AN ACT Relating to food fish and shellfish; amending RCW 75.10.030, 75.10.110, 75.10.120, 75.10.130, and 75.10.140; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 75.36.010, chapter 12, Laws of 1955 as amended by section 34, chapter 46, Laws of 1983 1st ex. sess. and RCW 75.10.030 are each amended to read as follows:

(1) Fisheries patrol officers and ex officio fisheries patrol officers may seize without warrant food fish or shellfish they have reason to believe have been taken, killed, transported, or possessed in violation of this title or rule of the director and may seize without warrant a boat, vehicle, gear, appliance, or other article they have reason to believe is held with intent to violate or has been used in violation of this title or rule of the director. The articles seized shall be subject to forfeiture to the state, regardless of ownership. Articles seized may be recovered by their owner by depositing into court a cash bond equal to the value of the seized articles but not more than ((~~five~~)) twenty-five thousand dollars. The cash bond is subject to forfeiture to the state in lieu of the seized article.

(2) (a) In the event of a seizure of an article under subsection (1) of this section, proceedings for forfeiture shall be deemed commenced by the seizure. The seizing authority shall serve notice within fifteen days following the seizure on the owner of the property seized and on any person having any known right or interest in the property seized. Notice may be served by any method authorized by law or court rule, including service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen-day period following the seizure.

(b) If no person notifies the department in writing of the person's claim of ownership or right to possession of articles seized under subsection (1) of this section within forty-five days of the seizure, the articles shall be deemed forfeited.

(c) If any person notifies the department in writing within forty-five days of the seizure, the person shall be afforded an opportunity to be heard as to the claim or right. The hearing shall be before the director or the director's designee, or before an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the articles seized is more than five thousand dollars. The department hearing and any subsequent appeal shall be under Title 34 RCW. The burden of producing evidence shall be upon the person claiming to be the lawful owner or person claiming lawful right of possession of the articles seized. The department shall promptly return the seized articles to the claimant upon a determination by the director or designee, an administrative law judge, or a court that the claimant is the present lawful owner or is lawfully entitled to possession of the articles seized, and that the seized articles were improperly seized.

(d) (i) No conveyance, including vessels, vehicles, or aircraft, is subject to forfeiture under this section by reason of any act or omission established by the owner of the conveyance to have been committed or omitted without the owner's knowledge or consent, except that licensing an additional operator of a vessel by the owner of the vessel shall be deemed knowledge and consent by such owner to all fishing activities conducted by the additional operator.

(ii) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge nor consented to the act or omission.

(e) When seized property is forfeited under this section the department may retain it for official use unless the property is required to be destroyed, or upon application by any law enforcement agency of the state, release such property to such agency for the use of enforcing Title 75 RCW, or sell such property, and deposit the proceeds to the state general fund, as provided for in RCW 75.08.230.

Sec. 2. Section 75.08.260, chapter 12, Laws of 1955 as last amended by section 16, chapter 380, Laws of 1987 and RCW 75.10.110 are each amended to read as follows:

(1) Unless otherwise provided for in this title, a person who violates this title or rules of the director or who aids or abets in the violation is guilty of a gross misdemeanor, and ((upon a conviction thereof shall be punished by imprisonment in the county jail of the county in which the offense is committed for not less than thirty days or more than one year, or by a fine of not less than twenty-five dollars or more than one thousand dollars, or by both such fine and imprisonment)) is subject to the penalties for a gross misdemeanor under RCW 9A.20.021.

(2) Any person taking or knowingly possessing food fish or shellfish taken in violation of any of the provisions of the fisheries code or any of the rules of the director made pursuant thereto which have a wholesale market value greater than two hundred fifty dollars, or which in amount exceeds three times the daily sport bag limit for food fish or shellfish taken from the area in which such food fish or shellfish were taken shall be guilty of a class C felony and is subject to the penalties for a class C felony under RCW 9A.20.021. Superior courts have jurisdiction over felonies committed in violation of this title.

(3) Food fish or shellfish involved in the violations set out in subsections (1) and (2) of this section shall be forfeited to the state. The court may forfeit seized articles involved in the violation.

((~~(2)~~)) (4) The director may specify by rule, when not inconsistent with applicable statutes, that violation of a specific rule is an infraction under chapter 7.84 RCW. ((A person taking or possessing salmon in violation of this title or rules of the director shall be punished by a fine in an amount not more than five thousand dollars if the salmon involved in the violation have a market value greater than two hundred fifty dollars. This fine is in addition to the punishment resulting under subsection (1) of this section.))

Sec. 3. Section 75.28.380, chapter 12, Laws of 1955 as last amended by section 43, chapter 46, Laws of 1983 1st ex. sess. and RCW 75.10.120 are each amended to read as follows:

(1) Upon conviction of a person for a violation of this title or rule of the director, in addition to the penalty imposed by law, the court may forfeit the person's license. ((~~(2)~~)) The court shall forfeit the license: (a) Upon conviction for a violation of this title or rule of the director prescribing the length, depth, or construction of fishing gear, or (b) upon two or more convictions in a five-year period of any violation of this title or rule of the director. The license shall remain forfeited pending appeal.

(2) The director may prohibit, for one year, the issuance of ((a)) all commercial fishing licenses to a person convicted of two or more violations of this title or rule of the director in a five-year period or prescribe the conditions under which the license may be issued. For purposes of this section, the term "conviction" means a final conviction in a state or municipal court. An unvacated forfeiture of bail or collateral deposited to secure the defendant's appearance in court, the payment of a fine, a plea of guilty, or a finding of guilt on a violation of this title is equivalent to a conviction regardless of whether the imposition of sentence is deferred or the penalty is suspended. Conviction of an additional operator of a vessel shall be deemed to be a conviction of the vessel license holder for purposes of prohibition of issuance of a license or prescribing conditions under which the license may be issued.

Sec. 4. Section 3, chapter 99, Laws of 1979 ex. sess. as amended by section 44, chapter 46, Laws of 1983 1st ex. sess. and RCW 75.10.130 are each amended to read as follows:

Upon two or more convictions of a person in a five-year period for violating salmon fishing rules of the director which restrict fishing times or areas, the director shall deny all salmon fishing privileges and suspend all salmon fishing licenses of that person for one year. A person may not avoid this penalty by transferring a commercial salmon fishing license.

For the purposes of this section, the term "conviction" means a final conviction in a state or municipal court. An unvacated forfeiture of bail or collateral deposited to secure the defendant's appearance in court, the payment of a fine, a plea of guilty, or a finding of guilt on a violation of this title is equivalent to a conviction regardless of whether the imposition of sentence is deferred or the penalty is suspended. Conviction of an additional operator of a vessel shall be deemed to be a conviction of the vessel license holder for purposes of denial of salmon fishing privileges and suspension of salmon fishing licenses under this section.

Sec. 5. Section 7, chapter 141, Laws of 1979 ex. sess. as last amended by section 4, chapter 80, Laws of 1984 and RCW 75.10.140 are each amended to read as follows:

(1) In addition to the penalties prescribed in RCW 75.10.110 and 75.10.120, the director may revoke or refuse to renew geoduck diver licenses or geoduck tract licenses held by a person if:

(a) Within a five-year period that person is convicted or has an unvacated bail forfeiture for two or more violations of this title or rules of the director relating to geoduck licensing or harvesting; or

(b) The department of natural resources suspended or canceled the lease or harvesting agreement under RCW 79.96.080.

(2) ((~~When~~)) Any employee of a geoduck tract licensee ((~~permits a~~)) who commits a violation of this title or rules of the director relating to geoduck harvesting resulting in conviction or unvacated forfeiture of bail, or any person permitted by the licensee to harvest geoducks on ((~~that~~)) the licensee's tract((~~, each~~)) who commits a violation ((~~by that person~~)) of this title or rules of the director relating to geoduck licensing or harvesting resulting in: (a) Conviction or unvacated forfeiture of bail; or (b) suspension or cancellation of the lease or harvesting agreement by the department of natural resources under RCW 79.96.080; shall ((be)) have such conviction, bail, forfeiture, suspension, or cancellation imputed to the tract licensee for the purpose of computing the number of violations by the tract licensee under subsection (1) of this section.

(3) Except as provided in subsection (4) of this section, the director shall not issue a geoduck diver license or geoduck tract license to a person who has had a license revoked. This prohibition is effective for one year after the revocation.

(4) Appeals of revocations or refusals to renew under this section may be taken under the judicial review provisions of chapter ((~~34.04~~)) 34.05 RCW. If the license revocation or refusal to review is determined to be invalid, the director shall reissue the license to that person.