This bill expands and delineates factors that must be considered by a state agency in determining the amount of a fine or penalty. It also modifies existing law related to the award of fees and expenses to a prevailing party other than the state in civil actions or contested case proceedings brought by or against the state.
Section 1 expands the factors that must be considered by a state agency in cases where an agency has discretion over the amount of a fine. The law would include civil penalties, as well as fines. In addition, new factors to be considered would include fines or penalties that similarly situated persons have been assessed and the cooperation and responsiveness of the person. As part of its notice, demand, order, or complaint, a state agency would be required to include documentation of application of these factors in determining the amount of a proposed fine or penalty. Affirmative defenses that a party subject to a proposed fine or penalty may assert are specified. An exemption from some of these requirements is included for civil penalties accessed by the Campaign Finance and Public Disclosure Board or for violation of fair campaign practices laws.
Section 2 amends the law providing for the award of fees and expenses to small businesses in civil actions involving the state to include a definition of “demand.”
Section 3 amends the definition of “party” to increase the cap on annual revenues for an eligible business from $7 million to $30 million.
Section 4 expands the circumstances under which fees and expenses may be awarded to a party to include cases in which the demand by the agency is substantially in excess of the final decision of the administrative law judge or court and unreasonable when compared with that decision under the facts and circumstances of the case. This will not apply if the party has committed a willful violation of law or engaged in conduct that unduly and unreasonably protracted the final resolution of the matter or if special circumstances make an award unjust.
Section 5 includes a citation for the act.
Section 6 provides that the act is effective August 1, 2012, and applies to administrative or civil actions commenced on or after that date.