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;
541-A:30