Hostiou, Nathalie

Pham Duy Khanh,

Cesaro, Jean-Daniel

Huyen Le Thi Thanh,

Duteurtre, Guillaume

Dinh Tien Nguyen,

Bonnet, Pascal

Cournut, Sylvie

Kelly, Shannon L.

Fellmeth, J. D.

University of San Diego

B U S I N l;_ S S  R E G U L A T O R Y  A G E N C I E S comply with this rule shall be a defense to any action brought pursuant to Business and Professions Code section 25658." [16:1 CRLR 124-27; 15:4 CRLR 137] In this case, 7-Eleven employee Danny Figueroa alleg­edly sold beer to an underage decoy working with the San Diego Police Department. Both Figueroa and the decoy testi­fied that Figueroa asked whether the decoy was over 2 1 ;  the decoy testified that he answered "no." However, Figueroa testified that the decoy said "yes." Based upon that answer and the decoy's mature appearance, Figueroa sold him the beer. When later charged with a misdemeanor, Figueroa al­leged that the decoy had lied about his age in violation of section 1 4 1 ,  and that this failure to follow the guidelines en­titled him to section 1 4 1  's affirmative defense to the criminal charge against him. The Fourth District disagreed, holding that the legisla­ture directed ABC merely to adopt and publish guidelines for the use of underage decoys. According to the court, ABC is not authorized to determine "what conduct is unlawful and the penalty for the unlawful conduct." The court noted that Athletic Commission allowing the administrative guidelines to  be used as a de­fense to a criminal prosecution would effectively permit ABC to define the elements of what does and does not constitute criminal conduct in the use of underage decoys, and that "[a]bsent an indication the legislature delegated such power to [ABC] , this would constitute an improper usurpation of the legislature's function to define what is criminal conduct." In concluding that the defense established by section 1 4 l (c) is limited to administrative actions taken by and within the authority of ABC, the court noted that when the legisla­ture was directly presented with proposed legislation estab­lishing noncompliance with the guidelines as a defense to criminal prosecution, it declined. According to the court, an early version of AB 3805 (Richter) (Chapter 1 205, Statutes of 1 994)-the bill that added subsection (e) to Business and Professions Code section 25658 and required ABC to adopt the minor decoy regulations-would have specifically stated that failure to observe the procedures is a defense to "any prosecution or accusation proceeding." That language was not contained in the enacted version of AB 3805. Executive Officer: Rob Lynch ♦ (916) 263-2195 ♦ Internet: www.dca.ca.gov/r _rlathletic.htm The Athletic Commission, part of the state Department of Consumer Affairs (DCA), is empowered to regu­late professional and amateur boxing and full contact martial arts and kickboxing under the Boxing Act, Business and Professions Code section 1 8600 et seq. The Commission's regulations are found in Division 2, Title 4 of the California Code of Regulations (CCR). The Commission consists of eight members, each serving a four-year term. All eight members are "public members," as opposed to industry representatives. The Commission has sweeping powers to approve, man­age, and direct all professional and amateur boxing and full  contact martial arts shows or exhibitions held in California, and to license professional and amateur boxers and martial arts competitors, promoters and clubs, referees.judges, match­makers, booking agents, timekeepers, managers, trainers, sec­onds, and training facilities. The Commission is authorized to develop and administer appropriate examinations to deter­mine the qualifications of indi-the separate approval of each contest in or­der to preclude mismatches. Commission representatives attend all professional box­ing contests. The Commission's goals are to ensure the health, safety, and welfare of the competitors, and the integrity of the sports of boxing and martial arts in the interest of the general public and the participating athletes. MAJOR PROJECTS Professional Boxers" Pension Plan Issues Due to declining contributions, the stability of the Commission's Professional Boxers' Pension Plan may be in jeopardy. Created in 1 982 in Business and Professions Code section 1 8880 et seq., the pension plan is intended to provide boxers with a small amount of financial security once they have retired from boxing. The vidual athletes, including pre-bout physical examinations, HIV/HBV testing, neurological testing, and eye examinations. The Commis­sion is also responsible for estab-Due to declining contributions, the stability of the Commission 's Professional B oxers' Pension Plan may be in jeopardy. plan is funded with required con­tributions from boxers, managers, and promoters, which are depos­ited into the Commission's Box-lishing and administering financial protection programs for competitors, such as the Professional Boxers' Pension Plan. The Commission places primary emphasis on boxing, where regulation extends beyond licensing and includes the estab­lishment of equipment, weight, and medical standards. Fur­ther, the Commission's power to regulate boxing extends to ers' Pension Fund for distribution to eligible boxers upon regular retirement at age 55, medical retirement, or vocational early retirement at age 36. At its January 1 5  and March 26 meetings, the Commis­sion discussed the Professional B oxing Safety Act of 1 996, 1 5  U.S.C. section 6301 et seq., a relatively new federal stat­ute that preempts state regulation of professional boxing on California Regulatory Law Reporter ♦ Volume 16, No. 2 (Summer 1999) 1 09 B U S I N E S S  R E G U L AT O R Y A G E N C I E S tribal lands. Because of this statute, many promoters are hold­ing their fights on Indian reservations; from January 1 through March 26, seven of the thirteen boxing events held in Cali­fornia were held on tribal lands. According to Executive Of­ficer Rob Lynch, past Commission administration negotiated a flat fee of $ 1 ,500 per event for Commission staff to super­vise events on tribal lands, but this fee does not include an assessment for either the pension plan or the Commission's neurological fund which finances required neurological tests for all licensed boxers . To bolster the stability of the pension plan, the Com­mission at its January meeting decided to engage in rulemaking to amend section 403(a), Title 4 of the CCR, which currently requires promoters to contribute 46 cents per ticket (excluding complimentary tickets) to the pension plan, up to a maximum of $4,600 per show. To meet its goal of $9 1 ,000 in annual contributions to the pension plan, the Commission agreed that an increase to 88 cents per ticket is necessary. On March 26, the Commission published offi­cial notice of its intent to adopt this change in the Califor­nia Regulatory Notice Register; at this writing, a public hear­ing on the proposed change is scheduled for May 1 3 .  The Commission also agreed to reconstitute its Pension Plan Advisory Committee to research alternative funding mecha­nisms for the plan. In November 1998 the Commission adopted emergency regulatory changes to sections 401 (a)(2) and 405( c ), Title 4 of the CCR, to implement a relatively new aspect of the pen­sion plan. By virtue of legislation passed in 1 995 and imple­menting regulations adopted in 1 996, the Commission con­verted the pension plan from a "defined benefit" plan to a "defined contribution" plan. Due Commission readopted and the Office of Administrative Law (OAL) approved these emergency changes for another 120-day period. On March 26, the Commission published notice of its intent to permanently amend sections 401 and 405 to extend the existence of the refund account until January I ,  2002, to give the Commission ample time to contact boxers who con­tributed to the pension plan prior to May I ,  1996. At this writ­ing, the Commission is accepting public comments on this proposal until May 10. Update on Other Commission Rulemaking On January 1 9, OAL approved the Commission 's repeal of section 28 1 (a), Title 4 of the CCR, which had stated that no boxer over the age of 36 may be granted a license except by "special approval of the Commission." This approval pro­cess has traditionally involved a personal appearance by the boxer before the Commission .. Under existing procedures, -Commission staff screen boxers over the age of 36 in super­vised sparring sessions, and make a recommendation to the Commission as to whether to approve the license. The Com­mission has never overturned staff's recommendation. The repeal of the subsection, which was adopted by the Commis­sion at its September 1998 meeting [ 16: 1 CRLR 130 ], now permits staff to approve or deny licenses to boxers over the age of 36, pursuant to Business and Professions Code section 1 8642.5 and section 283, Title 4 of the CCR. LEGISLATION S B  160 (Peace) and A B  135 (Ducheny) are the Senate and Assembly budget bills, respectively, for fiscal year 1999-2000. These bills would appropri­to the conversion, certain boxers who made contributions to the plan prior to May 1 ,  1996 will never be entitled to benefits from the plan; thus, they are owed a re­fund in the amount of their con­tri bu ti on plus i n terest .  As  amended i n  1 996,  sect ion The court enjoined the Commission from e nforci ng Business and P rofessions Code section 1 8832, which requires broadcasters of p ay-p e r-view boxing,  m artial  arts, and wrestling events to pay the Commission a 5% tax on their gross receipts. ate $937,000 to the Commission from the general fund for general support of the Commission 's ac­tivities during FY 1 999-2000. The Commission is the only oc­cupational licensing agency in the Department of Consumer Affairs 401 (a)(2) requires the Commission to set up a "refund ac­count" as a sub-account within the Pension Fund to hold the contributions of these boxers . Under sections 401 (a)(2) and 405(c), the sub-account exists until January I ,  2000, and Com­mission staff had until January 1 ,  1999 to contact these box­ers and notify them that they may be entitled to a refund. Eligible boxers must claim a refund by January 1 ,  1999, or forfeit it. However, the task of notifying eligible boxers was more difficult and took much longer than originally antici­pated. In its November 1998 emergency amendments to sec­tions 401 and 405, the Commission extended the January 1 ,  1999 claiming deadline to January 1 ,  2000, thus giving staff another year to contact boxers eligible for a refund from the Pension Fund. [ 16: 1 CRLR 128] On April 2, just prior to the April 5 expiration of those emergency amendments, the that is supported by the general fund; all others are required to support themselves on licens­ing fees. The Commission is unable to support itself because it lacks a stable licensee base; many licensees fail to renew their licenses until a fight is scheduled in this state. These bills would also authorize the Commission to spend $79,000 from the Professional Boxers' Pension Plan and $97,000 from the Boxers' Neurological Examinations Account, for a total 1999-2000 Commission budget of $ 1 . 1  million. [A. Budg] LITIGATION The Commission has decided not to appeal the October 1998 decision of the U.S. District Court for the Eastern Dis­trict of California in United States Satellite Broadcasting Company v. Lynch, et al. , 4 1  F.Supp.2d 2 1 1 3 .  In that decision, the court enjoined the Commission from enforcing 1 10 California Regulatory Law Reporter ♦ Volume 16, No. 2 (Summer 1999) B U S I N E S S  R E G U L AT O R Y A G E N C I E S Business and Professions Code section 18832, which requires broadcasters of pay-per-view boxing, martial arts, and wres­tling events to pay the Commission a 5% tax on their gross receipts. The court found that the law exclusively taxes one form of entertainment, which is protected by the first amend­ment. The law thus imposes a content-based restriction which triggers "strict scrutiny," meaning the state must assert and prove that the tax is "necessary to serve a compelling state interest and . . .  narrowly drawn to achieve that end ." Because the Commission failed to satisfy this burden, the court de­clared the statute unconstitutional and enjoined the Commis­sion from enforcing it. [16:J CRLR 131] RECENT MEETI NGS At its January 15 meeting, the Commission reelected Commissioner Ernest Weiner as Chair and Commissioner Manuel "Cal" Soto as Vice-Chair. At its March 26 meeting, the Commission reestablished its Martial Arts Advisory Committee to review proposed rules for the conduct of "submission" -type events for possible Com­mission approval and promotion in California. "Submission Cal-OSHA Executive Officer: John D. Macleod ♦ (916) 322-3640 ♦ Internet: www.dir.ca.gov/D/RIOS&H/OSHSB/oshsb.html C alifornia's Occupational Safety and Health Adminis­tration (Cal-OSHA) is part of the cabinet-level De­partment of Industrial Relations (DIR). The agency administers Cal ifornia's programs ensuring the safety and health of California workers . Cal-OSHA was created by statute in October 1 973; its authority is outlined in Labor Code sections 140-49. It is approved and monitored by, and receives some funding from, the federal Occupational Safety and Health Administration (Fed-OSHA). Cal-OSHA's regulations are codified in Titles 8, 24, and 26 of the California Code of Regulations (CCR) . Cal-OSHA's Occupational Safety and Health Standards Board (OSB) is a quasi-legislative body empowered to adopt, review, amend, and repeal health and safety regulations which affect California employers and employees . Under section 6 of the Federal Occupational Safety and Health Act of 1 970, Cal ifornia's worker safety and health standards must be at least as effective as Fed-OSHA's standards within six months of promulgation of a given federal standard. Current proce­dures require OSB to justify its adoption of standards that are more stringent than the federal standards . OSB is authorized to grant interim or permanent variances from occupational safety and health standards to employers who can show that an alternative process would provide equal or superior safety to employees . The Board may also cons ider petitions for new or revised regulations proposed by any interested person con­cerning occupational safety and health .  OSB holds monthly fighting" is a mix of wrestling and martial arts; participants fight in a cage (not a ring) until one of them "submits" by tapping the canvas . Several submission fighting organizations approached the Commission in November 1 998, and were notified that while the Commission has adopted regulations to govern kickbox:ing, it has no rules to govern submission events. The organizations were instructed to submit proposed regulations to govern various types of submission events. By the March meeting, the Commission had received proposed regulat ion s from var ious prospect ive promoters of shootfighting, shooto, and pancrase events, and reactivated its Martial Arts Advisory Committee to review these pro­posals and make recommendations to the Commission at a future meeting. FUTURE MEETI NGS • May 1 3 , 1 999 in San Jose. • July 23, 1 999 in Los Angeles. • September 1 7, 1 999 in Burbank. • November 5, 1 999 in Sacramento. meetings to permit interested persons to address the Board on any occupa­tional safety and health matter. The seven members of OSB are appointed by the Gover­nor to four-year terms. Labor Code section 140 mandates the composition of the Board. At this writing, OSB is comprised of occupational health representative Jere Ingram, who serves as Board Chair; occupational safety representative Gwendolyn Berman; management representatives William Jackson and Victoria Bradshaw; labor representatives Elizabeth Lee and Kenneth Young; and publ ic member Sopac Tompkins . The duty to investigate complaints and enforce OSB's safety and health regulations rests with the Division of Occu­pational Safety and Health (DOSH). DOSH issues citations and abatement orders (granting a specific time period for rem­edying the violation), and levies civil and criminal penalties for serious, willful, and repeated violations . In addition to performing routine investigations, DOSH is required by law to investigate employee complaints and accidents causing serious injuries, and to make follow-up inspections at the end of abatement periods. The Occupational Health and Safety Appeals Board adjudicates disputes arising out of DOSH's enforcement of OSB 's standards . Cal-OSHA's Consultation Service provides onsite health and safety recommendations to employers who request assistance. Consultants gu ide employers in adhering to Cal ­OSHA standards without the threat of citations or fines. California Regulatory Law Reporter ♦ Volume 16, No. 2 (Summer 1999) 1 1 1  

English

Athletic Commission

http://agritrop.cirad.fr/583049/1/P31.pdf

The transition of animal farming in Vietnam: from semi-subsistence to commercial systems

The transition of animal farming in Vietnam: from semi-subsistence to commercial systems

Abstract

Similar works

Full text

Available Versions

University of San Diego

University of San Diego