CHAPTER Fis 1800 AGENCY ACTION AGAINST HOLDERS OF LICENSES,
REGISTRATIONS, AND PERMITS
REVISION NOTE #1:
Document
#9636-B, effective 1-12-10, readopted with amendments and renumbered Fis 214
titled “License Revocations and Suspensions” as Fis 1801, which contained only
Fis 1801.01. Fis 214 had contained only
Fis 214.01. Document #9636-B replaces
all prior filings for rules in Fis 214.01 and predecessor rules in this area.
The prior filings for former Fis
214.01 or predecessor rules included the following documents:
#4900, effective 8-3-90 (as Fis
1217.01)
#6289, INTERIM, effective
7-20-96,EXPIRED 11-17-96 (as Fis 1217.01)
#6435, effective 1-22-97 (as Fis
1217.01)
#6843, effective 8-29-98 (as Fis
1217.01)
#8673, INTERIM, effective 7-6-06,
EXPIRED 1-2-07 (as Fis 1205.01)
#9541, INTERIM, effective 9-10-09
(as Fis 214.01)
REVISION NOTE #2:
Document #12562, effective 6-28-18,
effectively readopted with amendments Chapter Fis 1800, formerly titled
“License Revocations and Suspensions” and now titled “Agency Action Against
Holders of Licenses, Registrations, and Permits.” Specifically, Document #12562 adopted a new
Part Fis 1801 titled “Definitions”.
Document #12562 also readopted with amendments and
renumbered the former Fis 1801.01 titled “License Revocations and Suspensions”
as Fis 1802.01(a) through (e) and readopted with amendment the former Fis
1502.03 titled “Periods of Suspension” from Chapter Fis 1500 on OHRVs and
snowmobiles and renumbered Fis 1502.03 as Fis 1802.01(f) and (g), with Fis 1802.01
now titled “Actions Against Licensees, Registrants, and Permit Holders.” Document #12562 readopted with amendment and
numbered former Fis 1801.02 as Fis 1802.02.
Document #12562 also readopted with amendment and
renumbered former Fis 207.06 titled “Order of Revocation or Suspension” in
Chapter 200 on rules of practice and procedure and renumbered Fis 207.06 as
Part Fis 1803 titled “Modification of Action by the Executive Director.” Document #12562 also adopted Fis 1803.03
titled “Further Appeal.”
Document #12562 replaces all prior
filings for rules in the former Fis 1800, Fis 1502.03, and Fis 207.06. The prior filings for these rules include the
following documents:
Fis
1800 (since Document #9636-B)
Document #10709, effective 1-1-15
Fis
1502.03
#8518, effective 12-17-05
#9661, effective 2-25-10
Fis
207.06
#7382, effective 10-25-00, EXPIRED
10-25-08
#9332, INTERIM, effective 11-27-08,
EXPIRED 5-26-09
#9636-A,
effective 1-12-10
The rules in the former Fis 1800 as
last filed under Document #9636-B, effective 1-12-18, did not expire on
1-12-18, and the former Fis 1502.03 did not expire on 2-25-18, but were
extended pursuant to RSA 541-A:14-a until replaced by the rules in Document
#12562, effective 6-28-18. The former
Fis 207.06 did not expire as a practice and procedure rule pursuant to RSA
541-A:17, II.
PART Fis 1801
DEFINITIONS
Fis
1801.01 “Conviction” means a
determination that a person has violated or failed to comply with the law in a
court of original jurisdiction or an administrative proceeding which has not
been annulled or vacated, an unvacated forfeiture of bail or collateral
deposited to secure the person's appearance in court, a plea of guilty or nolo
contendere accepted by a court, the payment of a fine or court costs, or the
violation of a condition of release without bail, regardless of whether the
penalty is rebated, suspended or otherwise affected by probation.
Source. (See Revision Note #1 and Revision Note #2 at
chapter heading for Fis 1800) #12562, eff 6-28-18
Fis
1801.02 “Default” means that a person
upon whom civil or criminal process has been duly served has not appeared at
the court or administrative proceeding to which the same is returnable, which
failure has been recorded, whether or not judgment or a finding has been
rendered against him or her for the relief sought.
Source. (See Revision Note #1 and Revision Note #2 at
chapter heading for Fis 1800) #12562, eff 6-28-18
Fis
1801.03 “Suspension” means “suspension”
as defined in RSA 207:1, XXVI-a.
Source. (See Revision Note #1 and Revision Note #2 at
chapter heading for Fis 1800) #12562, eff 6-28-18
PART 1802 ACTIONS AGAINST LICENSEES, REGISTRANTS, AND
PERMIT HOLDERS
Fis
1802.01 Action Upon Court
Notification.
(a) The executive director or his designee shall
receive, pursuant to RSA 206:34 and RSA 214:18-b records from any court of the
disposition of charges alleging a violation of a provision of NH RSA Title
XVIII, RSA 163-B, RSA 635:2, any rule of the department, or a similar offense in
any other state.
(b)
Pursuant to RSA 206:10-a, records of
court dispositions shall be maintained by the department for the following
periods of time:
(1) Violation
level offenses provided that no subsequent conviction of the same person could
result in an enhanced penalty, 7 years from the date of the final disposition
of the matter;
(2) Violation
level offenses for which a subsequent conviction of the same person could
result in an enhanced penalty, misdemeanor and felony level offenses, permanent
retention.
(c)
Upon notice of a court conviction or
that the alleged offender is in default of court process, the executive
director shall suspend the person’s license, registration, or permit issued by
the department.
(d)
Pursuant to RSA 214:19-a, an appeal of a
conviction through a court process shall not stay the entry of a suspension of
license under this rule.
(e)
The applicable license or permit shall
be suspended for a period of one year measured from the date of court
conviction unless:
(1) A different period is mandated by
statute;
(2) The period is modified by the executive
director pursuant to Fis 1803; or
(3) The offense is described in Table 1800.1,
with a different period:
Table 1800.1 Periods of Suspension
Offense
|
Period
of Suspension |
Hunting without the applicable hunting
licenses as required in RSA 208:5, RSA 208:5-a, RSA 208:24, II, RSA 214:1,
RSA 214:1-b, RSA 214:1-c, and RSA 214:1-d. |
None |
Fishing without a freshwater or
recreational saltwater license. |
None |
Clamming without a license. |
None |
Oystering without a license. |
None |
Landing of marine species without a
commercial saltwater license. |
None |
Wholesale trade of marine species without a
wholesale marine license. |
None |
Retail sale of lobster without a license. |
None |
Trapping without a license. |
None |
Taking deer without purchasing a special
permit contrary to Fis 301.031 for units L or M, Governor’s Island, or
statewide archery. |
None |
Taking deer without purchasing a Long
Island deer permit as specified in Fis 301.032. |
None |
No name or address on arrow or bolt
contrary to Fis 301.041 (c)(4) |
None |
Placing of a tree stand for hunting without
a landowner permit contrary to RSA 207:36-a. |
None |
Improper use of a deer permit contrary to
RSA 208:5-b or Fis 301.031 and Fis 301.032. |
None |
Violations of National Migratory Bird
Harvest Information Program (HIP) requirements contrary to Fis 302.072. |
None |
Unsigned federal waterfowl stamp contrary
to RSA 209:6. |
None |
Taking moose during the closed season or exceeding
the bag limit. |
2-year suspension |
Illegal night hunting contrary to RSA
208:8. |
3-year suspension |
No name on a bob house, contrary to RSA
211:17-a , I. |
30-day suspension |
Violation of RSA 211:17-a II or III,
relative to bob houses. |
One-year suspension |
Taking an overlimit of freshwater or
recreational saltwater fish. |
One-year suspension |
Violation of marine laws or licenses when
holding a charter or party boat license. |
One-year suspension of charter/party boat
license |
All freshwater or recreational saltwater
fishing violations except as follows: a. No suspension for unattended lines; b. No suspension for no reflectors on bob
house as required in Fis 402.10; and c. No suspension for use of lead sinkers
while fishing as required in RSA 211:13-b. |
6-month suspension |
Trespass, only for the hunting, fishing,
trapping, or guiding activity engaged in at the time of the offense. |
One-year suspension |
Littering, only for the hunting, fishing,
trapping, charter or party boat, or guiding activity engaged in at the time
of the offense. |
One-year suspension |
Disobeying or assaulting a conservation
officer contrary to RSA 207:47 or RSA 211:18-a. |
One-year concurrent suspension of all
licenses issued by the department |
Clam violation: up to 5 quart over limit
for first offense. |
No suspension |
Clam violation: up to a 5 quart over limit,
for second offense. |
One-year suspension |
Clam violation: over 5 quarts overlimit. |
One-year suspension |
Oyster over limit, contrary to Fis
605.01(d). |
One-year suspension |
Illegal method of taking oysters, or taking
oysters after sunset contrary to Fis 605.01(b). |
One-year suspension |
Possession of 2 or more short or oversized
lobsters contrary to RSA 211:27 and Fis 602.12 . |
One-year suspension |
Possession of 2 or more egg bearing or
scrubbed lobsters contrary to RSA 211:26. |
One year suspension |
Possession of 2 or more V-notched lobsters
contrary to Fis 602.11. |
One year suspension |
A combination of two or more lobster
violations of RSA 211:26, RSA 211:27 or Fis 602.11. |
One-year suspension |
Lobster trap plugged escape vent contrary
to Fis 602.10(b). |
One-year suspension |
Lobster trap tag violation contrary to Fis
602.16. |
One-year suspension |
Failure to tend traps or pots every 30 days
contrary to Fis 602.09(d). |
None for first offense, One-year suspension
for second offense |
Commercial marine species violations by
holder of commercial saltwater, lobster landing, or wholesale marine species
license. |
One-year suspension of commercial saltwater
or wholesale marine species license |
(f) Unless otherwise
mandated by statute, or modified by the executive director pursuant to Fis
1803, a conviction for an OHRV or snowmobile violation shall be subject to the
following suspension actions:
(1) In
accordance with RSA 215-A: 29, V and 215-C:49, VI the violator’s OHRV or
snowmobile training program certificate shall be suspended:
a. For
a first offense, 30 days;
b. For
a second offense, 180 days; and
c. For
a third and subsequent offenses, one year suspension.
(2)
For violation of RSA 215-A:19, IX or 215-C:34, VIII, the violator’s
registration of any machine shall be suspended until such time as the person
has successfully completed an approved OHRV or snowmobile safety education
class, but in no circumstance for less than 180 days.
(g)
For the purposes of this section, and
unless otherwise mandated by statute or modified by the executive director
pursuant to Fis 1803, the period of license suspension shall commence on the
date of conviction in the applicable court, and end on the same day in the
month which is 6, 12, 24, 36, or 60 months later, inclusive of both dates,
pursuant to RSA 207:1, XIV.
Source. (See Revision Note #1 and Revision Note #2 at
chapter heading for Fis 1800) #12562, eff 6-28-18
Fis
1802.02 Procedure to Maintain
Eligibility for Certain Lobster and Crab Licenses After Suspension.
(a) An individual whose commercial or limited
commercial lobster and crab license is suspended and who desires to maintain
eligibility to purchase a commercial or limited commercial lobster and crab
license for the year following the end of the license suspension shall:
(1)
Purchase a commercial or limited commercial lobster and crab license
after the end of the suspension and prior to December 31st of the calendar
year; or
(2) By
June 30th of the calendar year in which the individual’s license
suspension ends, physically deliver to the department a notarized affidavit
indicating the individual’s intent to remain eligible to purchase such license
in the following year at the Region 3 office, located at 225 Main Street,
Durham NH 03824.
Source. (See Revision Note #1 and Revision Note #2 at
chapter heading for Fis 1800) #12562, eff 6-28-18
PART Fis 1803
MODIFICATION OF ACTION BY THE EXECUTIVE DIRECTOR
Fis
1803.01 Notice of Suspension of License,
Permit, or Registration.
(a) Pursuant to RSA 206:34, RSA 214:18-b, and RSA
214:19, upon notification by a court that a person has been convicted of an
offense described in NH RSA Title XVIII, RSA 163-B, RSA 635:2, any rule of the
department, or a similar offense in any other state, or is in default of court
process, the executive director shall notify the offender in writing that the
relevant license, permit, or registration shall be suspended for one year from
the date of the conviction, unless:
(1) A
different period is specified in the statute describing the offense; or
(2) Action
is taken in accordance with Fis 1803.02.
(b)
A notification letter shall be mailed by the department via ordinary mail to
the party as a confirmation of the suspension action.
(c) The notification letter shall contain the
following information:
(1)
The date the notice was issued;
(2)
The person’s name;
(3)
The person’s last known address as received from the court;
(4)
The license, permit, or registration suspended;
(5)
The date the suspension becomes effective;
(6)
The date the suspension period concludes;
(7)
Notice of the additional penalties that could be imposed for a violation
of the terms of the suspension as set forth in RSA 214:21 and 21-a; and
(8)
Notice of the person’s opportunity to request an administrative hearing
to review or contest the action taken by the department.
Source. (See Revision Note #1 and Revision Note #2 at
chapter heading for Fis 1800) #12562, eff 6-28-18
Fis
1803.02 Request for a Hearing.
(a)
Any person who is aggrieved by the
notice of suspension of a license, registration, or permit under these
rules may request an administrative hearing within 30 days of receipt of
written notice of the action taken by letter addressed to the executive
director at 11 Hazen Drive, Concord, NH 03301, containing the following
information:
(1) The
name of the holder of the license, registration, or permit which has been
suspended or revoked;
(2) A
concise description of the reason or reasons why the period of suspension
should be altered;
(3) Whether the person desires to have the
arresting law enforcement officer present at the hearing;
(4) Whether
the person desires the hearing to be conducted:
a. In
person at the headquarters office at 11 Hazen Drive in Concord; or
b. Based
solely upon a review of the letter requesting relief and the written statements
of the arresting officer;
(5) A
current residential address; and
(6) A
current telephone number and email address, if available.
(b)
Persons who fail to file a letter
requesting a hearing within the 30-day time period shall be deemed to have
waived their right to a hearing unless upon petition the executive director
finds that the period to file should be extended as a result of:
(1) A
showing that the person did not in fact receive the notice of the suspension
action and notice of right to request a hearing sent pursuant to RSA
1803.01(c); or
(2) A
showing of excusable neglect, resulting from extended travel, a health problem,
or other condition that resulted in the person not receiving actual notice of
the suspension action prior to the expiration of the appeal period.
(c)
When a person requests a hearing
following a conviction in a court:
(1) The
person shall be deemed guilty of the underlying violation;
(2) The
facts as found by the court shall be deemed to be established for the purposes
of review; and
(3) The
only issue for the executive director to review is the length of time that a
license, registration, or permit should be suspended.
(d)
No action of suspension shall exceed the
maximum time allowed under the statute that permitted such an action to be
taken.
(e) At the hearing, the executive director shall
consider the following factors in determining the length of time that a
license, registration or permit suspension shall be imposed:
(1) Whether
the full term of the suspension as imposed is necessary to protect the fish and
wildlife resources of the state;
(2) Whether a reduction in the term of a
suspension will provide fundamental fairness to the holder of the license,
registration, or permit, yet still serve to prevent a future violation;
(3) The specific facts and circumstances of the
violation;
(4) Any
conditions placed upon the defendant by the convicting court, beyond the duty
to pay a fine;
(5) The
length of time between the date of the violation and the entry of judgment by
the court;
(6) Any
recommendation of the investigating officer as to whether the offense was
committed knowingly or purposely; and
(7) The licensee's history of fish and game
violations, and any sanctions that had previously been imposed upon the
licensee.
Source. (See Revision Note #1 and Revision Note #2 at
chapter heading for Fis 1800) #12562, eff 6-28-18
Fis
1803.03 Further Appeal. Any person aggrieved may seek further review
in accordance with RSA 541of a decision by the executive director to:
(a)
Grant or deny an administrative hearing
to a person following entry of an order of suspension of a license, permit or
registration; or
(b)
Reduce, refuse to reduce, or expand the
term of a suspension of a license, permit, or registration issued by the
department.
Source. (See Revision Note #1 and Revision Note #2 at
chapter heading for Fis 1800) #12562, eff 6-28-18
APPENDIX
Rule(s) |
State Statute (RSA) |
Federal Statute |
Federal Regulation |
|
|
|
|
Fis 1801.01 |
RSA 206:10, I |
|
|
Fis 1801.02 |
RSA 211:18 |
|
|
|
|
|
|
Fis 1802.01 |
RSA 214:19, I |
|
|
Fis 1802.02 |
RSA 211:18, III(e)(3) |
|
|
Fis 1803.01-1803.03 |
RSA 214:22, 214:19-a; |
|
|