D.M.R. License Suspensions
by Nicholas Walsh, PA
The Maine Department of Marine Resources has powerful tools to enforce its laws. The typical DMR license suspension is for a court-adjudicated criminal or civil violation of a fisheries law, but other grounds exist too.
When the Department receives official notice of the conviction or violation, the Commissioner has 60 days to decide whether to impose a suspension, and to give the license holder written notice of the suspension. The notice, which is a letter, provides the basis for the suspension, states the effective date of the suspension, and, importantly, tells the fisherman that he or she has an opportunity for a hearing to argue for a lesser suspension. (For a few violations there is a mandatory suspension of a given length, such as three years for molesting lobster gear. In such a case DMR will not afford a hearing.)
The fisherman has ten days from the suspension date to request a hearing. The request must be in writing. A suspended fisherman should always request a hearing, for there is nothing to lose and there is the possibility of obtaining a suspension much shorter than the one first imposed in the notice letter. I’ll give a few pointers on suspension hearings later in this article.
The Department may suspend a license for any violation of a marine resources law, but it can also suspend for theft, and for the family of crimes that are sometimes called “resisting arrest.” In practice these suspensions are imposed for crimes related to the fishery. For example, theft of traps from the back of a truck might well get a fisherman suspended, while a burglary would not. Similarly, giving a police officer a hard time when he pulls you over on Route 9 won’t result in a DMR suspension, while failing to stop for a Marine Patrol officer absolutely will.
Because the DMR suspension does not enter until after the judge has ruled, the suspension may be delayed until months or even years after the offense occurred. From time to time DMR becomes concerned with quickly getting a bad actor out of the fishery, and for that reason DMR recently sponsored legislation allowing a new type of suspension, one imposed without a criminal conviction or civil adjudication, in fact without any court action at all. The “administrative suspension” process begins when the chief of the Marine Patrol presents the Commissioner with a sworn statement giving the details of the alleged violation. The Commissioner reviews the affidavit and if the Commissioner decides the facts as presented justify this type of suspension, the suspension letter issues. The fisherman then has the right to request a hearing, not before the Commissioner, who after all has already pre-judged the case, but before an administrative hearing officer.
Presently DMR uses a hearing officer borrowed from the Bureau of Motor Vehicles. The Bureau, of course, holds dozens of hearings a year to determine if a driver’s license should be suspended for OUI or other offenses, and as most of us are aware, the suspension can occur even in the absence of any conviction. The DMR process is in that respect similar.
If the hearing officer finds that it is more probable than not that the violation occurred, the hearing officer issues a written decision to the Commissioner, who then decides whether to impose the suspension. If a suspension issues, the fisherman has the right to ask the Commissioner for a hearing to argue for a reduced suspension.
Under this new program, for a first offense the suspension cannot be for more than one year. This is true even if (as in the case of trap molesting), had the fisherman been found liable in court the result would have been a three year mandatory suspension. And if DMR, having already suspended the license, goes ahead and asks the District Attorney to charge the hapless fisherman, DMR can’t issue another suspension even if the court convicts.
The suspension can be appealed to Superior Court, but be warned: the Superior Court will generally defer to the DMR in its decision.
The administrative suspension process is meant for hard cases, where DMR wants someone off the water and out of the fishery fast. In the routine case DMR is content to allow the court action to run its course before imposing a suspension.
As I said, license suspensions can generally be appealed to the Commissioner, who, unless the suspension is mandatory, can reduce or even eliminate the suspension. The hearings are fairly informal, often the Commissioner or deputy commissioner, a few staff, the fisherman and perhaps his lawyer sitting around a table.
The Commissioner will consider three factors in deciding whether to reduce the suspension: The fisherman’s DMR violation record and general history, the financial hardship the proposed suspension will impose, and the particulars of the offense.
If a fisherman is active in the industry, has taken time to serve on an advisory or zone committee, often travels to NMFS or ASMFC meetings, or has raised money for an injured or lost fisherman, those facts and documentation of those facts should be presented. If the suspension would impose a hardship, that should be demonstrated, with specific proof of hard times, testimony about high expenses owing to some particular hardship such as a chronic illness, etc. Written proof is always appropriate. And if the particulars of the actual offense suggest some mercy is in order, that should be demonstrated in whatever way appropriate and substantive. It is worth being very well prepared for these hearings, which the Commissioner takes seriously and which quite often result in a reduced suspension.
There’s more to DMR suspensions than I’ve related here. A fisherman’s license may be suspended for failure to pay child support or state taxes, for example. DMR can permanently revoke a lobsterman’s license if he or she has a third offense of possessing shorts or notched lobsters. And be aware that if you are suspended there are very strict laws about what kind of fishing you can do while you are under suspension. If in doubt, call DMR.
Nicholas Walsh is an admiralty attorney with an office in Portland, Maine. He may be reached at 207-772-2191, or nwalsh@gwi.net.