
(1)	No notice of appeal has been given.
(2)	The time for appeal has expired without an appeal having been perfected.
(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.
(e)	Designation of Fisheries Offenses and Multiple Offenses. – The Fisheries Director shall designate in the record whether a fisheries offense was related to commercial fishing activity or recreational fishing activity. The Fisheries Director shall designate in the record whether a fisheries offense was related to the harvest of fish or the sale of fish. These designations are within the sole discretion of the Fisheries Director. Where several convictions for fisheries offenses result from a single transaction or occurrence, the licensee shall be assessed for one fisheries offense only and if the fisheries offenses have different point values, the licensee shall be assessed for the fisheries offense having the greater point value.
(f)	Violation Points Schedule. – The Fisheries Director shall assess points for convictions of fisheries offenses as follows:
(1)	Felony				36 points.
(2)	Class A1 misdemeanor		12 points.
(3)	Class 1 misdemeanor		10 points.
(4)	Class 2 misdemeanor		6 points.
(5)	Class 3 misdemeanor		3 points.
(g)	General Revocation and Suspension Schedule. – Except as provided in subsections (h) and (i) of this section, the Fisheries Director shall suspend or revoke all of the licenses held by a licensee as follows:
(1)	The assessment of 18 to 25 points within a three-year period shall result in a 30-day suspension.
(2)	The assessment of 26 to 35 points within a three-year period shall result in a six-month suspension.
(3)	The assessment of 36 or more points within a three-year period shall result in a minimum one-year revocation. Where 36 or more points have been assessed within a three-year period, the Fisheries Director may, in the Director's sole discretion, revoke all of the licenses of a licensee for a specified period of time greater than one year or may permanently revoke all of the licenses of a licensee.
(h)	Limitation on Revocation and Suspension Based on Type of Fishery Offense. – The Fisheries Director shall suspend or revoke a recreational fishing license based only on points assessed for fisheries offenses related to recreational fishing activity. The Fisheries Director shall suspend or revoke a commercial fishing license based only on points assessed for fisheries offenses related to commercial fishing activity. The Fisheries Director shall suspend or revoke a SCFL or RSCFL based only on points assessed for fisheries offenses related to the harvest of fish. The Fisheries Director shall suspend or revoke a fish dealer license based only on points assessed for fisheries offenses related to the sale of fish, unless the holder of the fish dealer license was clearly in collusion or in a conspiracy with fishermen to commit fisheries offenses related to commercial fishing activity.
(i)	Specific Revocation and Suspension Requirements Based on Type of Fishery Offense. – Except where subsection (g) of this section would result in a longer suspension or revocation and as provided in subsection (h) of this section, the Fisheries Director shall suspend or revoke all of the licenses held by a licensee as follows:
(1)	The Fisheries Director shall suspend for 30 days all of the licenses of a licensee who has either of the following:
a.	Second conviction of refusal to stop for an inspector.
b.	Second conviction of refusal to obey or allow inspection by an officer.
(2)	The Fisheries Director shall suspend for six months all of the licenses of a licensee who has any of the following:
a.	Second conviction of taking fish or possession of commercial quantities without holding the proper commercial licenses.
b.	Second conviction of selling fish without the proper license.
c.	Second conviction for abandoning gear.
d.	First conviction of robbing, stealing, or willfully injuring gear.
(3)	The Fisheries Director shall revoke for one year all of the licenses of a licensee who has any of the following:
a.	First conviction of assault upon a governmental official or law enforcement officer as a result of the performance of duties related to marine fisheries.
b.	Second conviction of taking shellfish from a temporarily closed polluted area.
c.	Second conviction of using prohibited gear in a Primary Nursery Area.
d.	Second conviction of robbing, stealing, or willfully injuring gear.
e.	Third conviction for abandoning gear.
f.	Three suspensions in one, three-year period.
g.	Conviction of a criminal offense covered by subsection (a) of this section during a period of suspension.
(4)	The Fisheries Director shall revoke for two years all of the licenses of a licensee who has any of the following:
a.	Second conviction of assault upon a governmental official or law enforcement officer as a result of the performance of duties related to marine fisheries.
b.	First conviction of taking shellfish from a permanently closed area.
c.	Third conviction of taking shellfish from a temporarily closed polluted area.
d.	Third conviction of selling fish without the proper license.
e.	Fourth conviction of purchasing fish without a proper license for the sale of those fish or purchasing fish from a seller who does not posses a proper license for the sale of those fish.
f.	Third conviction for using prohibited gear in a Primary Nursery Area.
g.	Third conviction of robbing, stealing, or willfully injuring gear.
h.	Third conviction of refusal to obey or allow inspection by an officer.
i.	Third conviction of refusal to stop for an inspector.
j.	Third conviction of taking fish or possession of commercial quantities of fish without proper commercial licenses.
(5)	The Fisheries Director shall permanently revoke all of the licenses of a licensee who has any of the following:
a.	Third conviction of assault upon a governmental official or law enforcement officer as a result of the performance of duties related to marine fisheries.
b.	Second conviction of taking shellfish from a permanently closed area.
c.	Fourth conviction of taking shellfish from a temporarily closed polluted area.
d.	Fourth conviction of selling fish without the proper license.
e.	Fifth conviction of purchasing fish without a proper license for the sale of those fish or purchasing fish from a seller who does not posses a proper license for the sale of those fish.
f.	Fourth conviction of using prohibited gear in a Primary Nursery Area.
g.	Third conviction of robbing, stealing, or willfully injuring gear.
h.	Fourth conviction of refusal to obey or allow inspection by an officer.
i.	Fourth conviction of refusal to stop for an inspector.
j.	Fourth conviction for abandoning gear.
k.	Fourth conviction of taking fish or possession of commercial quantities without proper commercial licenses.
(j)	Conviction During Revocation. – Conviction of a fishery offense during a period of revocation shall extend the period of revocation by one year.
(k)	Assignment and Transfer. – Except as provided by rules adopted by the Commission pursuant to this subsection, any assignment or transfer made from the time of the offense that triggered a suspension or revocation to the end of the period of suspension or revocation is void. The Commission may adopt rules to allow the transfer of a suspended or revoked pound net permit.
(l)	Cancellation of Points. – Upon revocation of a license, the assessed points that resulted in the revocation shall be cancelled and removed from the former licensee's record. Upon suspension of a license, one‑half of the assessed points that resulted in the suspension, rounded down, shall be cancelled and removed from the former licensee's record.
(m)	Reissuance. – Where a commercial fishing license has been suspended or revoked, the former licensee is not eligible to apply for the reissuance of the license or to apply for the issuance of a different type of commercial fishing license during the period of suspension or revocation. Where a recreational fishing license has been suspended or revoked, the former licensee is not eligible to apply for the reissuance of the license or to apply for the issuance of a different type of recreational fishing license during the period of suspension or revocation. Where a license has been suspended, the Fisheries Director shall return the license to the former licensee at the end of a period of suspension. Where a commercial fishing license has been revoked for a specified period of time, the former licensee is not eligible to apply for the reissuance of the license or to apply for the issuance of a different type of commercial fishing license until six months following the end of the period of revocation. Where a recreational fishing license has been revoked for a specified period of time, the former licensee is not eligible to apply for the reissuance of the license or to apply for the issuance of a different type of recreational fishing license until six months following the end of the period of revocation. Where a commercial fishing license has been permanently revoked, the former licensee is not eligible to apply for the reissuance of the license or to apply for the issuance of a different type of commercial fishing license until at least six years following the end of the period of revocation. Where a recreational fishing license has been permanently revoked, the former licensee is not eligible to apply for the reissuance of the license or to apply for the issuance of a different type of recreational fishing license until at least six years following the end of the period of revocation. Where a license has been revoked, the former licensee shall satisfy the Fisheries Director 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 the Fisheries Director, in the Director's sole discretion, may issue one license sought but not another, as deemed necessary to prevent the hazard of recurring violations of the law.
(n)	Notice of Suspension or Revocation. – Upon a determination that suspension or revocation is required by subsection (g) or (i) of this section, the Fisheries Director shall promptly cause the licensee to be personally served with written notice of suspension or revocation. Where the licensee is not an individual, the written notice may be served upon any responsible individual affiliated with the corporation, partnership, or association. The notice of suspension or revocation may be served by an inspector or other agent of the Division, shall state the ground upon which it is based, and take effect within 10 days of service, as specified in the notice. The agent of the Fisheries Director making service shall collect all license certificates, license plates, and other forms or records relating to the license as directed by the Fisheries Director. It is unlawful for any licensee willfully to evade the personal service prescribed in this subsection.
(o)	Administrative Review for Suspension or Revocation. – 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 the criminal offense on which the suspension or revocation is based. A license remains suspended or revoked pending the final decision by the Fisheries Director.
(p)	Administrative Review for Reissuance. –  If the Fisheries Director refuses to reissue a 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 Fisheries Director 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.
(q)	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 subject to the suspension and revocation requirements of this section with 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 shall be the real party in interest."
SECTION 3.  G.S. 113‑277(a3) reads as rewritten:
"(a3)	As used in this Article, the term "conviction" has the same meaning assigned to it in G.S.  113‑171.2."
SECTION 4.  This act becomes effective December 1, 2004, and applies to offenses committed on or after that date.  Suspensions and revocations for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those suspensions and revocations.