California Code of Regulations › Title 14 - Natural Resources › Division 5 - San Francisco Bay Conservation and Development Commission › Appendices › Appendix I - Statement of Defense Form

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
BY ____________________, 20___: (1) COMPLETE THIS FORM (OR A
				  DOCUMENT PROVIDING THE INFORMATION REQUESTED BY THIS FORM), (2) INCLUDE WITH
				  THE COMPLETED FORM ALL DOCUMENTS, DECLARATIONS, UNDER PENALTY OF PERJURY, AND
				  OTHER EVIDENCE YOU WANT PLACED IN THE RECORD AND TO BE CONSIDERED BY THE
				  COMMISSION, (3) LIST ANY WITNESSES WHOSE DECLARATION IS PART OF THE STAFF CASE
				  AS IDENTIFIED IN THE VIOLATION REPORT/COMPLAINT FOR ADMINISTRATIVE CIVIL
				  LIABILITY THAT YOU WISH TO CROSS-EXAMINE, THE AREA OF KNOWLEDGE ABOUT WHICH YOU
				  WANT TO CROSS-EXAMINE THE WITNESS, AND THE INFORMATION YOU HOPE TO ELICIT BY
				  CROSS-EXAMINATION, AND (4) RETURN THE COMPLETED FORM AND ALL INCLUDED MATERIALS
				  TO THE SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION STAFF. FAILURE
				  TO DO SO, OR TO SUBMIT A WRITTEN EXTENSION REQUEST (AS DISCUSSED BELOW), MEANS
				  THAT YOU WILL WAIVE THE OPPORTUNITY TO RAISE ANY DEFENSES OR MITIGATING FACTORS
				  OR TO INTRODUCE ANY EVIDENCE AND THAT THE ENFORCEMENT COMMITTEE OR COMMISSION
				  CAN REFUSE TO CONSIDER ANY STATEMENTS AND EVIDENCE THAT YOU SUBMIT AT A LATER
				  DATE WHEN THE ENFORCEMENT COMMITTEE OR COMMISSION HEARS THIS MATTER.
ANY STATEMENTS THAT YOU MAKE ON THIS FORM (OR IN A DOCUMENT
				  PROVIDING THE INFORMATION REQUESTED BY THIS FORM) WILL BECOME PART OF THE
				  ENFORCEMENT RECORD AND MAY BE USED AGAINST YOU.
YOU MAY WISH TO CONSULT WITH OR RETAIN AN ATTORNEY BEFORE YOU
				  COMPLETE THIS FORM OR OTHERWISE CONTACT THE COMMISSION ENFORCEMENT
				  STAFF.
This form is enclosed with a violation report/complaint for
				  administrative civil liability. The violation report/complaint indicates that
				  you may be responsible for or in some way involved in either a violation of the
				  Commission's laws, a Commission permit, or a Commission cease and desist order.
				  The violation report/complaint summarizes what the possible violation involves,
				  who may be responsible for it, where and when it occurred, if the Commission
				  staff is proposing any administrative civil penalty and, if so, how much, and
				  other pertinent information concerning the possible violation.
This form requires you to respond to the alleged facts
				  contained in the violation report/complaint, to raise any defenses that you
				  believe apply, and to inform the staff of all facts that you believe may
				  exonerate you of any legal responsibility for the possible violation or may
				  mitigate your responsibility. This form also requires you to enclose with the
				  completed statement of defense form copies of all written documents, such as
				  letters, photographs, maps, drawings, etc. and written declarations under
				  penalty of perjury that you want the Commission to consider as part of this
				  enforcement hearing. Failure to raise a defense or mitigating factor in or to
				  submit evidence with your response to the violation report/complaint will waive
				  your right to raise such defense or mitigating factor or to submit such
				  evidence at the enforcement hearing on this matter. This form also requires you
				  to identify by name any person whose declaration under penalty of perjury was
				  submitted by staff with the violation report/complaint whom you may want to
				  cross-examine at the enforcement hearing on this matter, the area of knowledge
				  that you want to cover in the cross-examination, the nature of the testimony
				  that you hope to elicit, and the reasons that you believe other means of
				  producing this evidence are unsatisfactory. Finally, if the staff is only
				  proposing a civil penalty (
i.e.
, issuance of either a cease
				  and desist order or a permit revocation order is not proposed), this form
				  allows you to pay the proposed civil penalty without contesting the matter if
				  you chose to do so, subject to notification of the amount by the
				  Commission.
IF YOU WANT TO CROSS-EXAMINE ANY PERSON WHOSE DECLARATION
				  UNDER PENALTY OF PERJURY STAFF HAS SUBMITTED WITH THE VIOLATION
				  REPORT/COMPLAINT, YOU MUST COMPLETE PARAGRAPH EIGHT TO THIS STATEMENT OF
				  DEFENSE FORM.
Complete this form as fully and accurately as you can and
				  return an original and one copy of the completed form and an original and one
				  copy of all documents that you want to be made part of the record of the
				  enforcement proceeding, no later than 35 days after this form was mailed to
				  you, to the Commission's enforcement staff at the following address:
SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT
				  COMMISSION
375 BEALE STREET, SUITE 510
SAN FRANCISCO, CA 94105
If you believe that you have good cause for not being able to
				  complete this form and submit all written documents and any declarations under
				  penalty of perjury that you want the Commission to consider within the required
				  35 days of its mailing, you may, within that time, submit a written extension
				  request explaining why you need additional time to respond. If the Executive
				  Director has issued a combined violation report and complaint for
				  administrative liability, or only a compliant for administrative liability,
				  your extension request shall include a waiver of and consent to extend the
				  60-day time limit for a hearing on the complaint under Government Code Section
				  66641.6(b).
If the violation report/complaint that accompanied this
				  statement of defense form included a proposed administrative civil penalty, you
				  may resolve the civil penalty aspect of the alleged violation by simply
				  providing to the staff a certified cashier's check in the amount of the
				  proposed civil penalty within the 35-day time period. If you choose to follow
				  this alternative, the Executive Director will cash your check and place a brief
				  summary of the violation and proposed administrative civil penalty along with a
				  notation that you are choosing to pay the civil penalty rather than contesting
				  it on an administrative permit listing. (See 14 C.C.R. §
									11322(g).) If no
				  Commissioner objects to the amount of the administrative civil penalty, your
				  payment will resolve the civil penalty portion of the alleged violation. If a
				  Commissioner objects to the amount of the proposed administrative civil
				  penalty, the Commission shall determine by a majority of those present and
				  voting whether to accept or object to the proposed civil penalty. If such a
				  majority votes to accept the proposed civil penalty, your payment will resolve
				  the civil penalty portion of the alleged violation. If such a majority objects
				  to the proposed civil penalty, the Commission shall direct the staff to return
				  the money paid to you and shall direct you to file your completed statement of
				  defense form and all supporting documents within 35 days of the Commission's
				  actions. Of course, you also have the opportunity of contesting the fine from
				  the outset by completing this form and filing it and all supporting documents
				  within 35 days of its having been mailed to you.
If you have any questions, please contact
				  ______________________________ of the Commission Enforcement Staff as soon as
				  possible at telephone number 415-352-3600.
1. Facts or allegations contained in the violation
				  report/complaint that you admit (with specific reference to the paragraph
				  number in the violation report/complaint):
___________________________
___________________________
___________________________
___________________________
___________________________
2. Facts or allegations contained in the violation
				  report/complaint that you deny (with specific reference to paragraph number in
				  the violation report/complaint):
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
3. Facts or allegations contained in the violation
				  report/complaint of which you have no personal knowledge (with specific
				  reference to paragraph number in the violation report/complaint):
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
4. Other facts which may exonerate or mitigate your possible
				  responsibility or otherwise explain your relationship to the possible violation
				  (be as specific as you can; if you have or know of any documents, photographs,
				  maps, letters, or other evidence that you believe are relevant, please identify
				  such evidence by name, date, type, and any other identifying information and
				  provide the original or a copy if you can):
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
5. If the Executive Director is proposing that the Commission
				  impose an administrative civil penalty as part of this enforcement proceeding
				  and if you would be unable to pay the proposed penalty or paying the proposed
				  penalty would have a substantial adverse effect on your ability to continue in
				  business, provide factual information establishing such inability to pay or
				  such adverse effect. Submit all relevant supporting documentation which may
				  include but not be limited to audited financial statements and reports (or if
				  not audited, then those that are the basis of tax returns or regulatory
				  filings), balance sheets, profit and loss statements, statements of net worth,
				  annual budgets, bond prospectuses, and tax returns including supporting forms
				  and schedules as may be applicable. Before submitting this information redact
				  (cover or blackout) all personal information including your social security or
				  taxpayer identification number, driver's license/state identification number,
				  financial account number and any other private, non-public personal information
				  including a residential address, personal telephone numbers, or personal email
				  address:
6. Any other information, statement, etc. that you want to
				  make:
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
7. Documents, exhibits, declarations under penalty of perjury
				  or other materials that you have attached to or enclosed with this statement to
				  support your answers or that you want to be made part of the administrative
				  record for this enforcement proceeding. (Please list in chronological order by
				  date, author, and title and enclose a copy with this completed form):
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
8. Name of any person whose declaration under penalty of
				  perjury was submitted with the violation report/complaint as being part of the
				  staff's case who the respondent wants to cross-examine, identify all documents
				  referred to in such person's declaration about which you want to cross-examine
				  the person, the area or areas of information about which the respondent wants
				  to cross-examine the person, and the information that the respondent hopes to
				  elicit in cross-examination, and state the reason(s) why some other method of
				  proving this information is unsatisfactory.
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
1. New
				  Appendix filed 5-18-87; operative 6-17-87 (Register 87, No. 30.)
2.
				  Amendment filed 10-11-89; operatvie 11-10-89 (Register 89, No.
				  43.)
3. Change without regulatory effect relocating Appendix I from
				  chapter 17 to chapter 24 filed 12-31-2020 pursuant to section
				  100, title 1, California Code of
				  Regulations (Register 2021, No. 1). (OAL review extended 60 calendar days
				  pursuant to Executive Order N-40-20.)
4. Amendment of appendix and
				  new NOTE filed 6-7-2022; operative 10-1-2022 (Register 2022, No.
				  23).
Note: Authority cited: Section
					 66632(f),
					 Government Code; and Section
					 29201(e),
					 Public Resources Code. Reference: Sections
					 66638,
					 66641.5(e)
					 and
					 66641.6,
					 Government Code; and Sections
					 29601,
					 29610
					 and
					 29611,
					 Public Resources Code.