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Relating to prohibiting the sale and purchase of certain aquatic products; creating a criminal offense; increasing a criminal penalty.
No significant fiscal implication to the State is anticipated.
HB 1828 would prohibit the sale and purchase of aquatic products (seafood) that are taken, possessed, transported, or sold in violation of a federal or state law or regulation. A violation of this section would be a Class B misdemeanor, Class A misdemeanor, or state jail felony depending on the weight range of the aquatic products involved in the offense. Minimum fine amounts would be pegged to the weight range of aquatic products involved.
The Senate committee substitute added that it is an affirmative defense to prosecution that the person "had no reason to believe at the time the offense was committed that the aquatic products purchased for resale or received for sale, barter, exchange, transport, or any other commercial purpose were taken, possessed, transported, or sold in violation of a federal or state law or regulation" and purchased or acquired the aquatic products from a seller who had a valid license to sell aquatic products.
When this bill was in the House our recommendation was "no; amend" with the suggestion that the bill be amended to add a mens rea protection so that to secure a conviction a prosecutor must prove criminal intent on the part of the defendant.
The addition of the affirmative defense in the Senate committee substitute is significant progress but does not quite get us where we need to be to remove our objection to the bill.
This affirmative defense provision places the burden of proof on the defendant to prove a negative; that he or she "had no reason to believe" they were committing a crime and that the individual they acquired the aquatic products from has a valid license. We believe the burden of proof should rest squarely on the prosecution.
In addition, we note that the affirmative defense only applies if the seller has a valid license. This means that if the seller's license was temporarily invalid due to a missed renewal deadline, the affirmative defense would not apply which puts us right back to the possibility that a seafood buyer with no criminal intent may be held criminally liable for unknowingly violating a state or federal law or regulation.
For these reasons, while we acknowledge and appreciate that CSHB 1828 is an improvement upon the version passed by the House, we maintain our opposition to this bill unless amended to stipulate that there must be criminal intent for an offense to be committed.