GENERAL PROVISIONS AND DEFINITIONS
This act shall be known as the “Food and Agricultural Code.”
It is hereby declared, as a matter of legislative determination, that the provisions of this code are enacted in the exercise of the power of this state for the purposes of promoting and protecting the agricultural industry of the state and for the protection of the public health, safety, and welfare. In all civil actions the provisions of this code shall be liberally construed for the accomplishment of these purposes and for the accomplishment of the purposes of the several divisions of this code, and in criminal actions the rule of construction set forth in Section 4 of the Penal Code shall be the rule of construction for this code.
The provisions of this code, insofar as they are substantially the same as existing law, are restatements and continuations of existing law, and not new enactments. The enactment of this code shall not impair any privilege granted or right acquired under any of the laws of this state prior to the date it takes effect.
All persons who, at the time this code goes into effect, hold office under any of the laws that are repealed by this code, which offices are continued by this code, continue to hold the offices according to their former tenure.
No action or proceeding which is commenced before this code takes effect, and no right which is accrued, is affected by any provision of this code, but all procedure thereafter taken in such action or proceeding shall conform to the provisions of this code so far as possible.
Any person in whom the enforcement of any provision of this code is vested shall have the authority, as a public officer, to arrest, without a warrant, another person whenever such officer has reasonable cause to believe that the person to be arrested has, in his presence, violated any provision of this code, the violation of which is declared to be public offense. If such violation is a felony, or if the arresting officer has reasonable cause to believe that the person to be arrested has violated a provision of this code which is declared to be a felony, although no felony has in fact been committed, he may make an arrest although the violation or suspected violation did not occur in his presence.
In any case in which an arrest is made pursuant to this authority for an offense declared to be a misdemeanor or an infraction, the arresting officer may, instead of taking the person arrested before a magistrate, follow the procedure prescribed by Chapter 5C (commencing with Section 853.5) of Title 3 of Part 2 of the Penal Code, unless the arrested person demands to be taken before a magistrate. The provisions of such chapter shall thereafter apply with reference to any proceeding based upon the issuance of a citation pursuant to this authority.
There shall be no civil liability on the part of, and no cause of action shall arise against, any person, acting pursuant to subdivision (a) and within the scope of his authority, for false arrest or false imprisonment arising out of any arrest which is lawful or which the arresting officer, at the time of such arrest, had reasonable cause to believe was lawful. No such officer shall be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.
Any person in whom the enforcement of any provision of this code is vested may serve all processes and notices throughout the state; provided, that county employees authorized to enforce the provisions of this code are authorized to serve processes and notices only within the boundaries of the county which employs them.
The district attorney of any county in which a violation of any provision of this code occurs shall, upon request of any enforcing officer or other interested person, prosecute such violation. The prosecutor of any municipality has concurrent jurisdiction as to any violation which is committed within his territorial jurisdiction.
Unless a different penalty is expressly provided, a violation of any provision of this code is a misdemeanor.
Whenever any notice, report, statement, or record is required by this code, it shall be in writing unless it is expressly provided that it may be oral.
It is unlawful for any person to alter any record or document in the office of a commissioner required to be filed pursuant to any provision of this code or pursuant to rules and regulations authorized by this code, without the approval of the commissioner or an authorized deputy.
Whenever any notice, report, statement, or record is required by this code to be kept or made in writing, it shall be in the English language.
Unless otherwise specifically provided, whenever any document is required or permitted by this code to be recorded, it shall be recorded in the office of the county recorder of the county in which the property or thing which is affected is situated.
Whenever any power or authority is given by this code to any person, it may be exercised by any deputy, inspector, or agent who is duly authorized by him.
Wherever, pursuant to this code, any state department, officer, board, agency, committee, or commission is authorized to adopt rules and regulations, such regulations shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340 ) of Part 1 of Division 3 of Title 2 of the Government Code, to the extent that that chapter is not specifically in conflict with the express terms of the provisions of this code which authorize the adoption of such regulations. Those rules and regulations which are building standards, as defined in Section 18909 of the Health and Safety Code, shall be adopted and approved pursuant to the provisions of Chapter 4 (commencing with Section 18935) of Part 2.5 of Division 13 of the Health and Safety Code unless the provisions of Sections 18930, 18933, 18938, 18940, 18943, 18944, and 18945 of the Health and Safety Code are expressly excepted in the provision of this code under which the authority to adopt the specific building standard is delegated. Any building standard adopted in violation of this section shall have no force or effect. Any building standard adopted prior to January 1, 1980, pursuant to this code and not expressly excepted by statute from such provisions of the State Building Standards Law shall remain in effect only until January 1, 1985, or until adopted, amended, or superseded by provisions published in the State Building Standards Code, whichever occurs sooner.
The authority to adopt any rule, regulation, or rule and regulation which is vested in any state department, officer, board, agency, committee, or commission pursuant to this code includes the authority to amend or repeal the rule, regulation, or rule and regulation.
Whenever reference is made to any portion of this code or of any other law of this state, the reference applies to all amendments and additions to it.
Division, part, chapter, and article headings do not in any manner affect the scope, meaning, or intent of the provisions of this code.
If any provision of this code or its application to any person or circumstance is held invalid, the remainder of the code or the application of the provision to any other person or circumstance is not affected.
In all matters which arise under this code, proof of the fact of possession by any person engaged in the sale of a commodity establishes a rebuttable presumption that the commodity is for sale. This presumption is a presumption affecting the burden of producing evidence.
Unless the context otherwise requires, the present tense includes the past and future tenses, and the future, the present tense.
Unless the context otherwise requires, the masculine gender includes the feminine and neuter.
Unless the context otherwise requires, the singular number includes the plural, and the plural the singular.
Inasmuch as the planned production of trees is distinguishable from the production of other products of the soil only in relation to the time elapsing before maturity, the production of trees shall be considered a branch of the agricultural industry of the state for the purposes of any law which provides for the benefit or protection of the agricultural industry of the state.
Inasmuch as the planned production of trees, vines, rose bushes, ornamental plants, floricultural crops, and other horticultural crops is distinguishable from the production of other products of the soil only in relation to the time elapsing before maturity, plants and floricultural crops that are being produced by nurseries, whether in open fields or in greenhouses, shall be considered to be “growing agricultural crops” for the purpose of any laws that pertain to the agricultural industry of the state, and those laws shall apply equally to greenhouses and open field nursery operations.
For the reasons stated in subdivision (a), a nursery where the primary activity is the planned production of horticultural crops, is a farm. However, for the purposes of this section and any laws that pertain to farms in this state, a retail nursery is not a farm.
The commercial production of aquatic plants and animals propagated and raised by a registered aquaculturist pursuant to Section 15101 of the Fish and Game Code in the state is a growing industry and provides a healthful and nutritious food product, and, as a commercial operation, utilizes management, land, water, and feed as do other agricultural enterprises. Therefore, the commercial production of that aquatic life shall be considered a branch of the agricultural industry of the state for the purpose of any law that provides for the benefit or protection of the agricultural industry of the state except those laws relating to plant quarantine or pest control.
The Legislature hereby finds and declares that greenhouse production of floricultural, ornamental, or other nursery and agricultural products in the state is a growing industry that provides valuable agricultural products and year-round employment for agricultural workers. The Legislature further declares that greenhouse production is an efficient self-contained production system that offers protections for the environment and allows for the use of conservation-oriented production technologies, including drip irrigation, water recycling, and hydroponics, and the use of energy conservation systems.
The Legislature hereby finds and declares that vermiculture in the state is a growing industry and that use of vermiculture and vermiculture by-products for the commercial purpose of producing agricultural commodities should be encouraged. As used in this section, “vermiculture” is the raising of animals belonging to the order Oligochaeta, class Chaetopoda, phylum Annelida.
Vermiculture, and the processing, packaging, sale, and use of its by-products, shall be considered a branch of the agricultural industry.
It is hereby declared, as a matter of legislative determination, that the provisions of this section are enacted in the exercise of the power of this state for the purpose of protecting and furthering the public health and welfare. It is further declared that the floriculture and nursery industry of this state is affected with a public interest, in that, among other things:
The production, processing, manufacture, and distribution of floriculture and nursery products constitute a paramount industry of this state which not only provides substantial and required revenues for the state and its political subdivisions by tax revenues and other means, and employment and a means of livelihood for many thousands of its population, but also furnishes substantial employment to related industries that are vital to the public health and welfare.
Basic research and development for floriculture and the nursery industries contribute substantially to food production in this state which is essential to the welfare and health of its citizens.
It is also declared that the elimination of disorderly marketing of California floricultural and nursery products, and the development of new and larger markets through education, promotion and other means for these products, are affected with the public interest.
All production of floriculture and nursery products in greenhouses shall be deemed equivalent to the production of floricultural products in open fields.
Inasmuch as plants growing in native stands or planted for ornamental purposes contribute to the environmental and public health and welfare needs of the people of the state, the Legislature hereby finds and declares that such plants shall be considered as a part of the agricultural industry for the purpose of any law that provides for the protection of the agricultural industry from pests.
Unless the context otherwise requires, the definitions in the following sections govern the construction of this code.
“Aquaculture” means that form of agriculture devoted to the propagation, cultivation, maintenance, harvesting, processing, distribution, and marketing of aquatic plants and animals in marine, brackish, and fresh water. “Aquaculture” does not include species of ornamental marine or freshwater plants and animals not utilized for human consumption or bait purposes that are maintained in closed systems for personal, pet industry, or hobby purposes.
“Commissioner” means any county agricultural commissioner.
“County” includes city and county.
“Department” means the Department of Food and Agriculture.
“Greenhouse” means a structure covered with transparent or translucent materials for the purpose of admitting natural light and controlling the atmosphere for growing plants, including floricultural, ornamental, or other nursery and agricultural products.
“Secretary” means the Secretary of Food and Agriculture.
“Spouse” includes “registered domestic partner,” as required by Section 297.5 of the Family Code.
“Person” means any individual, partnership, association, corporation, limited liability company, or any organized group of persons whether incorporated or not.
“Qualified representative of the commissioner” means a deputy commissioner or inspector who holds an appropriate certificate of qualification issued by the director as provided in Chapter 2 (commencing with Section 2101) of Division 2 of this code.
“Section” means a section of this code, unless some other statute is specifically mentioned.
“Sell” includes offer for sale, expose for sale, possess for sale, exchange, barter, or trade.
“Shall” is mandatory, and “may” is permissive.
“Subdivision” means a subdivision of the section in which that term occurs unless some other section is expressly mentioned.
Whenever the term “department” or “Department of Agriculture” appears in any law, it means the “Department of Food and Agriculture.”
Whenever the term “director,” “secretary,” “Director of Agriculture,” or “Secretary of Agriculture” appears in any law, it means the “Secretary of Food and Agriculture.”
Whenever the term “Agricultural Code” appears in any law, it means the “Food and Agricultural Code.”
If, in connection with the use of roads, highways, and freeways, the assistance, control, or protection by Highway Patrol officers is desired, applications by an entity engaged in agricultural production to utilize services of Highway Patrol officers in the transportation of agricultural commodities shall be made to the Commissioner of the California Highway Patrol. The commissioner may approve the application provided that employees are available and the department is fully reimbursed for additional costs incurred.
Applications to utilize Highway Patrol employee services shall be approved or disapproved by the Commissioner of the California Highway Patrol within 30 days of receipt of the application and shall be approved sooner, if possible.
DIVISION 1. STATE ADMINISTRATION [101. - 1501.]
PART 1. THE DEPARTMENT OF FOOD AND AGRICULTURE [101. - 894.]
CHAPTER 1. Organization [101. - 105.]
There is in the state government the Department of Food and Agriculture.
The department is under the control of a civil executive officer known as the Secretary of Food and Agriculture who shall receive the salary provided for by Chapter 6 (commencing with Section 11550) of Part 1 of Division 3 of Title 2 of the Government Code. He or she shall be appointed by, and hold office at the pleasure of, the Governor.
Except as is otherwise provided in this chapter, Chapter 2 (commencing with Section 11150) of Part 1 of Division 3 of Title 2 of the Government Code governs and applies to the conduct of the department in every respect the same as if those provisions were set forth in this code, and whenever in that chapter the term “head of the department” or similar designation occurs, for the purpose of this code it means the secretary.
The secretary may appoint and in accordance with law fix the salaries of such assistants, deputies, agents, experts, and other employees as are necessary for the administration of the department.
The chief of the division of the department who has jurisdiction over livestock and poultry disease control, meat inspection and dairy inspection and control shall officially designate a department employee as “State Veterinarian.” Such designated person shall be a graduate of a recognized college of veterinary medicine, be licensed to practice in this state, and have a state civil service classification of veterinary medical officer III or above.
CHAPTER 2. Fiscal Duties and Powers [201. - 306.]
ARTICLE 1. General Provisions [201. - 201.]
The department may expend in accordance with law all money which is made available for its use.
ARTICLE 2. Department of Food and Agriculture Fund [221. - 227.]
The “Department of Food and Agriculture Fund,” which is a special fund, is continued in existence. Any moneys that are directed by law to be paid into the fund shall be paid into it and, unless otherwise specifically provided, shall be expended solely for the enforcement of the law under which the moneys were derived. The expenditure from the fund for the enforcement of any law shall not, unless otherwise specifically provided, exceed the amount of moneys that is credited to the fund pursuant to the law.
Notwithstanding Section 13340 of the Government Code, all moneys deposited into the fund under the provisions enumerated in subdivision (c) are hereby continuously appropriated to the department without regard to fiscal years for expenditure in carrying out the purposes for which the moneys were deposited and for making the refunds authorized by Section 302.
All moneys deposited into the fund under the provisions enumerated below are hereby exempted from Sections 13320 to 13324, inclusive, of the Government Code:
Article 5 (commencing with Section 6001) of Chapter 9 of Part 1 of Division 4.
Article 8.5 (commencing with Section 6047.1) of Chapter 9 of Part 1 of Division 4.
Article 5 (commencing with Section 6981) of Chapter 2 of Part 3 of Division 4.
Chapter 1.5 (commencing with Section 7401) of Part 4 of Division 4.
Division 10 (commencing with Section 20001).
Division 11 (commencing with Section 23001).
Part 4 (commencing with Section 27501) of Division 12.
Division 16 (commencing with Section 40501).
Chapter 9 (commencing with Section 44971) of Division 17.
Chapter 1 (commencing with Section 52001) of Division 18.
Chapter 2 (commencing with Section 52251) of Division 18.
Chapter 3 (commencing with Section 52651) of Division 18.
Chapter 4 (commencing with Section 52851) of Division 18.
Section 58582.
Division 24 (commencing with Section 81000).
Chapter 5.5 (commencing with Section 12531) of Division 5 of the Business and Professions Code.
Chapter 7 (commencing with Section 12700) of Division 5 of the Business and Professions Code.
Chapter 14 (commencing with Section 13400) and Chapter 15 (commencing with Section 13700) of Division 5 of the Business and Professions Code.
Notwithstanding Section 221, the department shall establish all permanent positions with the Controller’s office, pursuant to standard state administrative practices.
The director shall keep a separate record of the classes and sources of income which are credited to, and disbursed from, the Department of Food and Agriculture Fund.
A sum not to exceed twenty-five thousand dollars ($25,000) may, upon approval of the Department of Finance, be withdrawn from the Department of Food and Agriculture Fund to be used as a revolving fund by the department for the purposes for which the Department of Food and Agriculture Fund may be used.
Moneys transferred by the Controller to the Department of Food and Agriculture Fund from the Motor Vehicle Fuel Account pursuant to Section 8352.5 of the Revenue and Taxation Code shall be expended by the Secretary of Food and Agriculture as follows:
Of the amount transferred each fiscal year, nine million dollars ($9,000,000) is hereby appropriated to the Department of Food and Agriculture for payment to the counties for pesticide use enforcement programs supervised by the Director of Pesticide Regulation. Reimbursement shall be apportioned to the counties in relation to each county’s expenditures to the total amount expended by all counties for the preceding fiscal year for pesticide use enforcement programs, as determined by the director, or with the collective agreement of the county agricultural commissioners, disbursement to counties for a current fiscal year according to criteria developed in work plans, or any combination of reimbursement and disbursement as agreed upon by the director and the county agricultural commissioners. The amount to be transferred to any county for a fiscal year may be increased or decreased by the director to compensate for incorrect previous transfers to that county, or adjusted based on evaluations of annual county Pesticide Enforcement Work Plans conducted by the Department of Pesticide Regulation.
Of the amount transferred each fiscal year, two hundred fifty thousand dollars ($250,000) is hereby appropriated to the Department of Food and Agriculture for state and county liaison activities and for departmental expenses directly related to administration of this section.
Of the amount transferred each fiscal year, one million five hundred thousand dollars ($1,500,000) is hereby appropriated to the Department of Food and Agriculture for divisional and departmental overhead charges to the Department of Food and Agriculture.
Of the amount transferred each fiscal year in excess of the amount transferred in the 2006–07 fiscal year, 7 percent is hereby appropriated to the Department of Food and Agriculture for full disbursement to the California Agricultural Commissioners and Sealers Association, as specified in Section 2003, and individual counties. The funds dispersed to individual counties, pursuant to subdivision (g), shall be in a proportion to offset expenses associated with programs, personnel, and materials that ensure the uniform application of state agricultural policy or administer programs supervised by the secretary.
Notwithstanding any other law, of the amount transferred each fiscal year, three million dollars ($3,000,000) is hereby appropriated for distribution to counties in a manner prescribed by the secretary for pest detection or trapping programs. These funds are intended to supplement funds available for pest detection or trapping in the annual Budget Act. As a condition of receiving these funds, counties shall not reduce their level of support from any other funds for pest detection or trapping programs. If a county declines to participate in a pest detection or trapping program, or fails to conduct the program to the state’s satisfaction, the secretary shall reduce, by the amount that would otherwise be allocated to the county, funds available pursuant to this subdivision and any state allocations from the annual Budget Act. Those forfeited funds are hereby appropriated to the Department of Food and Agriculture for purposes of operating the pest detection or trapping programs in those counties.
Of the amount transferred each fiscal year, three million dollars ($3,000,000) is hereby appropriated to the Department of Food and Agriculture to be used for emergency detection, investigation, or eradication of agricultural plant or animal pests or diseases during the fiscal year, upon approval of the Director of Finance. At the end of each fiscal year, any unencumbered balance of these funds shall be carried over to the next fiscal year, or at the discretion of the secretary, may be used for planning and research involving detection, investigation, eradication, and methods of quarantine compliance for agricultural plant or animal pests or diseases.
The Department of Food and Agriculture shall develop policies, in consultation with the county agricultural commissioners and in compliance with any requirements of the annual Budget Act, to guide the ongoing use of these funds.
The total amount transferred during each fiscal year less the amounts provided in subdivisions (a) to (f), inclusive, and any moneys in reserve, is hereby appropriated for either or both of the following purposes:
To be paid to the counties for agricultural programs authorized by this code that are supervised by the Department of Food and Agriculture and administered by county agricultural commissioners. Reimbursement shall be apportioned to the counties in relation to each county’s expenditures to the total amount expended by all counties for the preceding fiscal year for agricultural programs, as determined by the secretary, or with the collective agreement of the county agricultural commissioners, disbursement to counties according to criteria developed in work plans for a current fiscal year, or any combination of reimbursement and disbursement as agreed upon by the secretary and the county agricultural commissioners. The amount to be transferred to any county for a fiscal year may be increased or decreased by the secretary to provide that, insofar as those transferred unclaimed refundable gas tax funds for apportionment to the counties are available, no county shall receive smaller combined apportionments of gas taxes and unclaimed refundable gas taxes than that county would have received had the gas taxes been apportioned without the transfer required by Section 8352.5 of the Revenue and Taxation Code, as determined by the secretary, except that the amount of unclaimed refundable gas tax funds to be transferred to any county for a fiscal year may be increased or decreased by the secretary to compensate for incorrect previous transfers to that county, and to account for any failure to meet the criteria listed in Section 224.5.
To be expended by the Department of Food and Agriculture for statewide agricultural programs as agreed upon by the secretary and the county agricultural commissioners.
In order to be eligible for the transfer specified in subdivision (g) of Section 224, counties must meet all of the following criteria, as determined by the secretary:
Currently employ or contract with a licensed agricultural commissioner.
Submit annual agricultural expenditure reports to the department in a timely manner.
Maintain county general fund support for agricultural commissioner services at least equal to the average amount expended for the five preceding fiscal years, unless the county is facing unusual economic hardship that precludes that support.
In the event that a county does not meet the criteria listed in subdivision (a) in a timely fashion, nothing shall preclude the secretary from completing transfers only to those counties that have met the criteria, while reserving funds for distribution to counties that may later be determined to have met them, or to set a date certain each fiscal year by which all available funds will be distributed to the counties that have met the criteria.
This section shall become operative on July 1, 2008.
Notwithstanding any other provision of law, on all funds transferred from the Department of Food and Agriculture Fund and the Acala Cotton Fund for any purpose other than to carry out or enforce the law directly relating to the source of those funds, interest shall be paid to the Department of Food and Agriculture Fund or the Acala Cotton Fund which otherwise would have been earned if the funds had not been transferred.
Notwithstanding Section 11044 of the Government Code, the sum of one hundred thousand dollars ($100,000) is hereby continuously appropriated from the Department of Food and Agriculture Fund in each fiscal year to the department for litigation expenses incurred by the Bureau of Market Enforcement.
At any time in a given fiscal year that the one hundred thousand dollars ($100,000) appropriated for litigation costs in subdivision (a) is completely expended, the Department of Food and Agriculture Fund and the General Fund shall share additional litigation costs on a basis of 20 percent paid by the Department of Food and Agriculture Fund and 80 percent paid by the General Fund. These additional funds are to be used only when the bureau or the department is a defendant, or becomes a cross-defendant, in an action relating to market enforcement.
If a legal action is carried from one fiscal year to the next, the costs incurred in the following year shall not be charged against the one hundred thousand dollars ($100,000) annually allocated pursuant to subdivision (a) to the bureau, but instead shall continue to be funded in the following years with 80 percent being paid by the General Fund and 20 percent being paid by the Department of Food and Agriculture Fund.
In civil actions in which the bureau is a party, the prevailing party may be awarded court costs and attorneys fees.
Notwithstanding any other provision of law, in order to avoid unnecessary charges and to provide for efficient program implementation, the fees and assessments required by law to be paid to the director or the Department of Food and Agriculture Fund to support the agricultural programs specified in subdivision (b) of Section 230, except those specified in Article 5 (commencing with Section 6001) of Chapter 9 of Part 1 of Division 4, Article 8.5 (commencing with Section 6047.1) of Chapter 9 of Part 1 of Division 4, and Chapter 9 (commencing with Section 44971) of Division 17, may be deposited in the Department of Food and Agriculture Fund, or with an entity that is (1) a bank or other depository approved by the Department of Finance, (2) a marketing order board or commission created pursuant to this code, or (3) another state agency, designated by the agricultural program’s advisory body, if any. The fees and assessments required by law to be paid to the Department of Food and Agriculture Fund in Article 8.5 (commencing with Section 6047.1) of Chapter 9 of Part 1 of Division 4 may be deposited in the Department of Food and Agriculture Fund, or with an entity that is a bank or other depository approved by the Department of Finance. The director may designate that entity if an advisory body has not been created by statute for an agricultural program. All unencumbered funds in the Department of Food and Agriculture Fund and the Agriculture Trust Fund, including income therefrom, that have been collected pursuant to the agricultural program may also be deposited with the designated entity.
The funds deposited with the designated entity shall be expended exclusively for the purpose of implementing and continuing the agricultural program for which they were collected.
Prior to the deposit of any funds with an entity designated pursuant to subdivision (a), the entity shall enter into an agreement with the department that shall include, but not be limited to, all of the following requirements:
The entity shall serve as custodian for the safekeeping of the funds.
Funds deposited with the entity shall be encumbered for the exclusive purpose of implementing and continuing the agricultural program for which they were collected.
Funds deposited with the entity shall be subject to an audit at least once every two years by an auditor selected by the director. A copy of the audit shall be provided to the director within 30 days of completion of the audit.
The department shall be reimbursed for all expenses it incurs that are reasonably related to implementing and continuing the agricultural program for which the funds were collected in accordance with the agreement. With respect to the agricultural program created in Article 8.5 (commencing with Section 6047.1) of Chapter 9 of Part 1 of Division 4, the department shall be limited to those expenditures permitted under Section 6047.12. When practicable, as determined by the department, the designated entity shall deposit advance payments for these expenses with the department.
The entity shall maintain a reserve in an amount sufficient to pay for costs arising from unanticipated occurrences associated with the administration of the program. Provided that, with respect to the agricultural program created in Article 8.5 (commencing with Section 6047.1) of Chapter 9 of Part 1 of Division 4, the reserve shall include only an amount sufficient to pay for costs associated with the administrative expenditures described in Section 6047.12, and may be expended annually for those purposes.
In transferring funds from the department to any entity pursuant to subdivision (a), the director shall not be personally liable in any way for errors in judgment, mistakes, or other acts, either by commission or omission, except for his or her own individual acts of dishonesty or crime.
ARTICLE 2.5. Agriculture Trust Fund [230. - 240.5.]
As used in this article:
“Advisory body” means the advisory body for each individual agriculture program.
“Agriculture programs” means the programs specified in Section 221, Chapter 5 (commencing with Section 5301) of Division 4, Sections 6037, 6038, and 9641.5, Chapter 1 (commencing with Section 29001) of Division 13, Division 15 (commencing with Section 32501), Article 6.5 (commencing with Section 42801) of Chapter 2 of Division 17, and Chapter 10 (commencing with Section 46000) of Division 17.
“Trust fund” means the Agriculture Trust Fund created pursuant to Section 232.
The Legislature finds and declares that the maintenance of agriculture funded programs described in subdivision (b) of Section 230 is necessary to ensure the consuming public of a continuous and safe supply of food and fiber and is affected with a public interest. This article is enacted in the exercise of the police power of this state for the purpose of protecting the health and welfare of the people of this state.
The Agriculture Trust Fund is hereby created. The trust fund is not a fund of the State Treasury. Transfers to the trust fund may be deposited in the State Treasury, or in a bank or other depository approved by the Department of Finance. Funds that are so transferred are exempt from Sections 11270 and 11272 of the Government Code and shall be deposited and disbursed only to pay for attorney’s fees and other costs incurred in litigation involving the trust fund, expenses generated by the auditing requirement imposed by Section 239, and the costs set forth in Section 240.
The trust fund consists of moneys transferred by the director from the Department of Food and Agriculture Fund, including all income therefrom. The amount of funds, excluding interest earned thereon, contained in the trust fund shall be determined by the director, and shall be the same percentage for all agricultural programs, but shall not exceed 10 percent of the annual operating budgets of each agricultural program. Funds in excess of 10 percent of the annual operating budgets of each agricultural program that are in the trust fund, or such other lesser percentage as the director may determine, may be returned to the Department of Food and Agriculture Fund.
The director shall establish separate accounts in the trust fund for the money transferred to the fund from each of the agricultural program accounts in the Department of Food and Agriculture Fund. The trust accounts shall be used by the Department of Food and Agriculture Fund for expenditure when necessary for the exclusive purpose of implementing and continuing any of the agriculture programs with money contained in the trust fund.
The trust fund is created for the exclusive purpose of implementing and continuing the agricultural programs for which the funds were collected.
The beneficiaries of the trust are the agricultural programs with money contained in the trust fund.
The trust fund shall continue in existence for as long as any of the agricultural programs specified in subdivision (b) of Section 230 continues to exist. Upon termination of any of those agricultural programs, all of that program’s remaining funds, exclusive of all financial obligations of that program, shall be returned on a pro rata basis to all persons from whom assessments or fees were collected for purposes of that program in the immediately preceding marketing season. However, if the director finds that the amounts returnable are so small as to make impractical the computation and remitting of a pro rata refund to those persons, any funds remaining after payment of all expenses shall be paid to any existing state or federally authorized agricultural program relating to the same industry. If no such program exists, any remaining money shall be paid to the Department of Food and Agriculture Fund. If the account of a terminating agricultural program is insufficient to meet all financial obligations, the director may borrow a pro rata share from all other accounts in the trust fund to pay those obligations. The director shall collect a supplemental assessment from all persons from whom assessments or fees were collected for the purposes of the program being terminated in the immediately preceding marketing seasons to reimburse the trust fund. Upon the termination of all the agricultural programs specified in subdivision (b) of Section 230, the trustee shall transfer the remaining funds to the Department of Food and Agriculture Fund.
It is hereby declared, as a matter of legislative determination, that the advisory body for each of the identified agricultural programs is intended to represent and further the interest of a particular agricultural industry concerned, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to any advisory body, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The chairperson of each advisory body shall advise the director on the administration of the trust fund, including, but not limited to, the amount of the fund to be applied to program closures, unanticipated occurrences, and replenishment.
All trust fund activities shall be subject to an audit at least once every two years by an auditing firm selected by the director in accordance with Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of the Public Contract Code. A copy of the audit shall be delivered to the director within 30 days after completion.
Any money that is deposited pursuant to Section 232, which the director determines is available for investment, may be invested or reinvested in any of the securities described in Article 1 (commencing with Section 16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code.
The moneys in the trust fund shall be disbursed only to pay for costs arising from unanticipated occurrences associated with administering self-funded programs. These costs shall include, but are not limited to: attorney costs related to litigation; workers’ compensation costs; unemployment costs; phaseout costs of existing programs; and temporary funding for programs that are implementing a fee increase. Any program using the moneys from the trust fund shall repay the trust fund based on a schedule approved by the director.
In addition to the costs specified above, the director may impose a charge in the amount necessary to cover the department’s costs in administering this article.
This article shall be liberally construed. If any provision of this article or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the article that can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.
ARTICLE 3. Interdepartmental Expenses [241. - 243.]
The secretary may charge a bureau, division, board, or other agency of the department that is supported other than by the appropriations from the General Fund its proportionate share of the administrative expense of the department, or a share in an amount that is computed to reasonably compensate the department for the administrative services that are rendered by it.
Apportionment of the expenses shall be made and determined by the secretary, subject to the approval of the Director of Finance. The proportionate or computed share charged to the Department of Food and Agriculture Fund shall not exceed 5 percent of the total departmentwide expenditures and the share shall further be limited to only those costs for which direct benefits are derived by the programs against which the costs are being charged.
Apportionment of the expenses associated with information technology, legal services, human resources, and the Office of Civil Rights, as specified in the annual Budget Act, shall be excluded from the 5-percent limitation described in subdivision (a).
Any money which is charged and received by the department pursuant to this article shall be remitted to the State Treasury for credit to the current appropriation from the General Fund for the support of the department. The sum so remitted shall be available for expenditure for the support of the department.
ARTICLE 4. License and Registration [261. - 263.]
Unless otherwise specifically provided in this code, any license or registration which is issued pursuant to this code expires whenever the bond which is required of a licensee or registrant under this code lapses or is canceled. If, however, the bond is canceled as a result of the retirement from business of the bonding company and the director is satisfied that the licensee is solvent, he may continue the license or registration for a period of not to exceed 30 days to enable the licensee or registrant to secure a new bond.
Notwithstanding any provision of law, a license, registration, certificate, permit, exception, or other indicia of authority issued by the department under any provision of this code is forfeited by operation of law prior to its expiration date when one of the following events occurs:
The holder surrenders the indicia to the department.
The holder dies.
The partnership holder dissolves.
The holder of a significant financial interest in a corporation transfers his or her interest to another person or entity, regardless of relationship. The secretary shall determine what constitutes a “significant financial interest” for the purposes of this subdivision.
Notwithstanding any provision of law, the department may deny an application for, or may condition, suspend, or revoke, any license, registration, certificate, permit, exception, or other indicia of authority issued by the department under any provision of this code upon any of the following grounds:
Violation by the holder or applicant of any section of this code, or any rule or regulation promulgated under this code, that expressly applies to the license, registration, certificate, permit, exception, or other indicia of authority denied, conditioned, suspended, or revoked.
Violation by a holder’s or applicant’s agent, employee, or contractor, or by an organization or entity in which the holder or applicant holds a significant financial interest, of any section of this code, or any rule or regulation promulgated under this code, that expressly applies to the license, registration, certificate, permit, exception, or other indicia of authority denied, conditioned, suspended, or revoked, under circumstances in which the licensee knew or should have known of and failed to take reasonable measures to prevent, the violation, or failed to report the violation to the department upon learning of it.
The conviction of the holder or applicant of a crime that includes as one of its elements the financial victimization of another.
A false or misleading statement by a holder or applicant that the holder or applicant knew or should have known to be false or misleading, directed to any official of any government concerning the scope of the license, registration, certificate, permit, exception, or other indicia of authority, the standards under which it was issued, or the contents of the application for licensure, registration, certification, the permit, exception, or other indicia of authority.
The department may also temporarily suspend any license, registration, certificate, permit, exception, or other indicia of authority prior to hearing, if the department has prima facie evidence that the health and safety of persons, growing crops, or livestock are in imminent danger.
ARTICLE 5. Collection [281. - 284.]
The director may direct suit in the name of the people of the state, as plaintiff, to be brought for the recovery of any license or other fee against any person required to take out a license or pay any fee pursuant to this code that fails, neglects, or refuses to take out such license or pay such fee, or that, without such license or payment of such fee, carries on or attempts to carry on the business or do any act for which such license or payment of such fee is required. Notwithstanding Section 483.010 of the Code of Civil Procedure, in such case a writ of attachment may be issued in the manner provided by Title 6.5 (commencing with Section 481.010) of Part 2 of the Code of Civil Procedure.
In cases where the director may perform sampling, grading, testing, inspection, or certification services in relation to any agricultural product, or identification services in relation to root or top stock of any fruit or nut trees, and fix reasonable fees to pay the costs necessary to perform the services he may collect such fees in advance of performing the services. He need not, however, do so if, in his opinion, the benefit of such services would be lessened by advance payment.
In lieu of collecting fees in advance pursuant to Section 282, the director may, if he deems it necessary, accept a bond which guarantees payment of the fees. The bond shall be satisfactory to the director.
If the director finds that any amount not in excess of five dollars ($5) which is due pursuant to this code is so small as not to justify the cost of its collection or believes that its collection is improbable, he may remove the amount which is due from the records of the department. He shall not, thereafter, be held accountable for its collection.
ARTICLE 6. Refunds [301. - 306.]
As used in this article, “fee” includes, but is not limited to, any application fee, license fee, permit fee, inspection fee, certification fee, registration fee, identification fee, analysis fee, or certificate fee.
Notwithstanding any other provision of law, the director may authorize the refund of any money which is received or collected by the department in the payment of any fee, assessment, or tax.
A refund may be made in whole or in part in any of the following instances:
The purpose for a fee cannot lawfully be accomplished for the person that paid the fee through no fault of such person.
A refund of a fee is requested by the payer before any examination or inspection has been performed or service rendered by the department for the payer.
The payment of a fee, assessment, or tax represents an overpayment, payment in duplicate, payment in error in law, or payment through error of the payer or the department.
The fiscal officer of the department shall make payment of any refund pursuant to this article if the director prepares a voucher which sets forth the facts which pertain to the refund and authorizes its payment.
If any money which is to be refunded has been deposited in the State Treasury, the State Controller, upon receipt of a claim which is filed by the department, shall draw his warrant for the payment of the refund from the fund to which the money was credited.
If the director finds that the amount of any refund is less than ten dollars ($10) or an amount established pursuant to Section 16302.1 of the Government Code, the director may retain the amount for use for the same purpose for which the original payment was made, unless demand for the payment of a refund is made within six months after the determination that a refund is due. If a demand is made, the refund shall be paid.
CHAPTER 3. Other Powers and Duties [401. - 593.]
ARTICLE 1. General Provisions [401. - 412.]
The department shall promote and protect the agricultural industry of the state.
The department shall also seek to enhance, protect, and perpetuate the ability of the private sector to produce food and fiber in a way that benefits the general welfare and economy of the state. The department shall also seek to maintain the economic well-being of agriculturally dependent rural communities in this state.
The department shall prevent fraud and deception in any of the following:
Packing or labeling, or in any phase of the marketing, of any agricultural product which is governed by this code.
Labeling and marketing of any commodity that is governed by this code, which is sold to producers for use in the production of crops.
The department shall prevent the introduction and spread of injurious insect or animal pests, plant diseases, and noxious weeds.
The department shall execute the provisions of this code, except as otherwise provided, and of other laws administered by it.
With the prior approval of the Department of Fish and Wildlife and the State Department of Public Health, the department may reproduce or distribute biological control organisms that are not detrimental to the public health and safety that are known to be useful in reducing or preventing plant or animal damage due to pests or diseases.
The department shall not engage in the production of beneficial organisms when those organisms are available in sufficient amounts for purchase from commercial sources.
The department shall require reports from commissioners.
The director may adopt such regulations as are reasonably necessary to carry out the provisions of this code which he is directed or authorized to administer or enforce.
The director may enter upon any premises to inspect the premises or any plant, appliance, or thing which is on such premises.
Notwithstanding any other law, the department by rule or regulation may provide for the issuance and renewal on a two-year basis of licenses, certificates of registration, or other indicia of authority issued pursuant to this code by the department or any division, office, or other entity within the department.
The department may, by rule or regulation, set the fee for a two-year license, certificate of registration, or other indicia, not to exceed twice the annual fee for issuance or renewal set by statute.
It is the intent of the Legislature that the Department of Food and Agriculture, in cooperation with appropriate county officials and industry representatives, develop mutually satisfactory sources of nonstate funding to augment budget programs in the areas of county agricultural commissioners and county sealers of weights and measures.
The Department of Food and Agriculture shall supply the Department of Water Resources with a forecast that estimates the amount of production of food, fiber, livestock, and other farm products.
As part of the forecast, the Department of Food and Agriculture’s assumptions shall be based upon 20-year estimates that include, but are not limited to, the following data:
Land use conversion rates and the amount of land available for agricultural production.
The growing need for food, fiber, livestock and other farm products as the state’s and the nation’s populations grow.
Implementation of irrigation technology and other on-farm water conservation measures.
Advances in crop yields and production techniques.
Alternate uses of crops.
The department shall include an additional table in the forecast that estimates the agricultural water needs based upon food security considerations that include, at a minimum, the following:
To the extent feasible, the Department of Food and Agriculture may cooperate with the Department of Finance, the University of California, and other institutions and organizations in obtaining information for the forecasts.
The Department of Food and Agriculture shall furnish the forecast to the Department of Water Resources for estimating related water usage, as well as to the Chairs of the Assembly Committee on Agriculture, the Assembly Committee on Water, Parks, and Wildlife, and the Senate Committee on Agriculture and Water Resources. The Department of Water Resources shall include this information in Bulletin 160.
The Legislature finds and declares that a diversity of dairy methane management practices, including anaerobic digesters and nondigester dairy methane management strategies, can effectively reduce greenhouse gas emissions. Nondigester dairy methane management strategies include, but are not limited to, scrape conversion, open solar drying and composting of manure onsite, conversion of dairy operations to pasture-based management, and solid separation technologies.
For purposes of this section, the following terms have the following meanings:
“Conversion of dairy operations to pasture-based management” means dairying systems where the dairy cows spend a portion of their time grazing on fields in which some or all of the manure is deposited and left in the field and decomposes aerobically, which avoids methane emissions.
“Open solar drying and composting of manure onsite” means the collection, storage, and drying of dairy manure in a nonliquid environment.
“Scrape conversion” means the conversion of flush water lagoon systems to solid-scrape or dry manure management practices, including vacuum technologies for manure management.
“Solid separation technologies” means technologies designed to separate liquid components of manure from minerals and organic components, for the purposes of reducing methane emissions.
ARTICLE 2. Services [431. - 436.]
The department shall collect and preserve books, pamphlets, periodicals, and other documents which contain information that relates to agriculture.
The department shall collect and prepare statistics, charts, films, photographs, and other illustrative or exhibit material and information which shows the actual condition and progress of agriculture in this state and elsewhere.
The department shall correspond with agricultural societies, colleges, schools, the commissioners, and with all other persons who are necessary to secure the best results to agriculture in this state.
The department shall issue and cause to be printed and distributed to the commissioners, and to such other persons as it may deem proper, bulletins, charts, photographs or other illustrative material or statements which contain all the information which is best adapted to advance the interest, business, and development of agriculture in the state. The department may broadcast such portions of the illustrative material or statements as are adapted to give effect to this code. It may exhibit or display such data and material as have been collected or prepared, and may incur expenses which are necessarily incidental to the exhibit or display of such data and material.
The director may establish an identification record service for parent root and top stock of fruit and nut trees. He shall establish a reasonable schedule of fees for such service which is based upon the approximate cost of the service. Upon application of any person and the payment of the proper fees, the director shall assign to parent stock an identifying code number and make an appropriate record of such number.
Any money which is received by the department pursuant to Section 435 shall be paid into the State Treasury and be credited to the Department of Food and Agriculture Fund. Any money in the Department of Food and Agriculture Fund which was derived pursuant to that section may be expended for the administration and enforcement of any or all of the following which relate to nursery stock, notwithstanding any other provision of law which limits the expenditure of the money to some specific purpose or to the administration or enforcement of some specific section, article, chapter, or law:
Section 435.
Article 7 (commencing with Section 5821) of Chapter 8 of Part 1 of Division 4.
Chapter 1 (commencing with Section 6701) of Part 3 of Division 4.
Any other provision of Division 4 (commencing with Section 5001), which relates to nursery stock, except Article 5 (commencing with Section 6001) of Chapter 9 or Chapter 10 (commencing with Section 6101) of Part 1, Part 5 (commencing with Section 8401), or Part 6 (commencing with Section 8801) of Division 4.
Chapter 5 (commencing with Section 53301) of Division 18.
ARTICLE 3. Surveys and Investigations [461. - 462.]
The department may conduct surveys or investigations of any nursery, orchard, vineyard, agricultural commodity, agricultural appliance, farm, or other premises within the state liable to be infested or infected with any pest as defined in Section 5006 or disease, including any infectious, transmissible, and contagious diseases of livestock and poultry, for the purpose of detecting the presence of, or determining the status of, the pest or disease. The director and the county agricultural commissioner shall consult concerning these surveys or investigations and in the conduct or implementation of any control or eradication activity when the provisions of this code provide joint responsibilities in connection with the pest or disease.
The director may enter into an agreement with one or more organizations representing growers, shippers, manufacturers of agricultural commodities, nonprofit trade associations whose members market agricultural commodities, federal or state marketing order boards, and state commissions which are organized pursuant to this code, operate in California, and actively engage in the marketing of agricultural commodities, whereby research will be conducted by public or private agencies to determine methods, techniques, or criteria for agricultural commodities to qualify for entrance into foreign markets.
The agreement shall specify that the state will provide up to 50 percent of the funds necessary for the research and the other parties to the agreement will provide an amount equal to or greater than that provided by the state.
State funds shall be available for expenditure for the purposes of this section upon appropriation therefor in the Budget Act or other statute.
ARTICLE 4. Intergovernmental Cooperation [481. - 486.]
The department may, with the approval of the Governor, cooperate with officials of the United States Department of Agriculture or with officials of other states in the conduct of pest or disease investigations outside of this state in the interest of the protection of the agricultural industry of this state from any pest or disease which is not generally distributed in this state.
The department may enter into cooperative agreements with the United States Department of Agriculture to carry out a program for the prevention and control of avian influenza. The department shall, in accordance with the Administrative Procedure Act, adopt any regulations necessary to implement program requirements set out in the agreement.
The director may enter into cooperative agreements with individuals, associations, boards of supervisors, and with departments, divisions, bureaus, boards, or commissions of this state or of the United States for the purpose of eradicating, controlling, or destroying any infectious disease or pest within this state.
The director may enter into cooperative agreements with boards of supervisors or commissioners for the purpose of administering and enforcing this code.
The director may enter into cooperative agreements with boards of supervisors and commissioners for the purpose of administering and enforcing any activity, duty, or responsibility under this code in addition to those activities, duties, or responsibilities specifically designated or authorized to be carried out by the commissioners. The cooperative agreement shall provide for payment to the county or commissioner for the county’s or the commissioner’s performance under the agreement except where payment is provided for elsewhere in this code. Where this code requires the director to perform an activity, duty, or responsibility, an agreement entered into under this subdivision does not relieve the director of ultimate responsibility for that performance.
The director may arrange for the services of any individual employed by the United States, the state, or a county on a collaborative basis and allow him a reasonable fee and necessary expenses which are incurred when serving the department in a collaborative capacity.
The director may enter into cooperative agreements with departments, divisions, bureaus, boards, or commissions of the United States for the purpose of administering meat or poultry meat inspection programs to protect the public from uninspected, adulterated, or misbranded meat and poultry meat and products thereof.
The secretary may enter into cooperative agreements with private entities, and with boards, bureaus, commissions, or departments of this state or of the United States, for the purpose of administering compensation, conservation, disaster assistance, economic assistance, education, environmental enhancement, indemnification, market promotion, research, and similar programs that promote and enhance agriculture.
Upon appropriation by the Legislature, the secretary may receive and expend federal funds and any nonstate matching funds made available to the department for the purposes specified above via grant, interagency agreement, or otherwise, and these funds shall be administered in accordance with Section 221.
Grant awards shall be made by the department on a competitive basis established by the department wherever possible.
Any grant awarded on an alternative basis that is not competitive shall comply with all applicable state requirements, orders, and guidelines.
Decisions of the secretary relating to the award of grants shall be final.
Procedures, forms, and guidelines established for these grant programs, including the application process, are exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
If the secretary expends funds or awards grants for the study of protocols for crops to meet standards for transport out of a quarantine area, the following shall apply:
Primary consideration shall be given to crops that are most at risk from the imposition of a quarantine and for which protocols do not currently exist, as long as the application otherwise meets reasonable scientific standards.
The department may consult with individuals or representatives of the agriculture industry, and academic or scientific individuals, or organizations to establish criteria and assist in the recommendation of any expenditure of funds or the award of grants.
Notwithstanding Section 482, the secretary may not enter into a cooperative agreement with a county of the first class, as defined in Section 28022 of the Government Code, for agricultural inspector services, if the cooperative agreement requires that the county provide year-round services, unless not less than 66 percent of the agricultural inspector aides not afforded protections as permanent employees employed under the cooperative agreement are afforded protections as permanent employees under the county’s civil service or other personnel system.
ARTICLE 4.5. Food Biotechnology Task Force [491. - 492.]
The Legislature finds and declares the following:
Consumers have an interest in being informed about the benefits and potential quantifiable risks to their health from products they consume. This information must be grounded in sound science, must use informative and effective communications, and shall be consistent with other production technologies.
As new advances in biotechnology, including transgenic plants, are developed, it is important to understand the opportunities that new technologies offer to consumers, farmers, the livestock industry, food processors, and the environment, as well as to evaluate the potential risks.
Under the existing regulatory framework for biotechnology, the United States Food and Drug Administration has the federal authority to assure that food and pharmaceutical development using biotechnology protects public health, the United States Environmental Protection Agency has the authority to review environmental issues including bioengineered pesticides, and the United States Department of Agriculture has the responsibility to regulate the introduction of genetically modified plants into the agricultural environment. Careful review of existing oversight responsibility helps in understanding the regulatory framework governing the approval of biotechnology products and will help clarify California’s role in the endeavor.
California is the leading agricultural state in the country, producing 350 commodities and farm gate revenues totaling nearly twenty-seven billion dollars ($27,000,000,000) annually, of which nearly seven billion dollars ($7,000,000,000) is exported. Support for agricultural research based in sound science, and the utilization of modern farming technologies is a key factor leading to California’s strong farm economy and its competitive edge in the world market for agricultural products.
The Legislature hereby creates the Food Biotechnology Task Force. The task force shall be cochaired by the Secretary of California Health and Human Services, and the Secretary of the California Department of Food and Agriculture. The task force shall consult with appropriate state agencies and the University of California. The Department of Food and Agriculture shall be the lead agency.
An advisory committee shall be appointed by the task force to provide input on issues reviewed by the task force. The advisory committee shall consist of representatives from consumer groups, environmental organizations, farmers, ranchers, representatives from the biotechnology industry, researchers, organic farmers, food processors, retailers, and others with interests in the issues surrounding biotechnology.
The Department of Food and Agriculture shall make funds available to other agencies to accomplish the purposes of this article and shall contract, where appropriate, with the California Council on Science and Technology, the University of California, or other entities to review issues evaluated by the task force or support activities of the advisory committee.
The task force may request particular agencies to lead the effort to evaluate various factors related to food biotechnology. As funding becomes available, the task force shall evaluate factors including all of the following:
Definition and categorization of food biotechnology and production processes.
Scientific literature on the subject, and a characterization of information resources readily available to consumers.
Issues related to domestic and international marketing of biotechnology foods such as the handling, processing, manufacturing, distribution, labeling, and marketing of these products.
Potential benefits and impacts to human health, the state’s economy, and the environment accruing from food biotechnology.
Existing federal and state evaluation and oversight procedures.
An initial sum of one hundred twenty-five thousand dollars ($125,000) is hereby appropriated from the General Fund for disbursement to the Department of Food and Agriculture. It is the intent of the Legislature to make further funds available to accomplish the purposes contained in this article.
ARTICLE 5. Sustainable Agriculture [500. - 501.]
Pursuant to subdivision (d) of Section 821, it is the intent of the Legislature that programs at the University of California designed to promote research on, and facilitate adoption of, sustainable agricultural practices, including, but not limited to, research, teaching, and outreach in the areas of sustainable farming systems, biologically integrated farming systems, organic agriculture, small farms, agroecology systems, biointensive integrated pest management, and biological pest control shall be adequately funded through the annual budget process to ensure the programs’ ongoing ability to respond to the needs of all sectors of California’s agricultural industry. It is the further intent of the Legislature that the sustainable agricultural practices, methods, and materials identified and developed by these programs be incorporated into appropriate programs of the state and the university to maximize the access of California farmers and ranchers to the information needed to adopt and implement these measures.
Provide adequate and ongoing funding to programs at the University of California designed to promote research on, and facilitate adoption of, sustainable agricultural practices, including, but not limited to, research, teaching, and outreach in the areas of sustainable farming systems, biologically integrated farming systems, organic agriculture, small farms, agroecology systems, biointensive integrated pest management, and biological pest control to ensure the programs’ ongoing ability to respond to the needs of all sectors of California’s agricultural industry.
Fully incorporate the sustainable agricultural practices, methods, and materials identified and developed by the programs enumerated in this article into all appropriate programs of the university to ensure that California farmers and ranchers have maximum access to the information needed to adopt and implement these measures.
ARTICLE 6. Farmer Equity Act of 2017 [510. - 515.]
This article shall be known, and may be cited, as the Farmer Equity Act of 2017.
The Legislature finds and declares all of the following:
California recognizes the importance of investing in the long-term prosperity of our food and farming system, starting with our farmers.
Farmers of color have historically not had equitable access to land and other resources necessary to conduct farming in California, and that legacy of prejudice persists.
Female farmers represent less than a quarter of all farmers in the state. Only 2 percent of California farmers are women of color, according to the United States Department of Agriculture Census of Agriculture.
Socially disadvantaged farmers and ranchers tend to farm fewer acres but have a greater diversity of crops in California.
According to the United States Department of Agriculture Census of Agriculture, on average, socially disadvantaged farmers and ranchers in California receive less in federal payments than their White counterparts and also earn less.
Despite the barriers, an increasing number of socially disadvantaged farmers and ranchers are attempting to farm throughout California, across rural and urban settings.
Existing federal agricultural policies have failed to provide sufficient and appropriate technical assistance and financial support, including farmer cooperative creation, for socially disadvantaged farmers and ranchers.
It is therefore the intent of the Legislature that the secretary should support socially disadvantaged farmers and ranchers and include this support in the department’s vision and its relevant policies.
For purposes of this article, the following terms have the following meanings:
“Secretary” refers to the Secretary of Food and Agriculture.
“Socially disadvantaged farmer or rancher” means a farmer or rancher who is a member of a socially disadvantaged group.
“Socially disadvantaged group” means a group whose members have been subjected to racial, ethnic, or gender prejudice because of their identity as members of a group without regard to their individual qualities. These groups include all of the following:
African Americans.
Native Indians.
Alaskan Natives.
Hispanics.
Asian Americans.
Native Hawaiians and Pacific Islanders.
“Urbanized area,” as used by the United States Census Bureau, refers to a population of at least 50,000 people.
The department shall ensure the inclusion of socially disadvantaged farmers and ranchers, including socially disadvantaged farmers and ranchers in urbanized areas, in the development, adoption, implementation, and enforcement of food and agriculture laws, regulations, and policies and programs.
The secretary shall create a position within the department’s executive office to support the efforts of this section and Section 514. The person appointed to that position shall report to the secretary.
The department shall do all of the following:
Consult with the Secretaries of the California Environmental Protection Agency, the Natural Resources Agency, the California Housing and Homelessness Agency, and the California Health and Human Services Agency, and all other interested members of the public and private sectors of the state on opportunities for socially disadvantaged farmers and ranchers and to coordinate state programs.
Disseminate information regarding opportunities provided by, including, but not limited to, the United States Department of Agriculture, the United States Environmental Protection Agency, the General Accounting Office, the Office of Management and Budget, and other federal agencies for socially disadvantaged farmers and ranchers.
Evaluate boards, committees, commissions, and advisory panels created pursuant to this code for opportunities for inclusion of socially disadvantaged farmers and ranchers, except those established pursuant to Article 8 (commencing with Section 58841) of Chapter 1 of Part 2 of Division 21, Article 7 (commencing with Section 59721) of Chapter 2 of Part 2 of Division 21, and Division 22 (commencing with Section 63901).
This section shall become operative on July 1, 2026.
On or before January 1, 2020, the department shall submit a report to the Governor and the Legislature on efforts to serve socially disadvantaged farmers and ranchers and all female farmers and ranchers in California. The report shall include recommendations to the Governor and the Legislature on how to improve processes to include socially disadvantaged farmers and ranchers.
The report to be submitted to the Legislature pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.
The department, in consultation with the Black, Indigenous, and People of Color (BIPOC) Producer Advisory Committee and the Small-Scale Producer Advisory Committee, shall establish the Regional Farmer Equipment and Cooperative Resources Assistance Pilot Program to provide financial and technical assistance to support regional farm equipment sharing and enhance cooperative benefits for socially disadvantaged farmers and ranchers and limited resource farmers and ranchers, with preference provided under the program in accordance with subdivision (d) of Section 93540 of the Public Resources Code.
Activities that are eligible for funding through the program shall include, but are not limited to, all of the following:
Developing and expanding equipment sharing programs for the purchase and repair of tools, equipment, and infrastructure, and that pay all or a portion of associated administrative costs, to do both of the following:
Support environmentally sustainable farming practices, including, but not limited to, practices that promote soil health, water conservation, wildlife and their habitat, and wildfire resilience.
Enhance regional food and fiber systems for socially disadvantaged farmers and ranchers and limited resource farmers and ranchers.
Providing technical assistance and support, including, but not limited to, any of the following:
Training on the use and maintenance of tools, equipment, and infrastructure.
Outreach to ensure direct and meaningful benefits to socially disadvantaged farmers or ranchers and limited resource farmers or ranchers.
Small farm tool demonstrations.
Providing a direct grant to an entity that will assist in cooperative development for farmers.
The entity described in subparagraph (A) shall have relevant cooperative development expertise and shall benefit socially disadvantaged farmers or ranchers and limited resource farmers or ranchers. For purposes of this subdivision, “relevant cooperative development expertise” means the entity shall have a demonstrated record of experience in the planning, formation, and support of agricultural or rural cooperatives.
Entities eligible for financial assistance under the program shall include, but not be limited to, resource conservation districts, the University of California Cooperative Extension, tribes as defined in Section 90100 of the Public Resources Code, farmer cooperatives, and nonprofit organizations.
An application for financial assistance pursuant to paragraph (1) of subdivision (b) shall include, but not be limited to, all of the following information:
A description of the equipment sharing program, including safeguards for the long-term benefits of any tools, equipment, or infrastructure purchased, expected benefits of the equipment sharing program, and the types of farmers or ranchers the applicant aims to serve, including specific outreach that will be provided to socially disadvantaged farmers or ranchers and limited resource farmers or ranchers.
A description of how the equipment sharing program will be maintained after the period of the financial assistance expires.
The Farm Equity Advisor at the department shall ensure that the program meets the objectives of this article.
For purposes of this section, all of the following definitions apply:
“Limited resource farmer or rancher” has the same definition as in Section 760.107 of Title 7 of the Code of Federal Regulations, as that section read on June 17, 2025.
“Program” means the Regional Farmer Equipment and Cooperative Resources Assistance Pilot Program.
For purposes of this section, “financial assistance” does not include a loan.
Subdivisions (a) to (f), inclusive, shall become operative upon the Legislature making an appropriation for purposes of the program.
This section shall remain in effect only until January 1, 2030, and as of that date is repealed.
ARTICLE 7. Poultry and Livestock Diagnostic Laboratories [520. - 531.]
“University,” as used in this article, means the University of California.
It is the intent of the Legislature that the department contract with the Regents of the University of California to operate poultry and livestock disease laboratories pursuant to this article. The central laboratory should be located next to the facilities of the Veterinary Medical Teaching Hospital of the University of California at Davis, in order to take advantage of the expertise of the veterinary specialists.
When a central diagnostic laboratory constructed on the Davis campus of the university is ready for occupancy, the director shall contract with the Regents of the University of California for its School of Veterinary Medicine to establish and operate the California Animal Health and Food Safety Laboratory. The system shall be headed by a director appointed by the Dean of the School of Veterinary Medicine under applicable university hiring rules. The system shall test, examine, and make diagnoses of infectious, nutritional, toxic, metabolic, and other diseases of domestic animals.
The contract executed pursuant to this article shall provide that the university maintain sufficient numbers of laboratories to perform the functions contained in this article. The central diagnostic laboratory shall be established on the Davis campus of the university, and branch laboratories shall be operated as long as these services are best performed at a branch laboratory, considering the cost and quality of services.
A central diagnostic laboratory building to be constructed on the Davis campus of the university adjacent to the facilities of the Veterinary Medical Teaching Hospital, together with the equipment necessary for a modern veterinary diagnostic laboratory, is hereby specifically authorized. The department may include a request for physical facilities planning and working drawings funds in its 1983–84 budget request and for construction funds in the 1984–85 budget request. The funds may be transferred, as appropriate, to the university for planning, working drawings, and construction. Title to the facility shall vest in the Regents of the University of California, and the facility shall be dedicated for use as a veterinary diagnostic laboratory so long as it is needed for that purpose.
Prior to completion of construction of a central diagnostic laboratory on the Davis campus of the university, the director may continue to provide interim laboratory services and to contract with the university for diagnostic services which can be rendered more effectively by the university. In order to assure the orderly transfer of the veterinary diagnostic program from the department to the university, a Transition Veterinary Diagnostic Laboratory Administrative Committee is established. The committee shall consist of the director or his or her designee, who will serve as chairman, the Dean of the School of Veterinary Medicine or his or her designee who will serve as assistant chairman, and two additional members, one appointed by the director and one by the dean. The committee shall advise the department and the university on the operation of the laboratories during the period prior to the diagnostic laboratory system being fully transferred from the department to the university.
After the contract has been executed pursuant to Section 521, the diagnostic functions of the regional laboratories maintained at Petaluma and Sacramento shall be transferred to other laboratories in the system and those two laboratories shall be closed.
The contract shall provide that the university, in consultation with the department, shall establish a schedule of fees to help defray the cost of operation of the laboratories.
The contract shall provide for all of the following services which, when included in the department’s budget, shall be provided without charge:
Services performed in the course of a department-approved investigation of an animal health problem.
Department-approved services provided to regulatory agencies.
The contract shall specify the accounting procedures to be used and any reports necessary to assure compliance with state and university requirements.
It is intended that the contractual arrangement between the university and the department be of long-term duration. The department’s budget for the laboratories shall be reviewed annually.
A Veterinary Diagnostic Laboratory Board is hereby established, consisting of representatives of the livestock and poultry industries and practicing veterinarians who utilize the laboratory service. It shall be appointed by the director in consultation with the Dean of the School of Veterinary Medicine. The Chief of the Bureau of Animal Health of the department, the Assistant Area Veterinarian in Charge for California for the United States Department of Agriculture, and the director of the California Animal Health and Food Safety Laboratory created by this article shall be ex officio members. The board shall advise the university and the department on all aspects of the operation of the laboratories.
A member of the Veterinary Diagnostic Laboratory Board is entitled to be paid his or her actual expenses which are incurred while engaged in performing his or her duties that are authorized by this article.
The budget for the California Animal Health and Food Safety Laboratory shall be established as a line item in the budget of the department. The operating budget requests shall be submitted annually, and requests for funding of construction of facilities and special items of laboratory equipment which cost over one hundred fifty thousand dollars ($150,000) shall be submitted when required. The director shall transfer funds appropriated for operation of the laboratories, for equipment, and for construction of facilities to the university to be managed according to university rules and regulations, and in accordance with the contract between the department and the university.
ARTICLE 8. Sustainable Agriculture [550. - 555.]
This article shall be known and may be cited as the Sustainable Agriculture Research and Education Act of 1986.
The Legislature finds and declares all of the following:
There is a growing movement in California and the nation to change farming techniques by adopting more resource-conserving, energy-efficient systems of agriculture. The objective of these changes is to produce agricultural products that may reduce the use of petrochemicals, improve means of biological pest management, improve soil productivity, improve erosion control, and improve irrigation, cultivation, and harvesting techniques.
Over the long term, adoption of more efficient resource-conserving systems of agricultural production can benefit both the producing and consuming public.
The resolution of many agricultural problems depends on immediate efforts to provide farmers with practices that are both resource conserving and economical for food producers, and to foster food production and distribution methods that reduce dependence on petroleum-based inputs.
The purpose of this article is to promote more research and education on sustainable agricultural practices, such as organic methods, biological control, and integrated pest managements, including the analysis of economic factors influencing the long-term sustainability of California agriculture. This article is intended to foster economically and ecologically beneficial means of soil improvement, pest management, irrigation, cultivation, harvesting, transportation, and marketing for California agriculture based on methods designed to accomplish all of the following:
The control of pests and diseases of agricultural importance through alternatives that reduce or eliminate the use of pesticides and petrochemicals.
The production, processing, and distribution of food and fiber in ways that consider the interactions among soil, plants, water, air, animals, tillage, machinery, labor, energy, and transportation to enhance agricultural efficiency, public health, and resource conservation.
It is the intent of the Legislature that the Regents of the University of California establish the Sustainable Agriculture Research and Education Program to support all of the following:
Competitive grants for research on topics described in Section 552.
The giving of instructions and practical demonstrations in agriculture and imparting information through demonstrations, publications, and otherwise, and for printing and distribution of information in connection with the Sustainable Agriculture Research and Education Program. Where feasible, these demonstrations shall include field research conducted on cooperating farms.
Planning for and management of University of California farmlands committed to supporting long-term continuous research in sustainable agricultural practices and farming systems.
Those eligible to apply for competitive grants under subdivision (a) shall include individuals affiliated with public and private institutions of higher education and with nonprofit tax-exempt organizations.
All grant applications shall be subject to peer review for scientific merit.
In awarding grants, preference shall be given to projects that include field evaluation and offer the greatest potential for measurable progress toward attaining the long-term goals pursuant to Section 552.
If the Sustainable Agriculture Research and Education Program is established by the regents, the President of the University of California shall establish and appoint a Program Advisory Committee and a Technical Advisory Committee.
The duties of the Program Advisory Committee shall include recommending goals and priorities for this program, including, but not limited to, reviewing the priority of grant applications.
The Program Advisory Committee shall be composed of a majority of individuals representing agriculture, as well as representatives from government, public organizations, and institutions of higher education, all of whom are knowledgeable regarding the issues and practices of sustainable agriculture.
The duties of the Technical Advisory Committee shall include making recommendations about the scientific merit of grant applications submitted pursuant to Section 553.
The Technical Advisory Committee shall be composed of faculty and staff of the University of California and other experts from outside the university.
Members of the Program Advisory Committee and Technical Advisory Committee who are not employed by the University of California shall be appointed for a period not exceeding three years and receive compensation for expenses incurred in the performance of their duties according to applicable university regulations and guidelines.
If the Sustainable Agriculture Research and Education Program is established by the regents, it shall be established from existing resources.
ARTICLE 8.5. The Cannella Environmental Farming Act of 1995 [560. - 570.]
This article shall be known as the Cannella Environmental Farming Act of 1995.
The Legislature finds and declares the following:
California agriculture helps to feed the world and fuel our economy. Agriculture provides one out of every 10 jobs in California, and our state has led the nation in total farm production every year since 1948. During 1993, California’s 76,000 farms generated nearly $20 billion in cash receipts and another $70 billion in economic activity.
Many farmers engage in practices that contribute to the well-being of ecosystems, air quality, and wildlife and their habitat. Agriculture plays a pivotal role in preserving open space that is vital to the environment. Seventy-five percent of the nation’s wildlife live on farms and ranches. Freshwater streams and stockponds on farms and ranches provide habitat to millions of fish. Corn, wheat, rice, and other field crops provide bountiful food and habitat for deer, antelope, ducks, geese, and other wildlife.
Environmental laws should be based on the best scientific evidence gathered from public and private sources.
Best scientific evidence should include the net environmental impact provided by agriculture.
Additional research is necessary to adequately inventory the impact that agriculture has on the environment. Recognition should be afforded to agricultural activities that produce a net benefit for the environment, which is consistent with the growing trend of providing incentives for the private sector to undertake economic activities that benefit the environment.
Unless the context otherwise requires, the following definitions govern the construction of this article:
“Agricultural activities” means those activities that generate products as specified in Section 54004.
“Department” means the Department of Food and Agriculture.
“Panel” means the Scientific Advisory Panel on Resilient and Sustainable Agriculture.
“Secretary” means the Secretary of Food and Agriculture.
The department shall establish and oversee a sustainable agriculture program. The program shall provide research, technical assistance, and incentive grants to promote agricultural practices that support climate resilience for farms and ranches and the well-being of ecosystems, air quality, and biodiversity.
The department may assist in the compilation and synthesis of scientific evidence from public and private sources, including the scientific community, industry, conservation organizations, and federal, state, and local agencies identifying the net environmental impacts and opportunities that agriculture creates for achieving sustainability goals. The department shall serve as the repository of this information and provide it to federal, state, and local governments, as needed.
The department shall conduct the activities specified in this article with existing resources, including recurring funding and one-time administrative funds, to the extent they are available.
The secretary shall convene an 11-member Scientific Advisory Panel on Resilient and Sustainable Agriculture to advise the secretary on the implementation of research, incentive, and technical assistance grant programs for sustainable agriculture, and to assist federal, state, and local government agencies, as appropriate or necessary, on issues relating to the impact of agricultural practices on the climate, air, water, and biodiversity to do the following:
Review data and compile the best available science on the impact that agriculture has on the environment and local communities and recommend to the secretary and appropriate state agencies the best available science on environmental impacts of agriculture, and practices and policies based on that information to advance the goals of this article, including Section 569.
Research, review, and comment on data upon which proposed environmental policies and regulatory programs are based to ensure that the environmental impacts of agricultural activities are accurately portrayed and to identify incentives that may be provided to encourage agricultural practices with environmental benefits.
Assist government agencies to incorporate policies and practices identified pursuant to paragraph (1) into environmental regulatory programs.
The panel shall consist of members of the public that represent scientific expertise in sustainable agriculture and members of state agencies that represent expertise in programs and policies related to agriculture. Of the members first appointed to the panel, two shall serve for a term of two years and three shall serve for a term of three years, as determined by lot. Thereafter, members shall be appointed for a term of three years, limited to two terms. The members shall be appointed as follows:
Seven members shall be appointed by the secretary as follows:
Four members shall have a minimum of five years of scientific training and experience in the field of agriculture, of which at least one member shall have training and field experience in on-farm management practices that reduce greenhouse gas emissions, sequester carbon, or both.
Two members shall be producers, of which at least one member shall be certified as a producer pursuant to federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.).
At least one member shall have technical expertise in agricultural conservation planning and management.
Two members shall be appointed by the Secretary for Environmental Protection. One shall have a minimum of five years of training and experience in the field of human health or environmental science, and one shall have expertise in greenhouse gas emissions reductions practices related to agriculture.
Two members who have a minimum of five years of training and experience in the field of resource management shall be appointed by the Secretary of the Natural Resources Agency. One member shall additionally have expertise in climate change adaptation and climate change impacts in the agricultural sector.
The secretary may also appoint, in consultation with the panel, ex officio nonvoting members to the panel.
The panel may establish ad hoc committees, which may include professionals, scientists, or representatives of nongovernmental entities, to assist it in performing its functions.
The State Air Resources Board shall consult with the secretary and the panel, as appropriate, in developing the quantification methods described in subdivision (b) of Section 16428.9 of the Government Code as it relates to the demonstration and quantification of on-farm greenhouse gas emissions reductions.
The department, in consultation with the panel, shall establish and oversee a Healthy Soils Program. The program shall seek to optimize climate benefits while supporting the economic viability of California agriculture by providing incentives, including, but not limited to, loans, grants, research, and technical assistance, and educational materials and outreach, to farmers whose management practices contribute to healthy soils and result in net long-term on-farm greenhouse gas benefits. The program may also include the funding of on-farm demonstration projects that further the goals of the program.
The department, in consultation with the panel, may determine priorities for the program and give priority to projects that occur in and benefit disadvantaged communities identified pursuant to Section 39711 of the Health and Safety Code, show promise of being replicable in other parts of the state, or provide environmental and agronomic cobenefits, such as improved air and water quality, improved crop yield, and reduced soil erosion.
The panel shall also advise the department on scientific findings, program framework, guidelines, grower incentives, and providing technical assistance.
If the department elects to fund on-farm demonstration projects described in paragraph (1), the department, in consultation with the panel, shall establish a technical advisory committee to review on-farm demonstration project applications for scientific validity and the proposed project’s potential to achieve greenhouse gas benefits.
The department shall implement the program and quantify greenhouse gas emissions reductions in accordance with the funding guidelines developed by the State Air Resources Board pursuant to Section 39715 of the Health and Safety Code and the quantification methods developed by the State Air Resources Board pursuant to Section 16428.9 of the Government Code.
The department may pursue public and private sources to support the Healthy Soils Program.
To the extent funds are available, the department may provide support to the program, including, but not limited to, technical assistance, education, and outreach.
For purposes of this section, “panel” means the Scientific Advisory Panel on Resilient and Sustainable Agriculture.
For purposes of the Healthy Soils Program, the following terms have the following meanings:
“Greenhouse gas benefits” means greenhouse gas emissions source reduction or carbon sequestration.
“Healthy soils” means soils that enhance their continuing capacity to function as a biological system, increase soil organic matter, improve soil structure and water- and nutrient-holding capacity, and result in net long-term greenhouse gas benefits.
“On-farm demonstration projects” means projects that incorporate farm management practices that result in greenhouse gas benefits and have outreach goals, research goals, or both.
There is hereby created the Climate Smart Agriculture Account in the Department of Food and Agriculture Fund, which shall consist of moneys made available from federal, state, industry, philanthropic, and private sources.
Notwithstanding Section 13340 of the Government Code, the Climate Smart Agriculture Account is hereby continuously appropriated without regard to fiscal years to the department to carry out the purposes of this article.
Notwithstanding any other law, the Controller may use the moneys in the Climate Smart Agriculture Account for cash flow loans to the General Fund as provided in Sections 16310 and 16381 of the Government Code. Any such loan shall be exempt from paragraph (2) of subdivision (b) of Section 16310 of the Government Code. Interest shall be paid on all moneys loaned to the General Fund and shall be computed at a rate determined by the Pooled Money Investment Board to be the current earning rate of the account. This subdivision shall not authorize any transfer that would interfere with the carrying out of the object for which the account was created.
For any fiscal year in which moneys are received into or expended from the Climate Smart Agriculture Account, the department, no later than January 10 following the close of the fiscal year, shall submit to the Legislature an overview of the account’s income and expenditures.
An overview to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
For purposes of this section, the following definitions apply:
“Programs” means the Healthy Soils Program established pursuant to Section 569, the Alternative Manure Management Program, and the State Water Efficiency and Enhancement Program established by the department from moneys made available pursuant to Chapter 2 of the Statutes of 2014.
“Technical assistance” means outreach, education, training, conservation, agricultural planning, project planning, project design, grant application assistance, grant writing, matching funds coordination, translation and interpretation, project implementation support, facilitating environmental compliance, grant management assistance, project completion verification, outcome monitoring, case study development, and project reporting assistance provided to a farmer or rancher to improve their successful participation in the programs.
“Technical assistance providers” means nonprofit organizations, groundwater sustainability agencies, irrigation districts, resource conservation districts, the University of California Cooperative Extension, and California public colleges and universities with demonstrated technical expertise in designing and implementing agricultural management practices to achieve the purposes identified in subdivision (b).
The secretary shall make available not less than 5 percent of the funds appropriated to the department for the programs, but not more than 20 percent, for technical assistance directly through a technical assistance grant program, or indirectly through a block grant program that includes funding for technical assistance. The department shall award funds to technical assistance providers for the following purposes:
To support farmers and ranchers in the application process for grants from the programs and implementation of funded projects, prioritizing that technical assistance to farms and ranches that are 500 acres or fewer. Technical assistance funding may be used to provide assistance over multiple incentive funding cycles.
To provide general planning and training for climate-smart and sustainable agriculture, defined as agricultural practices that support reducing greenhouse gas emissions, sequestering carbon, conserving water and other resources, managing nutrients and pests, and supporting biodiversity.
To lease, purchase, or repair farming, ranching, and food processing equipment that can be centrally housed with the technical assistance provider and shared regionally with producers.
The department may establish criteria and guidelines for technical assistance providers to qualify to receive funds pursuant to subdivision (b) to provide technical assistance. The department shall coordinate grant program outreach with the Natural Resources Conservation Service of the United States Department of Agriculture. The department shall do all of the following:
Allow direct project costs and a percentage of overhead expenses, to be determined by the secretary, to be funded as part of the grant awards.
Allow a percentage of funding, to be determined by the secretary, to support training and capacity building within technical assistance provider organizations and coordination between organizations to improve assistance. This shall include staff onboarding, training, and continuing education in climate-smart and conservation agricultural practices and planning.
Support information sharing among technical assistance providers, the department, and other relevant stakeholders for the continuous improvement of programmatic guidelines, application processes, and relevant climate change and agricultural research.
Allow equipment sharing costs funded as part of grant awards to include developing and expanding equipment sharing programs, including, but not limited to, the purchase and repair of tools, equipment, training, and outreach costs associated with the shared equipment within the grant term.
Consult with the Scientific Advisory Panel on Resilient and Sustainable Agriculture on grant program design, guidelines, and outreach for the technical assistance to improve coordination and information sharing on technical assistance strategies and activities for the department’s programs.
The secretary shall award funds to technical assistance providers of up to two hundred fifty thousand dollars ($250,000) per solicitation, per program served. A block grant applicant or technical assistance provider that demonstrates on its application that the majority of the persons it provides technical assistance to are socially disadvantaged farmers or ranchers shall receive priority consideration for funding to cover translation services, the production of outreach materials, and additional outreach-related expenses.
In administering this section, the department may recover reasonable costs from the funds appropriated for purposes of this section for administrative activities, including, but not limited to, providing staff resources for outreach, development and administration of grant solicitations, grant management, project verification, staff training, program evaluation, and other activities as required.
ARTICLE 9. University of California Center for Pest Research [576. - 585.]
This article shall be known and may be cited as the University of California Pest Research Act of 1990.
The Legislature finds and declares all of the following:
There is a need to develop and apply ecologically based pest management alternatives that are environmentally sound to prevent, control, and eradicate pests.
The continuation of pest control technology in agriculture which relies primarily on synthetic chemicals may be impractical, given the dwindling number of newly registered chemicals, increasing resistance of numerous pests to pesticides, public concern about pesticide residues, and potential threats posed to environmental quality and human health.
To be adequately prepared for existing and new infestations of agricultural pests, California needs to have a means of coordinating and evaluating long-term basic and applied pest research, including the impact of prevention, control, and eradication efforts upon public health and the environment.
The state should facilitate, promote, and support collaborative pest research programs and projects by its agencies, public and private universities, the federal government, and the agricultural industry that work toward developing environmentally sound, ecologically based pest management techniques.
In order to strengthen pest prevention, control, and eradication efforts, it is the intent of the Legislature that an administrative structure be created within the University of California which, in cooperation with California’s public and private universities, the state, the agricultural industry, and persons experienced with environmentally sound, ecologically based pest management alternatives, advances pest research and formulates innovative solutions that better safeguard the environment and public health.
Toward these ends, the Legislature requests that the Regents of the University of California establish a pest research center which will review and prioritize pest-related research activities conducted through the university. It is the intent of the Legislature that University of California programs engaged in pest research shall, when applicable, follow the research priorities established by the center. The center is encouraged to develop research priorities in cooperation with other public and private universities and with state, federal, and county agencies, including, but not limited to, the Department of Food and Agriculture, State Department of Health Services, Department of Forestry and Fire Protection, county agricultural commissioners, United States Department of Agriculture, National Science Foundation, National Institutes of Health, and the agricultural industry, and with environmental and public and occupational health groups.
Unless the context otherwise requires, the definitions in this section govern the construction of this article.
“Center” means the University of California Center for Pest Research.
“Pest” means any of the following pests that are, or are likely to become, dangerous or detrimental to the agricultural or nonagricultural environment of the state.
Any insect, nematode, or weed.
Any form of terrestrial, aquatic, or aerial plant, virus, fungus, bacteria, or other microorganism, except viruses, fungi, bacteria, or other microorganisms on, or in, a living human or any other living animal.
It is the intent of the Legislature that the responsibilities of the center include, but are not limited to, all of the following:
Establishing multidisciplinary, long-term research priorities for the University of California which focus on the application of ecologically based, environmentally sound prevention, control, and eradication practices against pests which pose a significant threat to the welfare of California’s agricultural, forest, or urban settings.
Recommending how pest research funds obtained by the center on or after January 1, 1991, should be allocated within the University of California.
Encouraging the use of biological controls, integrated pest management, sustainable agriculture, and other alternative pest management methods to combat pests, and, thereby, reducing exposure to toxic substances in air, water, and soil.
Supporting basic and applied pest research, including practical field trials and awarding competitive grants, when economically feasible, and other projects administered by the center.
Developing information systems that enable academics, farmers, and public policymakers to quickly analyze and apply pest research data.
Providing information and advice to the department, county agricultural commissioners, the agricultural community, and other interested parties concerning pest prevention and detection through outreach consultation, information dissemination, education services, demonstrations, seminars, and publications.
Printing and distributing information related to center-sponsored and other University of California pest management research projects.
It is the intent of the Legislature that the center, through its director, develop a list of recommended pest management research priorities for the University of California that emphasize and encourage the development and implementation of biological controls, sustainable agriculture, integrated pest management strategies, agroecology, cultural and mechanical practices, and other alternative pest management methods and programs which are ecologically based and environmentally sound.
In developing pest management research recommendations, the center is encouraged to give high priority to alternative practices and strategies that address the reduction, control, or eradication of pests, including exotic pests, which represent the greatest threat to public health and safety or the economy of the state.
In developing recommended exotic pest research priorities, the center is encouraged to give high priority to all of the following:
Development of methods to determine the origin of exotic pests.
Determination of the age and origin of exotic pests.
Geographic analysis of exotic pests to determine place of origin, including acoustical fingerprinting.
Improvements to existing exotic pest insect baits.
An examination of the manner in which the sterile insect technique actually works and improvements in sterile insect technology.
Assessments of wild exotic pest populations, and their regulating biological agents.
Studies of exotic pests and their natural enemies in climates similar to that of the various regions in California.
The exploration and introduction of natural enemies, including those from foreign countries, if necessary.
Computerization of all records of exotic pest captures.
Improvements in detection technology, which include better attractants.
Compilation, maintenance, and updated data about exotic pest research and exotic pest management programs operating within and outside the state.
To the extent that it is economically and scientifically feasible, it is the intent of the Legislature that the center shall award pest research funds obtained by the center on or after January 1, 1991, based upon a competitive application process and peer review. The center is encouraged to give high priority to exotic pest research proposals.
In awarding pest research funds, the center shall give priority to proposals that support pest control methods which use ecologically based and environmentally sound alternatives to pesticides and other chemicals, and eliminate or reduce pesticide use or eliminate or minimize pesticide residues, protect the public health and environment, and satisfy a majority of the following criteria:
Are cost-effective.
Improve the agricultural industry and the state economy.
Do not significantly or extensively duplicate other research.
It is the intent of the Legislature that the University of California appoint a director of the center who is knowledgeable about pest management practices and research and alternative pest management techniques.
The University of California shall prepare an annual report describing the activities of the center, major objectives and significant accomplishments of pest management research and extension programs at the University of California, and obstacles and opportunities toward developing and implementing pest management alternatives in the state. The report shall also include all of the following:
Identification and evaluation of major policy issues and needs in pest management research in California.
Identification of the long-range and short-term management research priorities established by the center.
Identification of environmentally sound, ecologically based alternatives to pesticides that are possible or probable human carcinogens or reproductive toxicants.
A summary and status information on all research proposals submitted through the center. The summary shall include both proposed and approved research projects.
The report shall be submitted to the Legislature not later than October 15 of each year.
If the center is established by the Regents of the University of California, it is the intent of the Legislature that the administrative costs of establishing the center shall be supported from existing resources of the university.
This article shall apply to the University of California only to the extent that the Regents of the University of California, by resolution, make any of these provisions applicable to the university.
ARTICLE 9.5. Coexistence Working Groups [587. - 588.]
The Legislature finds and declares the following:
The Legislature supports the agricultural community’s efforts to promote choices of farming methods, practices, and crops.
The Legislature also recognizes the economic and other value to the State of California in diversified agricultural industries, bolstered by mutually supportive coexistence within and among its sectors; and further appreciates the value and importance of agricultural research for the benefit not only of California’s farming community, but also farmers and people around the world.
When conflicts arise between sectors of agriculture, the secretary may designate agricultural coexistence working groups to work towards conflict resolution.
The members of a coexistence working group shall be appointed by, and serve at the pleasure of, the secretary. Each working group shall be comprised of no more than 10 members of diverse qualifications, who shall serve without compensation and within existing departmental resources, to develop, review, and provide findings and recommendations to the secretary regarding specific issues pertaining to the coexistence of various sectors of agricultural production that present or might present conflicts with one another. Each working group shall be comprised primarily of affected growers or their representatives from a cross section of the interested stakeholders and may also include representatives of related industries, academia, or relevant governmental agencies.
In developing its findings and recommendations for the secretary, a working group may do any of the following:
Recognize the economic, human, and environmental benefits of coexistence among diversified agricultural industries by developing best management practices designed to foster coexistence between the various segments of food, fiber, and agriculturally derived energy production.
Identify a means of maximizing coordination and communication among those involved in sectors of agricultural production that are in real, potential, or perceived conflict with one another, and consider issues relevant to coexistence, including, but not limited to, developing consensus on voluntary production practices and protections.
Work in concert with the State Board of Food and Agriculture, and provide a forum for fostering a broad-based dialogue on agricultural production practices related to coexistence, founded on facts and demonstrable applied and practical science. If data is lacking, the working group may also propose research programs to provide information on which to base further recommendations.
ARTICLE 10. Farm to Community Food Hub Program [590. - 593.]
For the purposes of this article, the following definitions apply:
“Beginning,” in reference to a farmer or rancher, means a person who has materially and substantially participated in the operation of a farm or ranch for 10 years or less.
“Limited resource” has the same definition as in Section 760.107 of Title 7 of the Code of Federal Regulations.
“Office” means the Office of Farm to Fork in the department.
“Program” means the Farm to Community Food Hub Program.
“Socially disadvantaged” has the same definition as in Section 512.
“Sustainable agriculture production practices or methods” means practices, including, but not limited to, organic methods, biological control, and integrated pest management, and ecologically beneficial means of soil improvement, irrigation, cultivation, harvesting, transportation, and marketing for California agriculture based on methods, as identified by the department.
The Farm to Community Food Hub Program is hereby established for the purpose of piloting investments in the capital aggregation and distribution infrastructure needed to increase purchasing of local, environmentally sustainable, climate-smart, and equitably produced food by schools and other institutions, build a better food system economy, support the local farming economy, accelerate climate adaptation and resilience, and employ food system workers with fair wages and working conditions.
The program shall be administered by the Office of Farm to Fork in the department. In administering the program, the office shall develop and consult with a working group comprising at least seven individuals who possess expertise in the operation of food hubs and the areas described in subdivision (a), including, but not limited to, representatives of the Sustainable Agriculture and Research Education Program, housed within the University of California Agriculture and Natural Resources, representatives of the department’s BIPOC Producer Advisory Committee and Small-Scale Producer Advisory Committee, technical experts with experience establishing a food hub, food supply chain representatives such as producers, processors, or purchasers with expertise working with small and socially disadvantaged farms, and at least one representative with expertise in advancing food system improvements that are supportive of local food systems.
A participant of the working group shall recuse themself from any matter involving the scoring of grant applications or directing of grant funds, if an entity for which they serve on the board of directors or in any other role intends to apply, or has applied, for a grant under the program.
A participant of the working group who recuses themself pursuant to paragraph (1) may still serve on the working group to provide general guidance on the formation of the program.
Participants of the working group shall receive a reasonable per diem allowance.
The working group is not subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
The program shall incentivize the creation and permanency of public-serving aggregation and distribution enterprises, known as farm to community food hubs, which may be operated by a nonprofit organization, school district, county office of education, cooperative, food and agriculture-related business, or Certified B Corporation. A farm to community food hub shall do all of the following:
Serve as an aggregator and supply chain intermediary for local or regional farms or ranches, particularly those optimizing sustainable agriculture production practices or methods and following state labor practices. The farm to community food hub shall prioritize, to the greatest extent possible, but is not limited to, serving farms or ranches that are 500 acres or less, cooperatively owned, or owned by farmers or ranchers who are socially disadvantaged, beginning, limited resource, veterans, or disabled.
Prioritize, to the greatest extent feasible, distributing food products from the farms or ranches described in paragraph (1) to public institutions and nonprofit organizations, with primary emphasis on public schools and food banks in the region. Distribution of the food products may be contracted to a value-added intermediary, such as a produce, grain, meat, or seafood processor, if the food products are ultimately provided on a prioritized basis to public institutions or nonprofit organizations.
Ensure that the farms and ranches with which it works comply with all laws, rules, and regulations, including labor and environmental requirements and standards.
The program shall prioritize the creation of new farm to community food hubs and may be administered in two phases, as follows:
During the first phase of the program, the office shall solicit and select proposals throughout the state to create farm to community food hubs that meet the requirements in subdivision (a), and award planning grants to selected proposals.
During the second phase of the program, the office shall select at least three of the proposals awarded planning grants pursuant to paragraph (1) and award to those proposals development grants for capital and operating expenses of each farm to community food hub for a five-year period.
As a condition of the receipt of funds pursuant to paragraph (2) of subdivision (b), a farm to community food hub shall report to the office every quarter for five years after the receipt of the funds regarding the use of the funds.
Notwithstanding Section 10231.5 of the Government Code, for at least five years following the initial award of development grant funding pursuant to paragraph (2) of subdivision (b), the office shall provide an annual report on the status of the farm to community food hubs to the Legislature, in accordance with Section 9795 of the Government Code. The report shall include information on the progress of the farm to community food hubs in all of the following areas:
The number and type of institutions served by farm to community food hubs, and the volumes of food products provided to each institution.
The program or a farm to community food hub awarded a development grant pursuant to paragraph (2) of subdivision (b) may accept federal, state, industry, philanthropic, and private sources of funding.
This article shall remain in effect only until January 1, 2034, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2034, deletes or extends that date.
CHAPTER 4. Buildings of the Department of Food and Agriculture [601. - 655.]
ARTICLE 1. Definitions and General Provisions [601. - 604.]
The department may, with the approval of the Department of General Services, purchase or otherwise acquire real property. It may construct and equip buildings upon the property and make improvements to the property, buildings, and equipment.
Any building or improvement that is constructed by the department pursuant to this chapter shall be primarily for the occupancy of the department and its commissions, divisions, bureaus, advisory boards, and services.
The building or improvement shall be administered and supervised by the department in accordance with rules and regulations which are established by the department and approved by the Department of General Services. Such rules and regulations shall be comparable to those for the administration and supervision of other state-owned buildings.
ARTICLE 2. Department of Agriculture Building Fund [621. - 627.]
The Department of Agriculture Building Fund is continued in existence.
When there are moneys appropriated to the department, excluding General Fund appropriations, that are not required to meet any demand that has accrued or may accrue against the moneys, the Controller, upon the order of the secretary, shall transfer the sum as may be designated by the secretary in the order to the Department of Agriculture Building Fund.
The Controller shall not transfer an amount pursuant to subdivision (a) that exceeds two hundred fifty thousand dollars ($250,000) unless the Director of Finance concurs in the transfer.
All rentals which are collected pursuant to this chapter shall be deposited in the Department of Agriculture Building Fund.
The moneys in the Department of Agriculture Building Fund are available, upon appropriation by the Legislature in the annual Budget Act, to carry out this chapter, including the costs of improvements, modifications, maintenance, repairs, and other reasonable and necessary expenses of the property and the buildings or improvements under the control of the department.
Money shall not be transferred pursuant to Section 622 to the Department of Agriculture Building Fund if it will interfere with the administrative purposes for which the money was collected.
The secretary may do any and all things that are necessary to protect the investment or use, including the purchase of insurance against the loss of, or damage to, the property, or the loss of its use and occupancy, of any property and buildings and appurtenant facilities under the control of the department.
Any transaction that is entered into by the secretary pursuant to this section is subject to the approval of the Department of General Services.
ARTICLE 3. Leases and Rentals [651. - 655.]
Any building or improvement that is controlled by the department may contain space in excess of the requirements of the department. Until needed, the excess space may be leased or let by the department at such rental and upon such terms and conditions as are approved by the Department of General Services.
The department may contract with the Department of General Services to handle the rentals of any space over and above that which is required for the department and to furnish general supervision and maintenance in any building or improvement that is controlled by the department.
The secretary may allocate space to the commissions, divisions, bureaus, advisory boards, and services that comprise the department or agencies that are subject to its jurisdiction in any building controlled by the department. The secretary may charge a rental for the space.
The occupancy of any space that is not required by the department for the commissions, divisions, bureaus, advisory boards, and services specified in Section 654 shall be confined to that of other functions of the department, of other state agencies, of official agencies cooperating with the department under agreement, or of official agricultural agencies of the state or county. Rentals comparable to the rentals that are authorized by Section 654 shall be charged for the space.
CHAPTER 5. Foreign Trade Practices [701. - 705.]
The Legislature finds and declares all of the following:
California farm sales, which are of vital importance to California agriculture and the state’s economy, have been adversely affected by increasing foreign imports and a loss of export markets as a result of numerous factors including, in some cases, unfair trade practices of foreign governments and foreign business enterprises.
Under the Trade Act of 1974 (19 U.S.C. Sec. 2101 et seq.), an interested party may file a petition with the United States Trade Representative to negotiate for a remedy when any act, policy, or practice of a foreign government is inconsistent with international trade agreements, or otherwise unreasonable, unjustifiable, or discriminatory and is a burden or is restrictive to United States commerce, or if a foreign government fails to grant United States rights under a trade agreement.
Agricultural parties at interest under the act are encountering difficulties in obtaining these remedies. They are encountering a lengthy, costly, political process which requires extensive factfinding to show significant interest and substantial damage.
It is the intent of the Legislature to support the multilateral and bilateral free and fair trade negotiation process currently in place, but to provide California agricultural parties at interest with additional support through state involvement and unified statistical data compilation and analysis to contribute to a more effective and persuasive presentation of cases brought by California agricultural interests.
The department may, upon the request of a California agricultural interest which is pursuing a case under Section 301 or 302 of the Trade Act of 1974, gather and provide analytical assistance, information, and data in support of the case.
The director shall establish a reasonable schedule of fees to cover the amount expended for providing analytical assistance, information, and data requested by the California agricultural interest pursuant to this chapter.
All state agencies, including, but not limited to, the Department of Finance and the Employment Development Department shall cooperate with the director in the compilation of pertinent statistical data and shall respond to requests by the director for information in a timely manner.
CHAPTER 6. State Agricultural Policy [801. - 822.]
ARTICLE 1. General Provisions [801. - 803.]
This chapter shall be known and may be cited as the Thurman Agricultural Policy Act.
The Legislature finds and declares the following:
Agriculture is the number one industry in California, which is the leading agricultural state in the country.
Although California’s cultivated land accounts for approximately 3 percent of the country’s entire supply of farmland, the state has historically produced about 10 percent of the farm cash receipts in the United States.
California leads the nation in the production of approximately 50 different crops and livestock products.
The diversity of the state’s agriculture is truly impressive, for over 250 different commodities are grown here.
Family owned farms produce most of the food and fiber produced by the California agricultural industry.
The economic strength of the California’s agricultural industry depends on farmers and ranchers being able to profitably market the commodities and products raised.
A profitable and healthy farming industry must be sustained by a sound natural resource base of soils, water, and air which is developed, conserved, and maintained to ensure sufficient quantities and the highest optimum quality possible.
The Legislature further finds and declares that, regardless of the findings in Section 802, this state does not presently have a formal agricultural policy. That policy should guide decisionmaking by the Legislature so that the needs of the agricultural industry can be considered for the benefit of the residents of this state, each of whom is directly and indirectly affected by California agriculture.
ARTICLE 2. Agricultural Policy [821. - 822.]
As part of promoting and protecting the agricultural industry of the state and for the protection of public health, safety, and welfare, the Legislature shall provide for a continuing sound and healthy agriculture in California and shall encourage a productive and profitable agriculture. Major principles of the state’s agricultural policy shall be all of the following:
To increase the sale of crops and livestock products produced by farmers, ranchers, and processors of food and fiber in this state.
To enhance the potential for domestic and international marketing of California agricultural products through fostering the creation of value additions to commodities and the development of new consumer products.
To sustain the long-term productivity of the state’s farms by conserving and protecting the soil, water, and air, which are agriculture’s basic resources.
To maximize the ability of farmers, ranchers, and processors to learn about and adopt practices that will best enable them to achieve the policies stated in this section.
The Legislature shall review actions taken in the implementation and furtherance of the state agricultural policy for their impact on the following factors:
Productive agricultural land.
Agricultural water supplies.
Agricultural energy resources, including, but not limited to, energy rates and rate structures.
Pest control, exclusion, detection, and eradication activities.
Agricultural labor.
Agricultural production tools, including, but not limited to, fertilizers and implements of husbandry.
Marketing agricultural products in the domestic and foreign markets.
Agricultural research, education, and agricultural extension programs.
Agricultural transportation and distribution systems.
Agricultural financing.
Family owned farms.
Activities of county agricultural commissioners.
Agricultural exhibits at state-supported fairs.
Recycling agricultural byproducts.
Applied new technologies including, but not limited to, new food product and value-added product development.
CHAPTER 8. Agriculture Theft Prevention [851. - 885.]
ARTICLE 1. General Provisions [851. - 851.]
It is the intent of this chapter to establish a means of identifying the owner of any fruits, nuts, or vegetables which are the food product of any tree, vine, or plant so as to provide an additional control over thefts of these commodities within the state.
ARTICLE 2. Proof of Ownership [861. - 866.]
For lots of over 25 pounds of any fruits, nuts, or vegetables that are the food product of any tree, vine, or plant, or for lots of over 200 pounds of any burl wood from a walnut tree, living or dead, and that are marketed for commercial purposes, all of the following apply:
Every person who sells the commodity for resale, processing, or further distribution through any commercial or nonprofit enterprise shall provide the buyer or transporter with a record of proof of ownership for each lot of the commodity.
Every person who buys the commodity for resale, processing, or further distribution through any commercial or nonprofit enterprise shall obtain from the previous buyer or from the transporter a record of proof of ownership for each lot of the commodity.
Every person who transports for commercial purposes shall possess a record showing proof of ownership for each lot of the commodity during transportation.
Upon probable cause to believe any fruits, nuts, vegetables, or walnut burl regulated pursuant to this chapter is in unlawful possession, proof of ownership shall be made available for inspection upon request of the secretary, the commissioner, or by any peace officer. If the secretary or the commissioner has probable cause to believe that any fruits, nuts, vegetables, or walnut burl regulated pursuant to this chapter is in unlawful possession, he or she may request a peace officer to stop the vehicle pursuant to Section 881 for inspection. The record shall contain the following information:
Name, address, telephone number, and signatures of the seller or the seller’s authorized representative.
Name, address, and telephone number of the buyer or consignee if not sold.
Common or generic name and quantity of the commodity involved.
Date of transaction and date of commencement of transportation.
A bill of lading, bill of sale, certified farmers certificate, data obtainable by electronic transmission which is accessible to a common carrier, or a similar type document shall be considered proof of ownership for purposes of this chapter.
It is unlawful for any person to knowingly falsify or cause to be falsified any information in a record intended to show proof of ownership.
A copy of the record shall be retained by the buyer and seller for a period of 60 days after delivery.
This chapter establishes minimal requirements for the transportation and identification of agricultural commodities. A county may, by ordinance, impose additional requirements regarding this transportation and identification.
ARTICLE 3. Exceptions [871. - 871.]
This chapter does not apply to the following agricultural commodities:
Commodities transported from the farm or ranch where they are produced to a commercial packing plant within this state for processing or packing.
Commodities transported and accompanied by a valid permit, disposal order, or certificate issued by the director or the commissioner for any reason other than to comply with this chapter.
ARTICLE 4. Enforcement [881. - 885.]
Any peace officer, upon probable cause to believe an agricultural commodity regulated pursuant to this chapter is being unlawfully transported, may stop the vehicle and request proof of ownership of the commodity.
Upon reasonable belief that a person is in unlawful possession of a commodity regulated by this chapter, the commodity may be held or seized by the secretary, the commissioner, or any peace officer and shall be turned over to the custody of the commissioner. The commissioner may hold the commodity on the premises where it was seized or may take possession of the commodity and maintain custody until disposed of according to the requirements of Section 884.
The director, the commissioner, or a peace officer may investigate to ascertain the ownership of any commodity that has been held pursuant to this chapter. If the lawful owner is located, the commodity shall be released to the owner, or his or her agent. The commissioner may require reasonable payment to cover costs incurred in the storing of the commodity, but not to exceed the value of the commodity being held.
If for any reason the commodity is not released to the rightful owner after being in the custody of the commissioner for 48 hours or, in the case of a highly perishable commodity, any shorter period of time that the commissioner deems necessary, the commissioner may either sell the commodity by public auction or by private sale at fair market value to a commercial packer of the commodity, or, after 72 hours from the time of seizure, may donate the commodity to a nonprofit charitable organization. If donated, the commodity shall not be sold by the receiving party. If sold, all of the proceeds derived from the sale of the commodity shall be held by the commissioner for a period of not less than six months, during which time the lawful owner of the commodity may submit satisfactory proof of ownership and obtain possession of the proceeds. The commissioner may require the payment by the owner of an amount sufficient to cover the costs incurred for a storage and sale of the commodity, but not to exceed the sale price of the commodity. If, after retention of the proceeds for a period of at least six months, no demand is made or if proof of ownership is not supplied, the commissioner shall deposit the proceeds of the sale of the commodity in the general fund of the county.
If the commodity is unfit for human consumption, the commissioner may destroy it.
In lieu of civil prosecution, the secretary or the commissioner may levy a civil penalty against any person violating the provisions of this chapter or any regulation adopted pursuant to its provisions. The civil penalty for each violation shall be, for a first violation, a fine of not more than five hundred dollars ($500). For a second or subsequent violation, the fine shall be not less than one hundred dollars ($100), nor more than one thousand dollars ($1,000). Before a civil penalty is levied, the person charged with the violation shall receive notice of the nature of the violation and shall be given an opportunity to be heard. This shall include the right to review the evidence and a right to present evidence on his or her own behalf. Subdivision (e) of Section 43003 shall apply to any fine levied pursuant to this section.
CHAPTER 9. False, Deceptive, or Misleading Marketing [890. - 894.]
It is unlawful for any person or entity, or employee or agent of that person or entity, to make any statement, representation, or assertion orally, by public statement, advertisement, signage, or by any means that relates to the sale or availability of agricultural products that is false, deceptive, or misleading regarding any of the following:
The area of production of the agricultural product.
The identity of the producer of the agricultural product.
The manner and method of production of the agricultural product.
A violation of the provisions of this section is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that imprisonment and fine.
In lieu of prosecution, the secretary, or a county agricultural commissioner under the authority of the secretary, may levy a civil penalty against a person or entity that violates this chapter in an amount not less than five hundred dollars ($500) and not more than five thousand dollars ($5,000) for each violation. The amount of the penalty assessed for each violation shall be based upon the scope of the violation, the seriousness of the deception, and the impact of the penalty on the violator, including the deterrent effect on future violations. Subdivision (e) of Section 43003 shall apply to a fine or civil penalty levied pursuant to this section.
Any action taken against a person by the secretary or a county agricultural commissioner pursuant to Section 890 or 891 shall not preclude the secretary or a county agricultural commissioner from taking a separate action for a violation of a provision of this code that is specific to a particular license or permit.
All civil penalties collected pursuant to this chapter by the secretary shall be deposited in the Direct Agricultural Marketing Penalty Account, which is hereby created in the Department of Food and Agriculture Fund, and shall be used to conduct investigations and enforcement actions upon complaints filed or pursuant to information received that results in the investigation of a violation of Section 890. Money deposited pursuant to this chapter also may be used to contract with county agricultural commissioners for services that further the purposes of this chapter, and may be used for expenses incurred by county agricultural commissioners for investigative and enforcement actions conducted pursuant to this chapter. Notwithstanding Section 13340 of the Government Code, all moneys deposited pursuant to this chapter shall be continuously appropriated to the department without regard to fiscal year for purposes of this chapter.
All civil penalties collected pursuant to enforcement actions by a county agricultural commissioner pursuant to this chapter shall be paid to the county treasurer.
PART 2. THE STATE BOARD OF FOOD AND AGRICULTURE [901. - 954.]
CHAPTER 1. Organization [901. - 906.]
There is in the state government the State Board of Food and Agriculture which consists of 15 members.
It is hereby declared, as a matter of legislative determination, that representatives of the agricultural industry appointed to the State Board of Food and Agriculture pursuant to this chapter are intended to represent and further the interest of a particular industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such board, the particular industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The members of the board shall be appointed by the Governor as follows:
One from the Agricultural Sciences Division of the University of California.
One from the agricultural department of one of the state universities and colleges offering agriculture as a part of the curriculum.
Two members shall be appointed from the state at large who represent the agricultural industry.
Seven members, not more than one of whom shall be appointed from any one congressional district or from any one county, who represent the agricultural industry.
Two members of the public who have no direct financial interest in the production or handling of agricultural products, but who have an interest in, and knowledge of, the environment.
Two members of the public who have no direct financial interest in the production or handling of agricultural products, but who have an interest in, and knowledge of, consumer affairs.
The term of office of the members of the board is four years. The terms expire on January 15 of each year in the rotation which is presently established. Vacancies shall be filled by appointment for the unexpired term. On February 1 of each year the Governor shall designate one of the members of the board to serve as president. The term of office of the members appointed pursuant to subdivision (f) of Section 902 shall commence on January 15, 1976.
The members shall be residents and citizens of the state and shall be specially qualified for this service through actual farm business, economic agricultural training, environmental protection, or consumer affairs. Each member of the board representing the agricultural industry shall have a major interest in a separate branch of the agricultural industry.
The members shall serve without pay, but shall be allowed necessary traveling and incidental expenses which are incurred in the discharge of their duties. The expenses shall be paid from the appropriation for the support of the department.
Public officers associated with any area of government, including agriculture, and whether elected or appointed, may be appointed to, and may serve contemporaneously as members of, the board.
No member of the board appointed pursuant to subdivision (c) or (d) of Section 902 shall participate in any board action that involves himself or herself or any agricultural entity with which he or she is connected as a director, officer, or employee, or in which he or she has a financial interest in the decision within the meaning of Section 87103 of the Government Code.
CHAPTER 2. Powers and Duties [951. - 954.]
The board shall inquire into the needs of the agricultural industry of this state and the functions of the department in relation to such needs, and confer and advise with the Governor and the director as to how the agricultural industry and the consumer of agricultural products may best be served by the department.
The board shall make recommendations to the secretary regarding the project agreements to be funded pursuant to Chapter 6 (commencing with Section 58551) of Part 1 of Division 21.
The board, and any member of it who is authorized by resolution of the board, may make investigations, conduct hearings, and prosecute actions concerning all matters and subjects which are under the jurisdiction of the department. For such purposes, the board and its authorized members shall have all of the powers and authority which are conferred upon a head of a state department by Article 2 (commencing with Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the Government Code.
The board shall hold meetings at least once a month in the office of the director at Sacramento or at any other location determined by the president of the board to be appropriate.
Special or adjourned meetings may be held at the office of the director in Sacramento, or at any other place in the state which the president may deem necessary. Special meetings of the board shall also be called by the president at any time upon the written request of four members of the board.
PART 4. CALIFORNIA AGRICULTURE DAY [1500. - 1501.]
The first day of spring in each year is hereby designated as California Agriculture Day.
Notwithstanding the Education Code, including, but not limited to, provisions relating to curriculum requirements, on the first day of spring or on another day determined by public schools throughout the state, these schools are encouraged to provide education that instructs students on the history and importance of agriculture in California. This instruction may include education on agricultural history, nutrition, economics, or the planting of a school garden ; or the use of any educational device that commemorates agriculture’s importance in California.
DIVISION 2. LOCAL ADMINISTRATION [2001. - 2350.]
CHAPTER 1. County Department of Agriculture [2001. - 2003.]
There is in each county government the county department of agriculture.
The county department of agriculture is under the control of the county agricultural commissioner.
The California Agricultural Commissioners and Sealers Association shall be recognized as the official representative body on behalf of county agricultural commissioners and sealers.
CHAPTER 2. County Agricultural Commissioners and Their Employees [2101. - 2287.]
ARTICLE 1. Qualifications [2101. - 2107.]
The director shall examine persons who desire to become commissioners or deputy commissioners. He or she may adopt regulations which govern the examinations. Successful candidates shall be given a license which shall be valid for five years unless revoked.
The director may charge each candidate a fee to cover the actual cost of providing the license examination.
The director shall pass upon the qualifications of persons who desire to become county agricultural inspectors and shall issue licenses to successful candidates.
The director may charge each candidate a fee to cover the actual cost of providing the license examination.
The director shall issue a license, for any county which has a charter that provides for civil service examination of county agricultural inspectors, to any person who presents a certificate which shows that the person has passed the examination.
A commissioner, deputy commissioner, or county agricultural inspector need not be a resident of the county for which he may be chosen.
Prior to entering upon his duties, the commissioner shall file the usual oath, and he shall be required to file an official bond in an amount determined by the board of supervisors, unless he is covered by a master bond pursuant to Section 1481 of the Government Code.
No person shall be eligible for the examination or shall be given or issued a license pursuant to Section 2101, 2102, or 2103 unless he or she possesses a bachelor’s degree from an accredited four-year college with specialization in one or more appropriate disciplines in the agricultural, biological, chemical, or physical sciences, or other appropriate disciplines, as determined by the secretary. If a person is registered as a senior in an accredited four-year college in one of the specializations described herein, that person shall be admitted to the examination, but a license shall not be issued until that person graduates. In determining whether or not a college is accredited, the secretary may rely on accreditation granted by a state or national association formed and operated for the purpose of determining accreditation. This section shall not apply to any person holding a valid license of qualification in weights and measures who was employed by a county agricultural commissioner or sealer in a permanent classification before January 1, 1995, and who possesses at least one license in an agricultural category no later than December 31, 1996.
ARTICLE 2. Appointment and Employment [2121. - 2129.]
The commissioner shall be appointed by the board of supervisors of the county. Any chartered county may, however, prescribe a different method of appointment.
The term of office of the commissioner shall be four years from and after his appointment and until his successor is appointed. He may, however, be removed pursuant to this chapter.
Except as otherwise provided in this chapter, a person shall not be appointed to the office of commissioner or deputy commissioner unless he or she has a license issued by the director. The license of any qualified incumbent shall be renewed without further examination.
If the board of supervisors of such adjoining county consents, the board of supervisors of any county in which there is no commissioner may employ a qualified commissioner or a qualified deputy commissioner of the adjoining county to perform the duties of commissioner in the employing county.
A commissioner or deputy commissioner who is so employed shall have such authority and powers as are conferred upon a commissioner by this code. He is not required to comply with residence or other qualifications for office within the employing county.
In any county in which no commissioner has served, the director shall perform the duties of commissioner in the same manner, to the same extent, and with the same authority as if he had been the duly appointed commissioner in such county.
The commissioner may appoint deputy commissioners, inspectors, and clerks who shall serve at his pleasure.
Such inspectors may be designated as county agricultural inspectors or county agricultural biologists.
Deputy commissioners and inspectors shall be appointed from a list which is furnished by the director of persons who hold a license for the office.
If the position of deputy commissioner cannot be filled from the list, a temporary appointment may be made for a period not exceeding six months upon the written recommendation of the director.
If the position of inspector cannot be filled from the list, a temporary appointment not exceeding six months may be made.
ARTICLE 3. Vacancies [2151. - 2154.]
If a vacancy in the office of commissioner occurs, the director, upon learning of the vacancy, shall immediately transmit to the board of supervisors or other appointing power a list of persons who are licensed by him or her to be eligible for the position.
If, within 60 days after the receipt of the list of persons who are licensed, the appointing power fails to appoint a commissioner from the list, the secretary shall appoint a commissioner from the list.
If there is no qualified person available for the office of commissioner, the appointing power may make a temporary appointment, for a period not exceeding three months, of a person who is recommended in writing by the director.
If the appointing power does not make a temporary appointment of a commissioner and no person can be appointed from the eligible list by the director, the director may make a temporary appointment of a person who is competent to carry on the duties of the office for a period not exceeding three months.
ARTICLE 4. Removal [2181. - 2187.]
Upon satisfactory evidence presented to the Secretary or the Director of the Department of Pesticide Regulation that the commissioner of any county is guilty of neglect of duty, incompetence, or misconduct in office, the trial board that is selected, pursuant to this article, shall hold a hearing at the time and place specified by the trial board. The secretary shall convene the trial board when the alleged offenses come under the jurisdiction of the Department of Food and Agriculture, and the director shall convene the trial board when the alleged offenses come under the jurisdiction of the Department of Pesticide Regulation.
The county agricultural commissioner’s trial board shall be composed of the Secretary and the Director of the Department of Pesticide Regulation, a person who has knowledge of, or experience in, agriculture, selected by the board of supervisors of the county of the charged commissioner, and a hearing officer from the Office of Administrative Hearings, who shall be chairman and a voting member of such board.
The department that convenes the trial board is responsible, under Section 11370.4 of the Government Code, for the cost of the services provided for by the Office of Administrative Hearings in carrying out the provisions of this section.
At least 10 days prior to the date of the hearing the director shall give notice in writing to the commissioner of the time and place of the hearing and such information as to the nature of the charges as will enable the commissioner to present a defense to the charges.
At the hearing the trial board shall hear the evidence which is offered.
The trial board shall, within 30 days subsequent to the conclusion of the hearing make an order dismissing the charges or an order disqualifying the commissioner.
If the order disqualifies the commissioner, the director shall revoke the commissioner’s license and declare his or her office vacant. A copy of the order shall be immediately transmitted by the director to the board of supervisors and the auditor of the county in which the commissioner held office.
The license of a deputy commissioner may be revoked in the same manner and for the same causes that a license of a commissioner may be revoked.
ARTICLE 5. Compensation [2201. - 2206.]
The compensation provided for a commissioner, deputy commissioner, county agricultural inspector, or clerk who is employed by the year or by the month shall be paid out of the county treasury in the same manner and at the same time as county officers are paid. A commissioner and each deputy commissioner or inspector is entitled to receive his traveling and incidental expenses which are necessarily incurred in the performance of his duty. Such expenses and all compensation which is earned by a commissioner, deputy commissioner, inspector, or clerk who is not employed by the year or by the month are a county charge. The board of supervisors shall allow and pay them in the same manner as other claims are allowed and paid.
The commissioner shall be paid his or her compensation and traveling and incidental expenses while he or she is attending the annual meeting of the California Agricultural Commissioners and Sealers Association or its successor and any other meetings he or she is required by the secretary to attend, or while he or she is on any service that requires him or her to go outside the county if the performance of that service has been authorized by the board of supervisors, the secretary or director, or this code.
The compensation of a commissioner who is appointed by the director shall be paid in the same manner as if he were appointed by the board of supervisors.
The rate and manner of payment of compensation for a commissioner who is employed pursuant to Section 2124 shall be fixed by the board of supervisors of the employing county. He is entitled to receive his traveling and incidental expenses which are necessarily incurred in the performance of his duty.
The board of supervisors of any county in which the director is required by Section 2125 to perform the duties of commissioner shall, upon claim which is duly submitted, reimburse the department for all expenses which are incurred by the director in fulfilling his responsibilities in performing such duties. The amount of reimbursement shall not, however, be in excess of an amount which is established by an agreement between the board of supervisors and the director pursuant to Section 482 of this code or Section 25801 of the Government Code.
ARTICLE 6. Cooperative Salary Agreements [2221. - 2224.]
For the purpose of this article the base salary of a commissioner is the salary, or if a salary range is established, the lowest step in such range, which was established for the position for the month of January, 1959.
For the purpose of securing more uniform and adequate enforcement of this code throughout the state, the director may enter into cooperative agreements with the board of supervisors of any county which relate to the compensation of the county agricultural commissioner of the county, or which relate to compensation of the county for services which are performed for the department.
In the agreement the board of supervisors shall agree not to reduce the salary of the commissioner to less than the base salary. The director may agree to pay to the county a sum not to exceed six thousand six hundred dollars ($6,600) per year to be used for the salary of the commissioner, or to compensate the county for services which are performed for the department. The amount which is paid to a county shall not, however, exceed two-thirds of the amount of the salary which is paid to its commissioner.
The director may agree with the board of supervisors of any county in which no salary was established for the position of commissioner for January, 1959, that the state will pay not to exceed six thousand six hundred dollars ($6,600) per year of the amount to be used for payment of the salary of a commissioner for such county, or of a commissioner who is employed pursuant to Section 2124. The amount which is paid the county shall not, however, exceed two-thirds of the amount of the salary which is paid to the commissioner.
ARTICLE 7. Offices, Equipment and Supplies [2241. - 2244.]
As used in this article “commissioner” includes a commissioner who is employed pursuant to Section 2124.
The board of supervisors shall provide a suitable office for the commissioner, and shall furnish and equip his office with all necessary furniture, supplies, and effects for the proper discharge of his duties.
The board of supervisors may also provide the commissioner with all necessary field equipment for the proper discharge of the duties of his office.
All expenses which are ordered by the board of supervisors for the office, furniture, supplies, effects, and equipment for the commissioner are a county charge. The board of supervisors shall allow and pay such expenses out of the general fund of the county.
ARTICLE 8. Powers and Duties [2271. - 2287.]
The commissioner shall keep a record of his official acts.
The commissioner shall make an annual report to the director on the condition of agriculture in his or her county and on what is being done to eradicate, control, or manage pests, and actions relating to the exclusion of pests or quarantine against pests. The commissioner may include in the annual report information relating to organic farming methods, biotechnology, integrated pest management, and biological control activities in the county. The commissioner shall also furnish from time to time to the director any other information the director may require.
This section shall become operative July 1, 1999.
The commissioner shall also make a monthly report to the board of supervisors if and when so required by the board.
The commissioner shall learn about all pests that may exist, or are likely to exist, in his county.
The commissioner, for the purpose of learning the best and most efficacious methods of performing his or her duties, shall attend the annual meeting of the California Agricultural Commissioners and Sealers Association or its successor, and any other meetings as the secretary or director shall require.
The commissioner shall, for the purpose of becoming informed about new and dangerous agricultural pests, observing and learning new and better methods of pest control, and determining the best and most efficacious methods of conducting the work of his department, consult with staff members of the United States Department of Agriculture, the State Department of Agriculture, the University of California, and with agricultural commissioners of other counties. He shall make such trips outside of the county which are necessary for such purposes, if authorized by the board of supervisors.
The Legislature finds and declares that, acting under policy direction of the Secretary of Food and Agriculture, California’s unique system of county agricultural commissioners forms the front line of defense in protecting the state from the many exotic and invasive species threatening our people, commerce, and environment.
It is the intent of the Legislature that agricultural commissioners take an increasingly assertive and proactive role in the exclusion and detection of exotic and invasive species in the urban environment, particularly those potentially spread by human activities, such as landscaping and yard maintenance.
The commissioner shall, if directed by the board of supervisors, collect, prepare, and install exhibits for public information which illustrate the work of his department, depict the resources of the county, or display the products of the county.
The commissioner may disseminate information which relates to pests that may exist in his county, or are likely to exist in it. The information may include life histories, habits, methods of detection, and methods of control of such pests.
The commissioner shall compile reports of the condition, acreage, production, and value of the agricultural products in his county. The commissioner may publish such reports, and shall transmit a copy of them to the director.
The director, when acting in person with a commissioner, has all the rights of such commissioner.
Except as otherwise specifically provided, in all cases where provisions of this code place joint responsibility for the enforcement of laws and regulations on the director and the commissioner, the commissioner shall be responsible for local administration of the enforcement program. The director shall be responsible for overall statewide enforcement and shall issue instructions and make recommendations to the commissioner. Such instructions and recommendations shall govern the procedure to be followed by the commissioner in the discharge of his duties. The director shall furnish assistance in planning and otherwise developing an adequate county enforcement program, including uniformity, coordination, training, special services, special equipment, and forms, statewide publicity, statewide planning, and emergency assistance.
The instructions and recommendations shall include a cost analysis of the local administration of such programs, determined from data supplied by the commissioner pursuant to Section 2272. Such cost analysis shall identify the joint programs or activities for which funds necessary to maintain adequate county administration and enforcement have not been provided. The director shall develop, jointly with the commissioners, county priorities for such enforcement programs and activities.
The director shall report annually to the Legislature his findings concerning the cost analysis with specific regard to programs where funds are inadequate for an efficient enforcement program, together with a listing of the priorities jointly established by the director and the commissioners that are contained in the formal instructions and recommendations of the director.
Except as provided in Section 2282.5, and to the extent funds are appropriated in the annual Budget Act, the Secretary of Food and Agriculture or the Director of Pesticide Regulation may allocate annually to each county an amount determined by the secretary or the director not to exceed one-third of the amount expended by the county during the previous fiscal year for the programs of joint responsibility under the jurisdiction of the secretary or director, as applicable. The allocations shall be made from funds appropriated to the secretary or the director for purposes of carrying out activities of joint responsibility with the commissioners at the local levels.
The annual report to the Legislature required by Section 2281 shall include findings for each of the following joint programs, including the amounts allocated to, and expended by, the counties in the previous fiscal year and the proposed amount to be allocated by the secretary for each program for the ensuing budget year:
Pest detection.
Pest eradication.
Pest management control.
Pest exclusion.
Seed inspection.
Nursery inspection.
Fruit and vegetable quality control.
Egg quality control.
Apiary inspection.
Crop statistics.
The report shall also specify the programs that have been augmented with state funds each year since 1980 because of new legislative mandates, or because of pest infestations or outbreaks occurring since that date, and the annual amounts of those augmentations.
The development of work plans for allocation of the funding appropriated in the Budget Act to the department for local assistance for agricultural plant and animal pest and disease prevention shall be the responsibility of the department. The department shall establish criteria for the development of the work plans and for allocating the appropriated funds.
Of the amount appropriated in the Budget Act to the department for local assistance for agricultural plant and animal pest and disease prevention, five million five hundred thousand dollars ($5,500,000) shall be utilized solely for high-risk pest exclusion activities. The work plans for the exclusion of high-risk pests shall be developed by the department with the county agricultural commissioners and in consultation with affected industry representatives. In order to determine the effectiveness of high-risk pest exclusion programs in each county, the criteria established by the department for the work plan shall include, but need not be limited to, the following:
The number of high-risk plant shipments entering each county.
The number of high-risk entry points in each county.
The number of state action quarantine pests intercepted or detected annually in each county.
The work hours expended by each county in conducting exclusion of high-risk pests.
The rate of interceptions and rejections per inspection activity.
To remain eligible for funding under this section, a county shall maintain its support of ongoing operational costs of the county agricultural commissioner programs listed in subdivision (b) of Section 2282, at 1997–98 fiscal year levels.
Funds allocated for high-risk pest exclusion activities pursuant to subdivision (b) may not be expended for any purpose other than the exclusion or detection of high-risk pests consistent with the work plans prescribed in subdivision (a) or scientific evaluation. Funds allocated by each county on or after September 28, 1998, shall not be allocated to other programs listed in subdivision (b) of Section 2282 until the county work plan is approved by the department consistent with the funding appropriated in the Budget Act to the department for local assistance for agricultural plant and animal pest and disease prevention for this purpose.
The commissioner, in carrying out his responsibilities under Section 2281, may assist the department in the conduct of surveys or investigations pursuant to Section 461 for the purpose of preventing the introduction and spread of injurious insect or animal pests, plant diseases, and noxious weeds under Section 403.
The commissioner may, with the approval of the board of supervisors, contract with any person or association to certify the condition of a shipment of a product regulated under this code. The condition certified to may include the temperature of the product. The contract shall provide for payment to the commissioner for the commissioner’s total cost in performing the certification.
For the purpose of developing necessary information and securing the best results for agriculture in this state, the commissioner may correspond and meet with any interested individual, agency, group, association, or educational institution with an interest in, or information regarding, agricultural practices, as resources allow. As used in this section “agriculture” includes, but is not limited to, developments and issues regarding all agricultural practices, traditional and alternative pest control methodology, and other areas of agriculture resource management. The California Agricultural Commissioners and Sealers Association may provide a forum by which a commissioner keeps informed and may facilitate discussions with other associations, institutions, agencies, organizations, or groups relating to resource management and protection for agriculture.
The discretionary immunity doctrine as applied to a public entity and an employee of a public entity pursuant to Sections 815.2 and 820.2 of the Government Code applies to decisions of a county department of agriculture and an employee of a county department of agriculture enforcing a state or local pest control or pest eradication statute, regulation, or ordinance. Nothing in this section authorizes or affects the filing of an action challenging the legal authority of the county department of agriculture to undertake the pest control or eradication action.
Whenever the commissioner determines that it is necessary to more effectively or more efficiently carry out a program listed in subdivision (b) of Section 2282, the commissioner may enter into a mutual aid agreement with other counties for the purpose of sharing staff, equipment, expertise, information, and other resources necessary to meet the needs of the program.
CHAPTER 3. County Veterinarian [2301. - 2344.]
ARTICLE 1. Appointment [2301. - 2302.]
A county veterinarian may be appointed by the board of supervisors whenever the public welfare demands the services of such veterinarian.
The veterinarian shall serve at the pleasure of the board of supervisors.
ARTICLE 2. Compensation [2321. - 2321.]
The veterinarian shall receive a salary which is fixed by the board of supervisors. It shall be payable at the same time, in the same manner, and from the same fund as other county officers are paid.
ARTICLE 3. Powers and Duties [2341. - 2344.]
The veterinarian shall act under the supervision of the director.
The veterinarian shall enforce throughout the county all of the provisions of this code which relate to the health and sanitary surroundings of livestock, poultry, and rabbits. He shall enforce within unincorporated territory all orders and ordinances of the board of supervisors which relate to such subjects.
The veterinarian may establish such quarantine, sanitary, and other regulations within his jurisdiction as he deems necessary.
The veterinarian shall attend such meetings as are deemed necessary and advisable by the board of supervisors.
CHAPTER 4. Livestock Pass Program [2350. - 2350.]
For purposes of this chapter, the following definitions apply:
“Managerial employee” means a person who meets all of the following criteria:
Has management authority with responsibility to oversee the care and well-being of the qualifying livestock producer’s livestock.
Primarily engages in managerial job duties and customarily and regularly exercises discretion and independent judgment in these duties. These duties shall be specified in a written job description issued no later than 90 days before the date of the flood, storm, fire, earthquake, or other disaster.
Earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment at the time of the flood, storm, fire, earthquake, or other disaster.
“Qualifying livestock producer” means a commercial livestock producer, as determined by the county agency, who has been certified as successfully completing the curriculum developed pursuant to Section 13105.6 of the Health and Safety Code.
Upon the approval of a county board of supervisors, a county agricultural commissioner, or other agency designated by the county board of supervisors, is authorized to establish within that county a livestock pass program for the purpose of issuing identification documents granting any qualifying livestock producer, or a managerial employee of the qualifying livestock producer, access to the qualifying livestock producer’s ranch property during or following a flood, storm, fire, earthquake, or other disaster.
A managerial employee of a qualifying livestock producer shall not be required by the qualifying livestock producer to obtain a livestock pass. Access to a qualifying livestock producer’s ranch by a managerial employee shall be fully voluntary on the part of the managerial employee.
A person shall not require any employee to obtain or use a livestock pass or to enter or be present on the livestock producer’s ranch property during or following a flood, storm, fire, earthquake, or other disaster. A person shall not in any manner discriminate, retaliate, or take any adverse action against an employee for refusing to obtain or use a livestock pass or to enter or be present on the livestock producer’s ranch property during or following a flood, storm, fire, earthquake, or other disaster. Any person who believes that they have been discriminated or retaliated against in violation of this section may, in addition to any other available remedy, file a complaint pursuant to Section 98.7 of the Labor Code for remedies available under Section 98.6 of the Labor Code.
Nothing in this section shall be construed as requiring a managerial employee of a qualifying livestock producer to be present on a ranch property during or following a flood, storm, fire, earthquake, or other disaster.
An operator identification number issued by a county agricultural commissioner.
An Internal Revenue Service Schedule F (Form 1040) attesting to the applicant’s Profit or Loss From Farming.
Assessor’s parcel numbers confirming agricultural zoning for the property or properties upon which access is sought.
Agricultural land lease documentation.
Documentation attesting to the applicant’s enrollment in a Williamson Act contract as authorized pursuant to Chapter 7 (commencing with Section 51200) of Part 1 of Division 1 of Title 5 of the Government Code.
Documentation from the United States Department of Agriculture Farm Service Agency attesting that the applicant is a commercial livestock producer.
Current registration of a livestock brand with the Bureau of Livestock Identification.
An applicant for a livestock pass shall furnish to the relevant county agency a description or map of all lands owned or managed by the applicant for which disaster access is sought.
Access under this section to areas closed pursuant to subdivision (a) of Section 409.5 of the Penal Code may only be granted by the incident commander, a law enforcement official having jurisdiction, or their designee. When access is granted by emergency response personnel other than the incident commander, the emergency response personnel shall notify incident command that access has been provided to the livestock passholder.
For purposes of this subdivision, “local expertise” may include identifying access roads, water points, and other local knowledge that may assist firefighters or other emergency response personnel.
A livestock pass identification document issued pursuant to subdivision (b) for the purpose of authorizing access during a disaster shall include, at a minimum, all of the following information:
The name of the applicant and cardholder.
The name or names of the ranch to which the cardholder seeks access in the event of a disaster.
The expiration date of the identification document, if an expiration date was established by the county.
The seal or logo of the authorizing agency and the signature of the issuing officer.
A livestock pass identification document authorizing access during a disaster that does not include a photograph of the cardholder shall not be a valid document for purposes of subdivision (b) unless accompanied by a valid photo identification document issued by the state or federal government.
Notwithstanding this section, a livestock pass issued by a county in which a livestock pass or equivalent program was established before January 1, 2022, shall be deemed to be in compliance with this section until the expiration date noted on the livestock pass or until December 31, 2025, whichever date occurs first.
DIVISION 3. EXPOSITIONS AND FAIRS [3001. - 4703.]
PART 1. GENERAL PROVISIONS [3001. - 3224.]
CHAPTER 1. Free Admissions [3001. - 3029.]
ARTICLE 1. Definitions [3001. - 3003.]
Unless the context otherwise requires, the definitions in this article govern the construction of the chapter.
“Courtesy pass admission” means any admission, without payment of the admission charge, to any state, county, district, or citrus fruit fair, except any of the following:
Credential admission.
Admission of any child under 12 years of age.
Admission of any military personnel.
“Credential admission” means any admission which is authorized by the board of directors of a state, district, or citrus fruit fair, or by the board of supervisors of a county for admission to a fair without payment of the admission charge when a service is rendered by the person who is admitted which is necessary for the conduct of the fair.
ARTICLE 2. Powers and Duties [3021. - 3029.]
Every state, district, county, or citrus fruit fair which receives any money from the State Treasury shall permit the admission without payment of the admission charge of all children 12 years of age or under on at least one day, which is designated by the fair, during each fair period.
If a charge is made for admission to enter a state, district, county, or citrus fruit fair, the following persons may be admitted to those fairgrounds without the payment of the established admission price:
Persons with credential admissions.
Persons with courtesy pass admissions.
Military personnel.
A credential admission may be issued to any individual, association, or body that does any of the following:
Prepares or services any educational, commercial, industrial, livestock, agricultural, horticultural, or viticultural display or exhibit.
Services, maintains, or operates any concession.
Renders, through agreement with the fair, a service to fair patrons.
Renders a necessary public service.
Safeguards health.
Provides for public safety.
Participates in any parade or event which is necessary for the conduct of the fair.
Credential admissions may, also, be issued to any of the following persons:
Representatives of press, radio, and television personally engaged in obtaining and transmitting public information.
Ambulance drivers.
Firemen on duty.
Repairmen who are necessary to service utilities.
Employees of the fair.
State officials in the performance of their duty.
The words “credential admission” shall be printed on each ticket which is issued as a credential admission.
The percentage of courtesy pass admissions to any state, county, district, or citrus fruit fair shall not exceed 4 percent of the gross paid admission to the fair in the preceding calendar year.
A courtesy pass admission is not transferable.
Each fair shall maintain complete records of the number of credential and courtesy pass admissions which are issued for each fair period.
Each fair shall make an annual report to the department, as prescribed by the department, of the total number of credential and courtesy pass admissions issued and honored at the fair.
CHAPTER 2. Fairs and District Agricultural Associations [3101. - 3106.]
“Fair,” or “state-designated fairground,” referred to in this division, means the California Exposition and State Fair in the City of Sacramento and those fairs specified in Sections 3102, 3103, and 3104 that may receive financial support or are otherwise governed pursuant to this chapter. These fairs may also be referred to as part of the “network of California fairs.”
A nonprofit organization that holds an annual fair pursuant to Section 4163 may elect to be a member of the network of California fairs on terms and conditions mutually agreed upon by the department and the nonprofit organization.
A joint powers agency that holds an annual fair pursuant to Section 4171 may elect to be a member of the network of California fairs on terms and conditions mutually agreed upon by the department and the joint powers agency.
The district agricultural associations and their locations are as follows:
District 1 is the County of Alameda.
District 1-A is the County of San Mateo and the City and County of San Francisco, held in the City of Daly City.
District 2 is the County of San Joaquin, held in the City of Stockton.
District 3 is the County of Butte, held in the City of Chico.
District 4 is the Counties of Sonoma and Marin, held in the City of Petaluma.
District 5 is the City and County of San Francisco, held in the City and County of San Francisco.
District 6 is all of that portion of the County of Los Angeles that is not included in District 48, District 50, and District 51, and, notwithstanding any other provision of this chapter, also includes that portion of the County of Los Angeles within the boundaries of the 29th Senatorial District. District 6 shall also be known and designated as Exposition Park and shall have all of the following powers and duties:
To lease, exchange, sell, or otherwise dispose of all property.
To compromise and settle claims of every nature.
To sue and be sued in the same manner and to the same extent as the California Science Center, and the members of the governing body thereof.
District 7 is the County of Monterey, held in the City of Monterey.
District 9 is the County of Humboldt, held in the City of Eureka.
District 10 is that portion of the County of Siskiyou that is not included in District 10-A, held in the City of Yreka.
District 10-A is all of that portion of the Counties of Siskiyou and Modoc that is described as follows:
Beginning at the intersection of west longitude 122 degrees 10 minutes within the Oregon-California boundary line, thence southerly along said line of longitude to north latitude 41 degrees 30 minutes, thence easterly along said line of latitude to the point where it intersects west longitude 121 degrees 10 minutes, thence northerly along said line of longitude to the Oregon state line, thence westerly along said state line to the point of beginning, held in the City of Tulelake.
District 12 is the County of Mendocino, held in the City of Ukiah.
District 13 is the Counties of Sutter and Yuba, held in the City of Yuba City.
District 14 is the County of Santa Cruz, held in the City of Watsonville.
District 15 is all of that portion of the County of Kern that is not included in District 53, held in the City of Bakersfield.
District 16 is the County of San Luis Obispo, held in the City of Paso Robles.
District 17 is the County of Nevada, held in the City of Grass Valley.
District 18 is the Counties of Mono, Inyo, and Alpine, held in the City of Bishop.
District 19 is all of that portion of the County of Santa Barbara that lies east of Gaviota and south of the Santa Ynez Mountains, held in the City of Santa Barbara.
District 20 is the County of Placer, held in the City of Auburn.
District 21 is the County of Fresno, held in the City of Fresno.
District 21-A is the County of Madera, held in the City of Madera.
District 22 is the County of San Diego, held in the City of Del Mar.
District 23 is the County of Contra Costa, held in the City of Antioch.
District 24 is the County of Tulare, held in the City of Tulare.
District 24-A is the County of Kings, held in the City of Hanford.
(aa) District 25 is the County of Napa, held in the City of Napa.
(ab) District 26 is the County of Amador, held in the City of Plymouth.
(ac) District 27 is the County of Shasta, held in the City of Anderson.
(ad) District 28 is the County of San Bernardino, held in the City of Victorville.
(ae) District 29 is the County of Tuolumne, held in the City of Sonora.
(af) District 30 is the County of Tehama, held in the City of Red Bluff.
(ag) District 31 is the County of Ventura, held in the City of Ventura.
(ah) District 32 is the County of Orange, held in the City of Costa Mesa.
(ai) District 33 is the County of San Benito, held in the City of Hollister.
(aj) District 34 is that portion of the County of Modoc that is not included in District 10-A, held in the Town of Cedarville.
(ak) District 35 is the County of Merced, held in the City of Merced.
(al) District 35-A is the County of Mariposa, held in the Town of Mariposa.
(am) District 36 is the County of Solano, held in the City of Dixon.
(an) District 37 is all of that portion of the County of Santa Barbara that is not included in District 19, held in the City of Santa Maria.
(ao) District 38 is the County of Stanislaus, held in the City of Turlock.
(ap) District 39 is the County of Calaveras, held in the City of Angels Camp.
(aq) District 40 is the County of Yolo, held in the City of Woodland.
(ar) District 41 is the County of Del Norte, held in the City of Crescent City.
(as) District 42 is the County of Glenn, held in the City of Orland.
(at) District 44 is the County of Colusa, held in the City of Colusa.
(au) District 45 is the County of Imperial, held in the City of Imperial.
(av) District 46 is all of that portion of the County of Riverside that is not included in District 54, held in the City of Perris.
(aw) District 48 is the County of Los Angeles, held in the City of City of Industry.
(ax) District 49 is the County of Lake, held in the City of Lakeport.
(ay) District 50 is all of that portion of the County of Los Angeles that lies north of the south line of Township 5 North, San Bernardino base, held in the City of Lancaster.
(az) (1) District 51 is all of the portion of the City of Los Angeles that is described as follows:
From a point commencing where the most northerly boundary of the City of Los Angeles intersects with the Golden State Freeway and following on the city boundary in an easterly direction where the boundary first intersects with the boundary of the City of Burbank; thence continuing southeasterly along the City of Burbank boundary to its intersection with Barham Boulevard; thence in a southerly direction on Barham Boulevard to its intersection with Cahuenga Boulevard; thence in a southeasterly direction on Cahuenga Boulevard to Mulholland Drive; thence along Mulholland Drive to the City of Los Angeles boundary; thence following the City of Los Angeles boundary west and northerly until the boundary intersects with the Los Angeles-Ventura county line, thence following the Los Angeles county line north to the Kern county line, and east to the Golden State Freeway, and thence in a southerly direction on the Golden State Freeway to the starting point at the Golden State Freeway, held in the San Fernando Valley.
(ba) District 52 is the County of Sacramento, held in the City of Sacramento.
(bb) District 53 is all of the portion of the County of Kern east of the Los Angeles Aqueduct. District 53 shall be known and designated as the Desert Empire Fair, and the fair site shall be held in the City of Ridgecrest.
(bc) District 54 is all of the portion of the County of Riverside east of the Coachella Branch of the All-American Canal and east of the line running due north from the northernmost point of that canal, held in the City of Blythe.
The county fairs and their locations are as follows:
The Alameda County Fair, held in the City of Pleasanton.
The Butte County Fair, held in the City of Gridley.
The El Dorado County Fair, held in the City of Placerville.
The Humboldt County Fair, held in the City of Ferndale.
The Lassen County Fair, held in the City of Susanville.
The Los Angeles County Fair, held in the City of Pomona.
The Madera County Fair, held in the City of Chowchilla.
The Marin County Fair, held in the City of San Rafael.
The Mendocino County Fair, held in Boonville.
The Merced County Fair, known as the Merced County Spring Fair, held in the City of Los Banos.
The Monterey County Fair, known as the Salinas Valley Fair, held in the City of King City.
The Napa County Fair, held in the City of Calistoga.
The Placer County Fair, held in the City of Roseville.
The Plumas Sierra County Fair, held in the Town of Quincy.
The Riverside County Fair, known as the Riverside County Fair and National Date Festival, held in the City of Indio.
The San Benito County Fair, held in Tres Pinos.
The San Francisco County Fair, held in the City and County of San Francisco.
The San Joaquin County Fair, known as the Lodi Grape Festival and Harvest Fair, held in the City of Lodi.
The San Mateo County Fair, held in the City of San Mateo.
The Santa Clara County Fair, held in the City of San Jose.
The Shasta County Fair, held in the Town of McArthur.
The Solano County Fair, held in the City of Vallejo.
The Sonoma County Fair, held in the City of Santa Rosa.
The Trinity County Fair, held in Hayfork.
The citrus fruit fairs and their locations are as follows:
The Cloverdale Citrus Fair, held in the City of Cloverdale.
The National Orange Show, held in the City of San Bernardino.
The Legislature finds and declares that district agricultural associations, county fairs, citrus fruit fairs, and the California Exposition and State Fair, collectively known as the network of California fairs, are a valuable community resource, and recognizes that local businesses and local communities make valuable contributions to fairs that include direct and indirect support of fair programs. The Legislature further finds and declares that local businesses often provide opportunity purchases to local fairs that, for similar things available through the state purchasing program, may be purchased locally at a price equivalent to or less than that available through the state purchasing program.
In order to make opportunity purchases, a fair shall develop applicable policies and procedures.
As used in this section, “opportunity purchases” means purchases made locally, either individually or cooperatively, at a price equal to or less than the price available through the state purchasing program on or off state contract.
The provisions of this chapter, insofar as they are substantially the same as existing code provisions relating to the same subject matter, shall be construed as restatements and continuations thereof, and not as new enactments.
CHAPTER 3. Revenue and Fiscal Provisions [3200. - 3224.]
The Legislature finds and declares that the Department of Food and Agriculture is responsible for ensuring the integrity of the Fair and Exposition Fund, administering allocations from the fund to the network of California fairs, as defined in Sections 3101 to 3104, inclusive, and providing oversight of activities carried out by each California fair.
Oversight shall include, but not be limited to, all of the following:
Monitoring the solvency of the Fair and Exposition Fund.
Distributing available state resources to the network of California fairs based on criteria for state allocations approved by the Secretary of Food and Agriculture. The criteria for the distribution of available state resources to the network of California fairs shall not include a consideration of the structure that governs the fair.
Creating a framework for administration of the network of California fairs allowing for maximum autonomy and local decisionmaking authority, and conducting, or causing to be conducted, annual fiscal audits and periodic compliance audits.
Conducting fiscal and performance audits of county fairs and citrus fruit fairs that are requested by the fair that is the subject of the audit, and that the Department of Food and Agriculture deems to be necessary.
Guiding and providing incentives to fairs to seek matching funds and generate new revenue from a variety of sources.
Supporting continuous improvement of fair programming to ensure that California fairs remain highly relevant community institutions.
From the total revenue received by the department, the Legislature shall annually appropriate to the department those sums as it deems necessary for the following purposes:
For the oversight of the network of California fairs receiving money from the Fair and Exposition Fund.
For the auditing of all district agricultural association fairs, county fairs, and citrus fruit fairs.
Notwithstanding any other law, a return filed with the California Department of Tax and Fee Administration (CDTFA) to report gross receipts for sales and use tax purposes shall segregate the gross receipts of the seller and the sales price of the property on a line or a separate form as prescribed by the CDTFA when the place of sale in this state or for use in this state is on or within the real property of a fair or any real property of a fair that is leased to another party.
The CDTFA shall add a line to a current return form or develop a separate form for purposes of this section.
The CDTFA shall report the amount of the total gross receipts segregated on the returns filed for the prior fiscal year pursuant to subdivision (a) to the Department of Finance on or before November 1 of each year.
The total gross receipts shall be subject to review by the CDTFA for errors. The review may be a review of a sample of returns. The CDTFA shall note any errors identified in the review and the approximate impact of those errors on the total gross receipts in its report to the Department of Finance to allow an adjusted total gross receipt amount to be determined.
An amount equal to 2 percent of the total amount of gross receipts, or adjusted gross receipts, for the prior fiscal year reported to the Department of Finance by the CDTFA as specified in subdivision (d) shall be included in the next annual Governor’s Budget for the Department of Food and Agriculture for allocation to fairs pursuant to Section 3204. No later than 30 days after the enactment of the annual Budget Act, the amount appropriated by the Legislature to the Department of Food and Agriculture pursuant to this section shall be transferred by the Controller to the Fair and Exposition Fund in the State Treasury and shall be continuously appropriated and available to be allocated pursuant to Section 3204.
The CDTFA shall be paid the actual cost for administering this section from the funds appropriated pursuant to subdivision (e) before any allocation is made to fairs in accordance with Section 3204.
Any revenues deposited into the Fair and Exposition Fund pursuant to this section shall only be allocated to a fair if nonmanagement employees at that fair, or nonmanagement employees at any real property of that fair that is leased to another party, are provided the following working conditions:
The employee receives a meal period of not less than 30 minutes for a work period of more than five hours per day, unless the work period per day of the employee is less than six hours and the meal period is waived by mutual consent of both the employer and the employee.
The employee receives a second meal period of not less than 30 minutes for a work period of more than 10 hours per day, unless the work period per day of the employee is less than 12 hours, the second meal period is waived by mutual consent of both the employer and the employee, and the first meal period was not waived.
Any work in excess of 8 hours in one workday, any work in excess of 40 hours in any one workweek, and the first 8 hours worked on the seventh day of work in any one workweek is compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.
Any work in excess of 12 hours in one day is compensated at the rate of no less than twice the regular rate of pay for an employee.
Any work in excess of eight hours on any seventh day of a workweek is compensated at the rate of no less than twice the regular rate of pay for an employee.
This subdivision does not apply to full-time carnival ride operators employed by a traveling carnival.
For purposes of this subdivision, “employee” does not include an employee covered by a valid collective bargaining agreement if that agreement expressly provides for all of the following:
Wages, hours of work, and working conditions of the employees.
Meal periods for the employees, including final and binding arbitration of disputes concerning application of its meal period provisions.
Premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage.
Any unallocated balance from Section 3202, 3203, or 3205, revenue deposited into the Fair and Exposition Fund pursuant to Section 19614 of the Business and Professions Code, and funding appropriated by the Legislature or otherwise designated for California fairs pursuant to this chapter or any other law is hereby appropriated without regard to fiscal years for allocation by the Secretary of Food and Agriculture for capital outlay to California fairs for fair projects involving public health and safety, for fair projects involving major and deferred maintenance, for fair projects necessary due to any emergency, for projects that are required by physical changes to the fair site, for projects that are required to protect the fair property or installation, such as fencing and flood protection, and for the acquisition or improvement of any property or facility that will serve to enhance the operation of the fair.
A portion of the funds subject to allocation pursuant to subdivision (a) may be allocated to California fairs for general operational support. It is the intent of the Legislature that these moneys be used primarily for those fairs whose sources of revenue may be limited for purposes specified in this section.
Notwithstanding any other law, at the direction of the Secretary of Food and Agriculture with the concurrence of the Director of Finance, all revenues that are deposited into the Fair and Exposition Fund pursuant to Section 3203 may first be deposited into a separate account in the fund to be known as the California Fairs Trust Account and, notwithstanding Section 13340 of the Government Code, are continuously appropriated from that account to the Department of Food and Agriculture, for allocation by the secretary, at the secretary’s discretion, for the purposes set forth in paragraphs (1) to (4), inclusive. The concurrence of the Director of Finance shall be required for allocations pursuant to paragraph (1). Allocations pursuant to paragraphs (2) to (4), inclusive, shall be made with the concurrence of the Joint Committee on Fairs Allocation and Classification.
For the repayment of the principal of, interest on, and costs of issuance of, and as security, including any coverage factor, pledged to the payment of, bonds issued or to be issued by a joint powers agency or other debt service or expense, including repayment of any advances made or security required by any provider of credit enhancement or liquidity for those bonds or other indebtedness or expenses of maintaining that credit enhancement or liquidity, incurred for the purpose of constructing or acquiring capital improvements at fairgrounds, maintaining facilities at fairs, health, fire and life safety, and emergency services projects, or handicapped access compliance projects at fairgrounds or for the purpose of refunding bonds or other indebtedness incurred for those purposes. As used in this paragraph, “coverage factor” means revenues in excess of the amount necessary to pay debt service on the bonds or other indebtedness, up to an amount equal to 100 percent more than the amount of that debt service, which a joint powers agency, pursuant to the resolution or indenture under which the bonds or other indebtedness are or will be issued, pledges as additional security for the payment of that debt service or is required to have or maintain as a condition to the issuance of additional bonds or other indebtedness. Notwithstanding any other law, the department may also commit any other funds available for allocation pursuant to this chapter to complete projects funded under this paragraph in the priority described in this paragraph.
For health, fire and life safety, and emergency services improvement projects at fairs, California Code of Regulations compliance projects, and maintenance projects at fairgrounds that are necessary for public safety and security.
For capital improvement projects at fairgrounds. When making determinations to fund capital improvements pursuant to this paragraph, the secretary may grant priority status to renewable energy generation projects or to projects that meet or exceed the standards of the California Environmental Protection Agency.
For the payment of expenses incurred in developing and operating revenue generating projects at fairs, or that directly benefit fairs, including the payment of expenses incurred in establishing and operating horse racing and future gaming-related facilities, the establishment of pilot projects to restructure the current fair system, and for projects realizing a cost savings for more efficient use of existing fair resources.
The secretary may not make an allocation for purposes of paragraphs (2) to (4), inclusive, of subdivision (a) until the payments required in any fiscal year pursuant to paragraph (1) of subdivision (a) have been funded.
Pursuant to subdivision (a), the Joint Committee on Fairs Allocation and Classification shall review and concur, or not concur, with the secretary’s determination of the allocations to be made pursuant to paragraphs (2) to (4), inclusive, of subdivision (a) in total, and the committee shall not add to, or delete projects or line items from, the proposed allocations.
Approval of the Joint Committee on Fairs Allocation and Classification shall be deemed complete when one of the following conditions is met:
The annual Budget Act is enacted.
If the secretary’s recommendations are received by the Joint Committee on Fairs Allocation and Classification after the enactment of the annual Budget Act, the recommendations shall be deemed approved 30 days after they are received unless they are rejected by the committee.
If the Joint Committee on Fairs Allocation and Classification does not concur with the secretary’s recommendations, the secretary may resubmit another set of recommendations that consider the committee’s review and suggestions. The resubmitted recommendations shall be deemed approved 30 days after they are received by the committee.
The payments required in any fiscal year for the purposes of paragraph (1) of subdivision (a) shall be made before any transfer is made pursuant to subdivision (g).
If the revenues deposited into the separate account exceed the amount necessary to satisfy the purposes of subdivision (f) in any fiscal year, the amount remaining shall be transferred to the Fair and Exposition Fund for allocation in accordance with Section 3204.
All of the costs of administering the account created by subdivision (a) shall be charged to the account.
All revenues payable to the state and deposited in a separate account in the fund pursuant to Section 3205 that are allocated by the secretary for the purposes of paragraph (1) of subdivision (a) of Section 3205 are hereby pledged for the repayment of the principal of, and interest on, bonds issued by a joint powers agency, or of other debt service or expense incurred for the purposes described in that paragraph.
Any joint powers agency requesting money in connection with the issuance of bonds for the purposes described in paragraph (1) of subdivision (a) of Section 3205 shall file an application with the secretary, in the form required by the secretary.
The secretary shall, upon review of the applications, prepare a statement of allocation of money to the joint powers agency, in the priority the secretary deems appropriate.
The secretary shall adopt regulations governing the allocation procedures to be followed in implementing this section.
It is the intent of the Legislature in enacting Sections 3206, 3207, and 3209 to provide the revenues necessary for the financing by joint powers agencies of the described facilities and projects, which shall be deemed to be public capital improvements within the meaning of Article 4 (commencing with Section 6584) of Chapter 5 of Division 7 of Title 1 of the Government Code. Deposits into the account in the fund in accordance with paragraph (1) of subdivision (a) of Section 3205 shall continue through and include either the 20th year after the initial calendar year in which the revenues are collected, or whatever period of time is necessary to repay any borrowings of the joint powers funding mechanism.
The State of California does hereby pledge to and agree with the holders of any bonds or other indebtedness issued, and with those joint powers agencies that may enter into project agreements with fairs or other third parties or authorize bonds or other indebtedness to be issued, in reliance on the revenue and deposits set forth in Section 3203 or the allocations set forth in subdivision (a) of Section 3205, that the state will not alter or change the structure of funding and deposits set forth in, or the pledge of funds for, debt service, security, including any coverage factors, and expenses, pursuant to those sections until the bonds and other indebtedness are fully paid or discharged and the project is fully performed or discharged. However, nothing precludes any alteration or change if and when adequate provision has been made by law for the protection from impairment of the contracts represented by the bonds, other indebtedness and projects, and the right to so alter or change is hereby reserved. Joint powers agencies may include this pledge and undertaking of the state in the bonds, agreements evidencing other indebtedness, and project agreements.
The provisions of this chapter related to the issuance of bonds pursuant to Sections 3205 to 3209, inclusive, insofar as they are substantially the same as existing code provisions relating to the same subject matter, shall be construed as restatements and continuations thereof, and not as new enactments.
Notwithstanding any other law, neither the state nor the department is liable for any contract or tort of, or any action taken or any failure to act by, any fair in the network of California fairs that does not comply with the requirements of Section 3214.
No member of the fair board, or any employee or agent thereof, is personally liable for the contracts or actions of the fair board, and no member of the fair board or employee or agent thereof is responsible individually in any way to any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for their own individual acts of dishonesty or crime. No member of the fair board shall be held responsible individually for any act or omission of any other member of the fair board. The liability of the members of the fair board is several and not joint, and no member is liable for the default of any other member.
The secretary shall prepare and submit to the Department of Finance an estimate of revenue to be deposited into the fund and allocations to be made from the fund for each fiscal year.
The Director of Finance may authorize short-term cashflow loans from the unappropriated surplus of the General Fund to the Fair and Exposition Fund if both of the following conditions are met:
The loan will be repaid during the same fiscal year in which it is made.
No loan exceeds the amount remaining to be allocated in any fiscal year or 75 percent of the revenue estimated to be deposited into the Fair and Exposition Fund during the remainder of the fiscal year.
The secretary shall notify the Controller when loans under this section are no longer required and any unnecessary loan funds shall be returned to the General Fund.
In order to maintain their eligibility to receive funds or to utilize state assets, the fairs specified in Section 3101 shall do all of the following:
File an annual statement of operations with the department.
Conduct an annual fair that includes agriculture and other community-relevant exhibits and competitions.
The department may withhold or restrict allocations to fairs that do not comply with this section or the fiscal standards or administrative standards established by the department. The department shall establish an appeal process for fairs regarding funds that are withheld or restricted.
The authority of the department shall include, but is not limited to, requiring the California Exposition and State Fair to meet all applicable standards prescribed by the department.
The department may delegate approval authority for matters as the department may determine to the Board of Directors of the California Exposition and State Fair if the fair complies with this section.
Notwithstanding any other law, the department may assume all rights, duties, and powers of the Board of Directors of the California Exposition and State Fair if the department determines there is insufficient fiscal or administrative control. The board of directors shall again exercise these rights, duties, and powers when the department determines that the fair has been restored to solvency and is in compliance with this section.
The department may petition a court of competent jurisdiction for an order appointing the department, or a person designated by the department, as a receiver if it determines that the California Exposition and State Fair is insolvent, or is in imminent danger of insolvency. The court shall appoint a receiver upon showing that the fair is insolvent or is in imminent danger of insolvency.
For purposes of this section, “insolvency” means that the California Exposition and State Fair is unable to discharge its debts as they become due in the usual course of business.
The General Fund and the Fairs and Exposition Fund shall be held harmless from any debts, liabilities, settlements, judgments, or liens incurred by the California Exposition and State Fair, including any deficiency in operating funds.
The authority of the department shall include, but is not limited to, requiring district agricultural associations to meet all applicable standards prescribed by the department.
The department may delegate approval authority for matters as the department may determine to the board of directors if the board complies with this section.
Notwithstanding any other law, and in order to protect the integrity of the Fair and Exposition Fund, the department may assume any or all rights, duties, and powers of the board of directors of a district agricultural association if the department reasonably determines that there is insufficient fiscal or administrative control. The board of directors shall again exercise these rights, duties, and powers when the department determines that the fair is in compliance with this section.
The department may petition a court of competent jurisdiction for an order appointing the department, or a person designated by the department, as a receiver if it determines that the fair is insolvent, or is in imminent danger of insolvency. The court shall appoint a receiver upon a showing that the fair is insolvent, or is in imminent danger of insolvency.
For purposes of this section, “insolvency” means that the district agricultural association is unable to discharge its debts as they become due in the usual course of business.
The authority of the department shall include, but is not limited to, requiring county fairs and citrus fruit fairs to do all of the following:
Meet all applicable standards prescribed by the department.
Submit to the department for review and approval every five years a written agreement specifying the operational, financial, and administrative responsibilities between the entity producing the fair and the host county or the host agency.
Funds appropriated from the Fair and Exposition Fund may be expended for the payment of premiums, for capital outlay purposes, including the purchase of land and equipment for construction and improvements, and for the general support and maintenance of the network of California fairs and for the department’s oversight of the network of California fairs.
Notwithstanding Section 3216, any unanticipated revenues, other than any allocation from the state, that are in excess of the approved budget for any fiscal or calendar year of any California fair shall be retained by that fair.
These funds may be expended, without regard to any fiscal year, by any fair to which Section 3216 applies, upon approval by the board of directors of that fair, which shall be recorded in the official minutes of the fair approving a plan of expenditure.
If any California fair does not hold a fair in any year because of war conditions, or because the grounds or buildings of the fair have been taken over and occupied by the United States or its armed forces, or that fair is not held due to an act of God, or any unavoidable catastrophe, natural or human made, the fair shall nevertheless submit an annual statement of operations and shall not resume operations without a budget that has been approved by the department.
The department may make and may administer loans from the Fair and Exposition Fund to any fair in the network of California fairs according to agreements that are specific to the circumstances that gave rise to a receiving fair’s need for a loan, subject to the fair’s demonstrated ability to repay the loan.
Notwithstanding any other law, any fair qualified to receive an allocation that has complied with the requirements set forth in subdivision (b) of Section 3212, with the approval of the department, may expend available funds for the construction or operation of recreational and cultural facilities of general public interest.
Notwithstanding any other law, the 1-A District Agricultural Association may, with the approval of the department, expend any money available for expenditure by the association, for construction, repairs, and equipment.
All money appropriated pursuant to this chapter to the California Exposition and State Fair, the Los Angeles County Fair, the Sixth District Agricultural Association, known and designated as Exposition Park, the citrus fruit fairs, as defined in Section 4603, and the 1-A District Agricultural Association, is exempt from Section 16304 of the Government Code, and shall remain available for expenditure from year to year until expended.
Appropriations and allocations from the Fair and Exposition Fund made pursuant to this chapter, other than those made under subdivision (b) of Section 3201, are exempt from Section 16304 of the Government Code. The date of the executive order is deemed to be the date when the appropriation becomes available for expenditure.
All appropriations and allocations made by this article that are not exempted by this section from Section 16304 of the Government Code are subject to that section.
The books and records of any county or citrus fruit fair or exposition receiving an appropriation or an allocation from the Fair and Exposition Fund, insofar as they relate to revenues and expenditures for fair or exposition purposes, may be audited by the Department of Finance.
When any county or citrus fruit fair or exposition receiving an appropriation or allocation from the Fair and Exposition Fund contracts with an association to conduct the fair or exposition, the contract shall include a provision that the books and records of the association shall be subject to audit by the Department of Finance at the discretion of the department.
PART 2. CALIFORNIA EXPOSITION AND STATE FAIR [3301. - 3361.]
CHAPTER 1. General Provisions [3301. - 3307.]
It is the intent of the Legislature to vitalize the California Exposition and State Fair by creating a new entity in state government managed by a board of directors with sufficient autonomy for efficient operation balanced by appropriate state oversight. The board of directors shall develop a policy which provides managerial and fiscal responsibility and shall work towards a goal of fiscal independence from state General Fund support. The board of directors shall develop a policy which provides for an innovative program including the concept of an agriculturally themed exposition which would communicate the issues surrounding the production and marketing of food, fiber, and plant material to the general public and such other concepts as are feasible.
No changes shall be made in the uses of the flood plain on California Exposition and State Fair property until the board has adopted a management plan for the flood plain area which complies with the law concerning Bushy Lake Preservation in Chapter 9 (commencing with Section 5830) of Division 5 of the Public Resources Code and with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
As used in this part, “board” or “board of directors” means the Board of Directors of the California Exposition and State Fair.
All records, information, equipment, and real and personal property held by the Department of Parks and Recreation relating to the former California Exposition and State Fair administered and managed by the Department of Parks and Recreation shall be transferred to the California Exposition and State Fair created by Section 3311.
All civil service employees of the Division of Exposition and State Fair of the Department of Parks and Recreation shall retain all of their positions, status, rights, privileges, and benefits. The California Exposition and State Fair shall not be required to retain any unnecessary officer or employee. The Department of Parks and Recreation shall endeavor to transfer as many of the affected employees as possible to other positions within the Department of Parks and Recreation. The California Exposition and State Fair created by Section 3311 shall endeavor to employ as many of the affected employees as possible.
The California Exposition and State Fair created by Section 3311 shall assume all of the obligation for any revenue bonds issued pursuant to Chapter 1072 of the Statutes of 1957.
Nothing in this part shall impair any of the rights given the holders of bonds sold by the State Public Works Board pursuant to the State Building Construction Act of 1955 (Part 10b (commencing with Section 15800) of Division 3 of Title 2 of the Government Code).
All activities conducted at the California Exposition and State Fair are subject to the noise control ordinance, Chapter 66 (commencing with Section 66.101) of the Sacramento City Code, adopted by the City of Sacramento and in effect on December 1, 1983. Amendments to the ordinance made after December 1, 1983, are not applicable to the California Exposition and State Fair.
The California Exposition and State Fair may obtain a variance from the noise ordinance pursuant to the provisions in the ordinance relating to a variance.
CHAPTER 2. Organization [3311. - 3317.]
The California Exposition and State Fair is hereby created as a separate independent entity in state government. The California Exposition and State Fair shall be governed by its board of directors.
The governing body of the California Exposition and State Fair shall be an 11-member board of directors. The directors shall be residents of California and shall be appointed as follows:
Nine directors shall be appointed by the Governor with the consent of the Senate. The directors appointed by the Governor shall have general knowledge of, interest in, and expertise in one or more of the following areas: fair management, city or county government, horseracing, the arts, exhibiting, the media, education, youth, commerce and commercial products of the state, industry and industrial products of the state, agricultural production and forest industries, the entertainment industry, livestock and poultry, sports, recreation, fisheries, oceanography, organized labor, and finance and banking.
Five of the directors appointed by the Governor shall be knowledgeable in the production, processing, or marketing of agricultural products and may be appointed from lists of nominees submitted for consideration to the Governor from California agricultural organizations, district agricultural associations, and county and citrus fruit fairs.
One of the directors appointed by the Governor shall be a public member.
Three of the directors appointed by the Governor shall be representative, to the extent possible, of areas of knowledge, interest, and expertise enumerated in this paragraph.
One director shall be appointed by the Speaker of the Assembly and one director shall be appointed by the Senate Committee on Rules. These persons shall be representative, to the extent possible, of areas of knowledge, interest, and expertise enumerated in paragraph (1).
Except for directors appointed by the Speaker of the Assembly, the directors shall be appointed for four-year terms. The appointing authority shall appoint directors to fill vacancies which occur during a term, and except for directors appointed by the Speaker of the Assembly, the appointments shall be for the remainder of the unexpired term. Of the four vacancies that will occur on December 31, 1986, two of the vacancies shall be filled by persons appointed pursuant to paragraph (2) of subdivision (a).
The board may annually select a chairperson from among the directors.
The directors shall serve without compensation, but shall be reimbursed for all necessary expenses actually incurred in the performance of their duties.
Any director who misses three consecutive regular meetings of the board without permission of the board shall be deemed to have resigned from the board.
A director may be removed for cause by the Governor, upon recommendation of the board.
The board may appoint advisory committees. Advisory committees may provide information and advice to the board with respect to the operations and management of the California Exposition and State Fair or such other matters as the board deems appropriate.
The California State Fair Advisory Commission is hereby abolished. Nothing in this part shall, however, prevent the members of the former commission from being appointed to the board or advisory committees.
The two Members of the Legislature who represent the Assembly and Senate district in which the California Exposition and State Fair facilities are located and the chairperson and vice chairperson of the Joint Committee on Fairs Allocation and Classification shall meet with and, except as otherwise provided by the Constitution, advise the board to the extent that such advisory participation is not incompatible with their duties as Members of the Legislature.
CHAPTER 3. Administration [3321. - 3322.]
The board shall appoint, pursuant to Section 4 of Article VII of the California Constitution, a general manager of the California Exposition and State Fair who shall serve at the pleasure of the board. The term of office and duties of the general manager shall be determined by the board.
The following officers of the California Exposition and State Fair shall be appointed by the Governor, pursuant to Section 4 of Article VII of the California Constitution, upon recommendation of the board:
Deputy general manager.
Program manager.
Marketing manager.
The state officers appointed pursuant to subdivision (a) shall serve at the pleasure of the board, under the direction of the general manager.
CHAPTER 4. Powers and Duties [3331. - 3334.]
The board shall serve as the policymaking body for the California Exposition and State Fair and shall have full responsibility for the year-round management and operation of all facilities of the California Exposition and State Fair.
The board shall provide for an annual fair in one or more seasonal divisions in Sacramento County of the industries and industrial products of the state and commercial products exported and imported through the ports of the state. The fair shall be designated the California State Fair.
The board may do any of the following:
Contract.
Accept funds or gifts of value from the United States or any person to aid in carrying out the purposes of this part.
Conduct or contract for programs, either independently or in cooperation with any individual, public or private organization, or federal, state, or local governmental agency.
Establish and maintain a bank checking account or a savings and loan association account, approved by the Director of Finance in accordance with Sections 16506 and 16605 of the Government Code, for depositing funds received by the California Exposition and State Fair. Notwithstanding Section 13340 of the Government Code, all funds maintained in an account authorized by this subdivision are continuously appropriated to the board, without regard to fiscal year, to carry out this part.
Establish a program for paying vendors who contract with the California Exposition and State Fair.
Make or adopt all necessary orders, rules, or regulations for governing the activities of the California Exposition and State Fair. Notwithstanding Section 14, any orders, rules, or regulations adopted by the board are exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. For informational purposes only, however, any order, rule, or regulation adopted by the board may be transmitted to the Office of Administrative Law for filing with the Secretary of State pursuant to Section 11343 of the Government Code.
Delegate to the officers and employees of the California Exposition and State Fair the authority to appoint civil service personnel according to state civil service procedures. The board may also delegate to officers and employees of the California Exposition and State Fair the independent authority to appoint marshals and police as authorized by subdivision (j).
Operate a payroll system for paying employees, and a system for accounting for vacation and sick leave credits of employees.
Delegate to the officers and employees of the California Exposition and State Fair the exercise of powers vested in the board as the board may deem desirable for the orderly management and operation of the California Exposition and State Fair.
Appoint all necessary marshals and police to keep order and preserve peace at the California Exposition and State Fair premises on a year-round basis who shall have the powers of peace officers specified in Section 830.2 of the Penal Code. A peace officer of the Department of the California Highway Patrol may be employed as a peace officer while off duty from his or her regular employment, subject to those conditions as may be set forth by the Commissioner of the Department of the California Highway Patrol. At least 75 percent of the persons appointed pursuant to this subdivision shall possess the basic certificate issued by the Commission on Peace Officers Standards and Training. The remaining 25 percent may be appointed if the person has completed a Peace Officer Standards and Training-certified academy, or possesses a Level One Reserve Certificate (as defined in Section 832.6 of the Penal Code). Of this 25 percent, any portion may be comprised of probation officers certified under Section 832. Nothing in this subdivision shall be construed to give probation officers appointed pursuant to this subdivision peace officer powers pursuant to Section 830.2 of the Penal Code.
With the approval of the Department of General Services, purchase, acquire, or hold real or personal property, and beautify or improve that property. Any acquisition of land or other real property is subject to the approval of the Department of General Services, and in the case of the purchase of real property, is subject to the Property Acquisition Law (Part 11 (commencing with Section 15850) of Division 3 of Title 2 of the Government Code).
With the approval of the Department of General Services, make permanent improvements upon publicly owned real property adjacent to, or near the vicinity of, the real property of the California Exposition and State Fair when the improvements materially benefit the property of the California Exposition and State Fair.
Lease, with the approval of the Department of General Services, any of its property for any purpose for any period of time.
Use or manage any of its property, with the approval of the Department of General Services, jointly or in connection with any lessee or sublessee, for any purpose approved by the board.
With the approval of the Department of General Services, pledge any and all revenues, moneys, accounts, accounts receivable, contract rights, and other rights to payment of whatever kind, pursuant to such terms and conditions as are approved by the board. Any issuance of bonds, contracts entered into, debts incurred, settlements, judgments, or liens under this section or pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code, shall not directly, indirectly, or contingently obligate the state or any political subdivision thereof to levy or to pledge any form of taxation therefor or to make any appropriation for their payment. Any such bond shall contain on the face thereof a statement to the following effect: “Neither the full faith and credit nor the taxing power of the State of California is pledged to the payment of the principal of, or interest on this bond.”
Notwithstanding any other provision of law and in accordance with procedures established by the board, the board may enter into agreements to secure donations, memberships, and corporate and individual sponsorships, and may enter into marketing and licensing agreements for the receipt of money, or services or products in lieu of money, and may employ an entity or individual, or create and participate in an entity, or enter into an agreement with an entity or person to develop, solicit, sell, and service these agreements. The compensation for the entity or person shall be established by the board.
Notwithstanding any other law, the board is authorized to enter into an agreement for the use of the Cal Expo Lot Z property with the City of Sacramento and the County of Sacramento for a term of five years, provided, however, that in no event shall the California Exposition and State Fair or the State of California be liable for any damages or losses arising directly or indirectly as a result of the use of Cal Expo Lot Z by the City of Sacramento and the County of Sacramento. Any agreement entered into pursuant to this section shall authorize the City of Sacramento and the County of Sacramento to provide on the Cal Expo Lot Z property emergency shelter and other services described in subdivision (b) to individuals experiencing homelessness. The city and the county may contract with a service provider for this purpose.
Emergency shelter and services provided on the Cal Expo Lot Z property may include, but are not limited to, the following:
Full-service, interdisciplinary resources, including mental health and substance abuse programs.
Emergency and interim housing solutions, such as tiny homes, noncongregate shelters, or dormitory style housing, subject to the requirements of Section 8698.4 of the Government Code.
Any agreement for the use of the Cal Expo Lot Z property shall be approved at an open meeting by the City Council of the City of Sacramento and the Board of Supervisors of the County of Sacramento.
First priority shall be given to persons illegally camping in areas of the American River Parkway that have a high risk of fire.
Second priority shall be given to persons illegally camping within sensitive habitat areas of the American River Parkway.
Third priority shall be given to persons illegally camping within other areas of or on lands that are adjacent to the American River Parkway.
Any agreement entered into pursuant to this section shall be exempt from the Bushy Lake Preservation Act (Chapter 9 (commencing with Section 5830) of Division 5 of the Public Resources Code) and the Urban American River Parkway Preservation Act (Chapter 10 (commencing with Section 5840) of Division 5 of the Public Resources Code). When establishing emergency shelter and other services on the Cal Expo Lot Z property, the city and the county shall take the following actions in accordance with the intent of the Bushy Lake Preservation Act and the Urban American River Parkway Preservation Act:
Locating shelter facilities on the portion of the Cal Expo Lot Z property that is as far away as practicable from the sensitive habitat portions of Bushy Lake and is designed to minimize the facility’s footprint within the American River Parkway Plan.
Incorporating fencing to discourage, to the extent practical, residents from entering or going to the sensitive Bushy Lake habitat areas.
Incorporating measures to prevent trespassing or unlawful entry into the developed portions of Cal Expo or any other area not associated with Parking Lot Z.
For purposes of this section “Cal Expo Lot Z” means a portion of the real property located at 500 Ethan Way, in the City of Sacramento, consisting of approximately 8.89 acres and commonly known as Cal Expo Lot Z.
Nothing in this section reduces or waives any requirements to comply with the requirements necessary to qualify for state homelessness funding.
For purposes of this section, any agreement is restricted to Lot Z, and not to interfere with the operations taking place within the state’s fairgrounds.
If the board at any time sends out a request for proposal that could result in an agreement between the board and another party on any matter for a term in excess of 20 years, a copy of that request for proposal shall be sent to the Assembly Committee on Rules and the Senate Committee on Rules at the time at which the request is sent to prospective bidders.
The California Exposition and State Fair may enter into a joint powers agreement with a joint powers authority created pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code for the purpose of planning, designing, and constructing real property improvements, including new construction, alteration, extension, betterment, and repair, and the purchase of fixed and movable equipment. The planning, designing, and constructing of these improvements shall be undertaken in accordance only with those restrictions applicable to the joint powers authority.
The board shall submit a report to the Legislature and Governor on or before May 31st of each year with respect to the financial condition, present operations, and future planned activities of the California Exposition and State Fair.
All records of the California Exposition and State Fair for entries in any of its events are public records, except entries in events which are scheduled for future judging or overnight entries in races on which there is parimutuel wagering prior to such events, judging, or races.
CHAPTER 5. State Fair Leasing Authority [3351. - 3361.]
There is hereby created the State Fair Leasing Authority, a joint powers authority formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code, which shall be composed of the Department of Food and Agriculture, the Department of Finance, the Department of General Services, and the California Exposition and State Fair.
For the purposes of Section 6502 of the Government Code, the common powers to be exercised by the State Fair Leasing Authority shall be the powers of a district agricultural association.
The authority shall be governed by a board of directors, which shall be composed of the Secretary of Food and Agriculture, the Director of Finance, the Director of General Services, and four individuals, appointed as provided in paragraph (1), who are members of the Board of Directors of the California Exposition and State Fair. The Treasurer and Controller shall be members of the board of the authority only for the purposes of hearing and deciding upon matters related to the issuance of revenue bonds pursuant to this chapter. The Director of Finance shall serve as chairperson of the authority. All meetings of the authority shall be open and public.
Of the four appointed members of the Board of Directors of the California Exposition and State Fair, one shall be appointed by the Speaker of the Assembly, one shall be appointed by the Senate Committee on Rules, and two shall be appointed by the Governor.
The authority may contract with consultants as approved by the board of the authority. The authority shall not employ any other staff.
The general manager of the California Exposition and State Fair may serve only in an advisory capacity to the authority.
The authority is a “department” for the purposes of hearings pursuant to Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code.
The California Exposition and State Fair shall provide clerical services and the use of its staff without charge to the authority. The Department of Finance, the Department of Food and Agriculture, the Department of General Services, and the California Horse Racing Board shall cooperate with the authority, and, upon request of the chairperson of the authority, shall provide the authority with the reasonable and periodic use of their staffs.
The Attorney General shall serve as counsel for, and adviser to, the authority, and shall approve outside counsel to the authority in furtherance of the provisions of this chapter, as requested by the chairperson of the authority.
The costs, if any, for services to the authority specified in subdivisions (a) and (b) shall be paid for by the authority, with funds generated pursuant to this chapter. Any costs in excess of the funds available to the authority shall be paid by the California Exposition and State Fair.
The authority may enter into leases or other agreements for the use of the State Fair Race Track or any other property owned or controlled by the California Exposition and State Fair which are necessary to further the purposes of Section 3331 or to provide horse racing at the State Fair Race Track. A lease or agreement entered into pursuant to this section shall be on behalf of the California Exposition and State Fair, and the State Fair shall continue in control of its property, subject to the conditions and terms of that lease or agreement.
The California Exposition and State Fair, in consultation with the authority, shall prepare a master plan approved by the board of directors of the fair for the long-range comprehensive development and improvement of, and construction upon, the property of the California Exposition and State Fair. The plan shall prescribe the amounts which may be expended for the various features of the plan, the period authorized for the completion of each project, and the terms of any revenue bond financing undertaken with respect to the plan. The plan shall require that any revenue bond financing shall be rated in one of the four highest rating categories by two nationally recognized rating agencies. Upon its completion, the master plan shall be submitted to the Joint Legislative Budget Committee for review. The master plan is subject to amendment by the authority, with the approval of the Board of Directors of the California State Fair.
The California Horse Racing Board, at the request of the authority, shall certify the eligibility of any prospective lessee or user of the property to be licensed to conduct horse racing at the State Fair Race Track.
In leasing, or entering into agreements for the use of, the State Fair Race Track or other property owned or controlled by the California Exposition and State Fair, the authority shall follow the same procedures, as appropriate, as the Department of General Services follows in leasing or entering into similar agreements for other state real property. The authority shall also consult with, and present for comment the lease or agreement to, the governing bodies of the City and County of Sacramento prior to awarding the lease or entering into the agreement.
Prior to awarding a lease of, or entering into an agreement for the use of, the State Fair Race Track or other property owned or controlled by the California Exposition and State Fair, the authority shall consider all the factors concerning appropriate capital improvements of the race track, the financing of the race track, additional racing opportunities, and the use of new or additional properties or facilities, including, but not limited to, a grandstand or grandstand improvements, which factors shall be considered in the award of the lease or entering into the agreement. The authority shall also consult with, and present for comment the lease or agreement to, the governing bodies of the City and County of Sacramento prior to awarding the lease or entering into the agreement.
If the authority makes a determination pursuant to this chapter about an action it proposes to take in awarding the State Fair Race Track lease or entering into the agreement, it shall report to the Legislature, setting forth the procedures followed by the authority in reaching its determination and the reasons the proposed award or agreement is in the best interests of the state. The authority shall also make recommendations regarding any additional legislation which it deems necessary. However, no legislative action is required to make a lease or agreement entered into by the authority effective and operative.
After the award of a lease or upon entering into an agreement for the use of State Fair property, the authority shall meet periodically to review the operation of the lease or agreement, and the master plan, and to consider any other related matters. It shall also make any recommendations that it deems proper to the Legislature, other state agencies, including, but not limited to, the California Exposition and State Fair, and to the lessee or user of the property.
The authority, in the exercise of its powers, may pledge any and all revenues, moneys, accounts, accounts receivable, contract rights, and other rights to payment of any kind, pursuant to the terms and conditions approved by the authority. The revenues, moneys, accounts, accounts receivable, contract rights, and other rights to payment pledged by the authority or its assignees constitute a lien and security interest which immediately attaches to the property so pledged, and is effective, binding, and enforceable against the authority, its successors, purchasers of the property so pledged, creditors, and all others asserting rights therein, to the extent set forth, and in accordance with, the terms and conditions of the pledge, irrespective of whether those persons have notice of the pledge and without the need for any physical delivery, recordation, filing, or further act.
The California Exposition and State Fair shall be responsible for any debt incurred pursuant to this chapter, and the capital of the California Exposition and State Fair shall be used to guarantee any indebtedness.
The State of California pledges to, and agrees with, the holders of any bonds, other indebtedness, or obligations for the financing of the improvements described in the master plan pursuant to Section 3355, and which are issued or executed and delivered by the authority, or the California Exposition and State Fair, that the state will not alter or change the structure of funding of, and deposits to, the authority or to the California Exposition and State Fair pursuant to the provisions of Article 9.2 (commencing with Section 19605) of Chapter 4 of Division 8 of the Business and Professions Code, or the pledge of funds for debt service, security, including any coverage factors, and expenses entered into pursuant to this chapter until the bonds, other indebtedness, or obligations are fully paid or discharged or have been fully provided for in accordance with their terms. However, nothing precludes any alteration or change if and when adequate provision has been made by law for the protection from impairment of the contract represented by the bonds, other indebtedness, or obligations, and the right to alter or change is hereby reserved. The authority, and the California Exposition and State Fair, are each authorized to include this pledge and undertaking of the state in their bonds, agreements evidencing other indebtedness, and other indebtedness or obligations for the financing of the improvements described in the master plan pursuant to Section 3355.
The authority shall notify the Joint Legislative Budget Committee at least 90 days prior to authorizing the sale of revenue bonds pursuant to this chapter. The notice shall specify all the terms and conditions of the revenue bonds, including, but not limited to, the total amount of the bonds, the revenue source, and the repayment period. Any bond so issued shall contain on its face a statement to the following effect: “Neither the full faith and credit nor the taxing power of the State of California is pledged to the payment of the principal of, or interest on, this bond.”
PART 3. DISTRICT AGRICULTURAL ASSOCIATIONS [3801. - 4363.]
CHAPTER 1. Definitions [3801. - 3806.]
Unless the context otherwise requires, the definitions in this chapter govern the construction of this part.
“Association” means a district agricultural association which is formed pursuant to this chapter.
“Board” means the board of directors of an association.
“Director” means a member of the board of directors of an association.
“District” means an agricultural district which is formed pursuant to this chapter.
For the purposes of Article 1 (commencing with Section 4101) of Chapter 6 of this part, “agency” means the Natural Resources Agency.
CHAPTER 3. Organization and Administration [3951. - 3968.]
Fifty or more persons, who are residents of a district, may form an association to be known as and designated as the ____ District Agricultural Association, for the following purposes:
Holding fairs, expositions and exhibitions for the purpose of exhibiting all of the industries and industrial enterprises, resources and products of every kind or nature of the state with a view toward improving, exploiting, encouraging, and stimulating them.
Constructing, maintaining, and operating recreational and cultural facilities of general public interest.
Copies of the articles of association shall be filed with the Governor, the Secretary of State, and the department.
Each association is a state institution.
Each association by its name has perpetual succession. It may have a seal. An association may sue and be sued, and may do any and all things necessary to carry out the powers and the objects and purposes for which the association is formed.
Claims against an association shall be presented to the Department of General Services in accordance with Part 3 (commencing with Section 900) and Part 4 (commencing with Section 940) of Division 3.6 of Title 1 of the Government Code.
The officers of the association shall consist of a board of directors of nine members. The directors shall be citizens and residents of the district.
A director shall not officially be seated on the board or participate in a board meeting until they have completed any mandatory forms and training, as required by state law and as determined by the department.
A director shall, on a timely basis, complete any form or training that becomes mandatory during their term of office, retake any mandatory training that is required to be repeated periodically, and continue to submit any required forms during their term of office. The relevant form or training shall be completed by the director within 90 days of the form or training requirement or the expiration of the effective period of the form or training. A director shall be subject to removal from the board if they do not comply with these requirements.
If two or more counties constitute a district, each county shall be represented on the board by at least two persons who are citizens and residents of such county.
If, by reason of the formation of a new district, a director in one district becomes a resident of another district, his term of office as director expires 60 days after the formation of the new district.
The directors shall be appointed by the Governor.
The term of office of each director, except that of a member of the first board, is four years from the beginning of the term for which he or she is appointed. Any vacancy shall be filled for the unexpired term. However, any director may be removed for cause by the Governor prior to the expiration of the director’s term.
The term of office of each member of the first board shall be so fixed by the Governor that the terms of the directors of such board shall expire in three groups of two, and one group of three, on the 15th day of January of each year following the formation of the association.
The directors are state officers.
The directors shall meet at a place within the district and organize by the election of one of their number as president. The term of office of the president shall be one year and until his successor is elected.
The directors shall also select a secretary, a manager, and a treasurer from among persons who are not members of the board. One person may be the secretary, the manager, and the treasurer. The secretary, manager, and treasurer are state officers.
Notwithstanding any other law, a board may form any advisory committee by resolution or any similar formal action.
Meetings of an advisory committee shall be open and public and notice thereof shall be delivered personally or by mail at least 24 hours before the time of the meeting to each person who has requested, in writing, notice of the meeting.
If the advisory committee elects to provide for the holding of regular meetings, it shall provide in its bylaws, or by whatever other rule is utilized by the board for the conduct of its business, for the time and place for holding regular meetings. No other notice of regular meetings is required.
“Advisory committee”, as used in this section, means a committee composed solely of the members of the board which is less than a quorum of the board.
The board may, with the approval of the department:
Fix the term of office, the amount of bond and salary, and prescribe the duties of the secretary and of the treasurer.
Manage the affairs of the association.
Make all necessary bylaws, rules, and regulations for the government of the association.
Delegate, as it may deem advisable, to its officers or employees any of the powers that are vested in the board under subdivision (b). Any delegation of power may be revoked at any time.
Notwithstanding Section 3965 or 4051, the board, without prior approval from the department, may arrange for and conduct, or cause to be conducted, or by contract permit to be conducted, any activity by any individual, institution, corporation, or association upon its property at a time as it may be deemed advisable, except for the following:
Revenue-generating contracts involving hazardous activities, as determined by the department, unless adequate insurance coverage is provided, as determined by the department in consultation with the Department of General Services.
This section shall not be construed and is not intended to extend or limit the authority specified in Section 19130 of the Government Code.
The board shall annually make to the department such report as such department may direct.
Any director who misses three consecutive regular meetings of the board without the permission of the board is deemed to have resigned as a director.
Records of the board which are entries in events which are scheduled for future judging and for overnight entries in races on which there is parimutuel wagering prior to such events, judging times, or races, shall not be open to inspection by the public.
CHAPTER 4. Fiscal Provisions [4001. - 4005.]
Any money which is received by any association, other than from the sale of real property or pursuant to a lease, easement, or agreement for the extraction of oil or gas from lands owned or controlled by it, shall be retained and used by the association for its:
General use and purposes.
Maintenance.
Membership in livestock registry associations and fair associations.
Support and operation.
Acquisition, installation, maintenance, and operation of recreational and cultural facilities at its fairgrounds.
The proceeds of the sale of any interest in real property which is owned by any association shall be paid into the Fair and Exposition Fund. The amount which is paid into the fund shall be available for expenditure by the association, with the approval of the department and the State Public Works Board, for any of the following purposes:
Permanent improvements for fair purposes on the property of the association.
Purchase of equipment for fair purposes.
Acquisition or purchase of real property, including costs of appraisal or other incidental costs, to be used as sites for the permanent improvements.
The execution of any lease, easement, or agreement for the extraction of any oil or gas from lands owned or controlled by an association is not a sale of an interest in real property within the meaning of this section.
Any money that is not expended within three years after being paid into the Fair and Exposition Fund pursuant to Section 4002 shall be added to and become a part of the amount available pursuant to Section 3204 for permanent improvements on the property of the state, citrus, county, or district agricultural associations for fair purposes, or the purchase of equipment for fair purposes, or the acquisition or purchase of real property, including costs of appraisal or other incidental costs, to be used as sites for those permanent improvements, in amounts as may be allocated by the secretary.
All revenue which is received by any association pursuant to any lease, easement, or agreement for the extraction of oil or gas from any land that is owned or controlled by it shall be paid into the General Fund.
The fiscal year for each association is from January 1 to December 31.
CHAPTER 5. Powers and Duties Generally [4051. - 4061.]
An association may do any of the following:
Contract, in accordance with all of the following:
The written policies and procedures for contracting that are developed and maintained by the board of directors of the association in accordance with this section.
All applicable state laws governing contracts, except as follows:
A grant or contract entered into by an association for goods is not subject to Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of the Public Contract Code.
A grant or contract entered into by an association is not subject to Chapter 3 (commencing with Section 12100) of Part 2 of Division 2 of the Public Contract Code.
If the estimated total cost of any construction project or similar work carried out under this section exceeds twenty-five thousand dollars ($25,000), the association shall solicit bids in writing and shall award the work to the lowest responsible bidder or reject all bids. The association is subject to all applicable provisions of the Public Contract Code.
An association may elect to become subject to the provisions of the Uniform Public Construction Cost Accounting Act (Chapter 2 (commencing with Section 22000) of Part 3 of Division 2 of the Public Contract Code) and the Small Business Procurement and Contract Act (Chapter 6.5 (commencing with Section 14835) of Part 5.5 of Division 3 of Title 2 of the Government Code), but exempt from the reporting requirements noted in subdivision (f) of Section 14838.1 of the Government Code.
Accept funds or gifts of value from the United States or any person to aid in carrying out the purposes of this part.
Conduct or contract for programs, and contract for the purchase or lease of goods that are necessary to effectuate the purposes of this chapter, either independently or in cooperation with any individual, public or private organization, or federal, state, or local governmental agency.
Establish and maintain a bank checking account or other financial institution account, approved by the Director of Finance in accordance with Sections 16506 and 16605 of the Government Code, for depositing funds received by the association. All funds maintained in an account authorized by this paragraph shall be used in accordance with Section 4001.
Approve the annual budget of the association and establish a program for paying vendors who contract with the association.
Contract with any county or county fair association for holding a fair jointly with the county or county fair association. The joint fair is a district fair of the association.
Make or adopt all necessary orders, rules, or regulations for governing the activities of the association. Notwithstanding paragraph (14), any orders, rules, or regulations adopted by the board are exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. For informational purposes only, however, any order, rule, or regulation adopted by the board may be transmitted to the Office of Administrative Law for filing with the Secretary of State pursuant to Section 11343 of the Government Code.
Operate a payroll system for paying employees, and a system for accounting for vacation and sick leave credits of employees.
Delegate to the officers and employees of the association the exercise of powers vested in the board, as the board may deem desirable, for the orderly management and operation of the association.
With the approval of the Department of General Services, purchase, acquire, hold, sell, or exchange, or convey any interest in real property. Any acquisition of land or other real property is subject to the Property Acquisition Law (Part 11 (commencing with Section 15850) of Division 3 of Title 2 of the Government Code).
With the approval of the Department of General Services, make permanent improvements upon publicly owned real property adjacent to, or near the vicinity of, the real property of the association when the improvements materially benefit the property of the association pursuant to Section 11011 of the Government Code.
With the approval of the Department of General Services, lease for the use of its real property, or any portion of that property, to any person or public body for whatever purpose as may be approved by the board. This purpose may include, but not be limited to, the construction and maintenance of housing affordable to persons and families of low or moderate income, as defined by Section 50093 of the Health and Safety Code, pursuant to a lease of not more than 55 years.
Use, manage, or operate any of its property jointly or in connection with any lessee or sublessee, for any purpose approved by the board.
With the approval of the Department of General Services, pledge any revenues, moneys, accounts, accounts receivable, contract rights, and other rights to payment of whatever kind, pursuant to terms and conditions approved by the board. The revenues, moneys, accounts, accounts receivable, contract rights, and other rights to payment of whatever kind pledged by the association or its assignees constitute a lien or security interest that immediately attaches to the property pledged, and is effective, binding, and enforceable against the association, its successors, purchasers of the property pledged, creditors, and all others asserting rights therein, to the extent set forth, and in accordance with, the terms and conditions of the pledge, irrespective of whether those persons have notice of the pledge and without the need for physical delivery, recordation, filing, or further action.
With the approval of the secretary, enter into a joint powers agreement pursuant to the Joint Exercise of Powers Act (Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code).
In developing the written policies and procedures for contracting, the board shall incorporate the following to apply to contracts or procurement by the association:
To ensure the fullest competition, the board shall adopt and publish competitive bidding procedures for the award of a procurement or contract involving an expenditure of more than one hundred thousand dollars ($100,000). The competitive bidding procedures shall include, but not be limited to, requirements for submission of bids and accompanying documentation, guidelines for the use of requests for proposals, invitations to bid, or other methods of bidding, and a bid protest procedure. The general manager shall determine whether the goods or services subject to this paragraph are available through existing contracts or price schedules of the Department of General Services. The Legislature finds and declares that fairs are a valuable community resource and recognizes that local businesses and local communities make valuable contributions to fairs that include direct and indirect support of fair programs. The Legislature further finds and declares that local businesses often provide opportunity purchases to local fairs that, for similar things available through the state purchasing program, may be purchased locally at a price equivalent to or less than that available through the state purchasing program. As used in this subdivision, opportunity purchases means purchases made locally, either individually or cooperatively, at a price equal to or less than the price available through the state purchasing program on or off state contract.
The contracting standards, procedures, and rules contained in this subdivision shall also apply with respect to any subcontract involving an expenditure of more than one hundred thousand dollars ($100,000). The board shall establish, as part of the bidding procedures for general contracts, subcontracting guidelines that implement this requirement.
With the approval of the Department of General Services, pledge any and all revenues, moneys, accounts, accounts receivable, contract rights, and other rights to payment of whatever kind, pursuant to terms and conditions approved by the board. Any issuance of bonds, contracts entered into, debts incurred, settlements, judgments, or liens under this section or pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code, shall not directly, indirectly, or contingently obligate the state or any political subdivision of the state to levy or to pledge any form of taxation therefor or to make any appropriation for their payment. The bond shall contain on its face a statement to the following effect: “Neither the full faith and credit nor the taxing power of the State of California is pledged to the payment of the principal of, or interest on, this bond.”
This section does not apply to Article 1 (commencing with Section 4101) of Chapter 6 of Part 3.
Notwithstanding any other law, an association shall adopt a fiscal review policy as follows:
An association with an annual budget of less than five million dollars ($5,000,000) shall have its books and accounts examined and reviewed annually and audited once every three years by an independent certified public accountant or certified public accountancy firm selected by the board.
Solely for the 50th District Agricultural Association, which has entered into a joint powers agreement pursuant to the Joint Exercise of Powers Act (Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code) to manage the responsibilities of the association, the joint powers agency shall be the entity responsible for ensuring that the annual examinations and reviews and the audits required by this paragraph are conducted. If the joint powers agency performs separate audits of the association and the joint powers agency, the joint powers agency shall submit both audits to the department in the manner prescribed in this chapter.
Notwithstanding subdivision (c), the department may require an audit to be conducted before the times specified in paragraphs (1) and (2) of subdivision (c) if the department or the state deems the audit is necessary.
Notwithstanding any other provision of law, in accordance with procedures established by the board, the board may enter into agreements to secure donations, memberships, and corporate and individual sponsorships, and may enter into marketing and licensing agreements for the receipt of money, or services or products in lieu of money, and may employ, or create and participate in an entity, or enter into an agreement with an entity or person to develop, solicit, sell, and service these agreements. The compensation for the entity or person shall be established by the board.
Written notification to the department shall be required prior to creating an entity for the activities described in this section and prior to entering into any agreement for activities described in this section if the agreement exceeds one hundred thousand dollars ($100,000) in value, exists for a period of greater than two years, or contemplates the building of a permanent structure on fair property. The department may, upon reasonable notice, examine the books and records of any entity created pursuant to this section.
An association shall not enter into a settlement agreement for an amount greater than one hundred thousand dollars ($100,000) without the prior approval of the department.
An association shall not lease its racetrack for running races of horses to any private person, firm, or corporation, except to a national or international exposition or its affiliated corporations or associations for the period of time which is now permitted by law for fairs.
If the board of an association, by resolution adopted by vote of two-thirds of all its members, finds and determines that the public interest and necessity require the acquisition of any building or improvement that is situated on property that is owned by the association, in trust or otherwise, or of any outstanding rights to that property, with the approval of the department and the association, the building, improvement, or outstanding rights may be acquired by eminent domain pursuant to the Property Acquisition Law (Part 11 (commencing with Section 15850) of Division 3 of Title 2 of the Government Code).
The use by the association of its property shall be considered a more necessary public use than the use of the property by any grantee, lessee, or licensee for the purposes that are specified in Section 4051.
Notwithstanding Article 5 (commencing with Section 25450) of Chapter 5 of Division 2 of Title 3 of the Government Code, or Sections 10108 and 10308 of the Public Contract Code, the board of an association or governing board of a county fair, by resolution adopted by vote of two-thirds of all its members, may purchase materials and lease equipment for not in excess of twenty thousand dollars ($20,000) when the purchase or lease is made in conjunction with donated labor construction improvements on the grounds of the association or the county fairgrounds, respectively.
Associations, by majority vote of their respective boards, may cooperate in the holding of a fair in any of the districts.
An association may pay membership fees, and join and participate in the affairs of any organization which has the following purposes:
Interchange of information that relates to livestock, poultry, and other agricultural animals and products.
Conduct and management of fairs.
Conducting of horseracing meetings.
An association may also pay membership fees, join and participate in affairs of any similar organization that deals with subjects that are related to powers and duties of the association.
The state is not liable for any action, obligation, commitment, contract, or premium that is offered, or award that is made, by any association.
Notwithstanding Section 4052, the California Exposition and State Fair, a district agricultural association fair, or county fair in the northern zone, with the approval of the Department of Food and Agriculture, may form an entity for conducting combined fair horseracing meetings and utilize their racing facilities for conducting horseracing meetings, with parimutuel wagering, on days other than the days on which general fair activities are conducted. A combined fair horseracing meeting pursuant to this section shall be a general fair activity for the purpose of Section 19549 of the Business and Professions Code.
The association shall encourage the racing of emerging breeds of horses.
Notwithstanding any other provision of law, the Department of Food and Agriculture shall develop criteria to be used, subject to the approval of the Department of General Services, for the disposal of property by a district agricultural association and the California Exposition and State Fair.
As used in this section, “disposal of property” means the sale of equipment, materials or other forms of personal property no longer necessary to effectuate the purposes of the fair and that do not exceed an estimated fair market value of fifty thousand dollars ($50,000).
The board of the district agricultural association or California Exposition and State Fair shall, prior to the disposal of property, as defined in this section, first be required to determine, through the Department of Food and Agriculture, if the property can be used by another fair in the California Fair Network or other state agency or department. If determined that such use is not possible, the board of the district agricultural association or California Exposition and State Fair shall sell the property to the buyer that submits the highest bid.
The regular department audit of district agricultural associations shall confirm the source of funds of any disposed property and compliance with the criteria developed under this section for the disposal of property.
The adoption of the criteria developed pursuant to this section shall relieve a district agricultural association and the California Exposition and State Fair of any requirements to abide by the provisions of the State Administrative Manual which may apply to disposal of property developed by the Department of General Services.
Any compensation to any officer or employee of the state by any nonprofit corporation formed exclusively to aid and assist an association, as provided for in Section 18000.5 of the Government Code, shall be approved by the department before payment. The nonprofit corporation shall notify the department of the compensation.
The department shall, during regular audits, review the payments from the nonprofit corporation to any state employees and those state employees’ responsibilities to the nonprofit corporation. The financial information from the nonprofit corporation shall be made available to the department for the audit. Any compensation shall be justified by related work that is not the normal responsibility of the state officer or employee through employment by an association, including normal duties and working hours. The audit shall also determine if any board member serving on an association is also serving on the board of directors of the related nonprofit corporation and determine if there are any conflicts of interest regarding the payment to the association employees. The audit shall also determine if any officer or employee is receiving compensation from the nonprofit corporation in violation of subdivision (c).
Pursuant to Section 1090 of the Government Code, a state officer or employee of an association shall not be compensated by the nonprofit corporation when that state officer or employee acts in an official capacity regarding any contract made with the nonprofit corporation.
Notwithstanding any other law, a district agricultural association shall not be required to prepare or submit any written report to the Governor, the Legislature, or a state agency except as follows:
The report is required by a court or under federal law.
The report is required in the Budget Act.
The report is required by the secretary.
The Legislature expressly requires a district agricultural association to prepare and submit a report.
The annual reporting of real property information required pursuant to Section 11011.15 of the Government Code.
This section shall not be construed and is not intended to extend or limit the provisions of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
CHAPTER 6. Provisions Regarding Particular Associations [4101. - 4202.]
ARTICLE 1. California Science Center [4101. - 4109.]
The Sixth District Agricultural Association shall also be known as Exposition Park. It is in the Natural Resources Agency and is deemed to be a tax-exempt organization as an instrumentality of this state in accordance with Section 23706 of the Revenue and Taxation Code.
All of the following shall apply to Exposition Park:
The Board of Directors of the Sixth District Agricultural Association shall be the Board of Directors for Exposition Park and for the California Science Center, except with respect to those matters delegated to the Exposition Park Manager pursuant to Section 4108 or the Board of Directors of the California African American Museum pursuant to Section 4104.
Property or other interests presently held in title by the Sixth District Agricultural Association, also known as the California Science Center, except as detailed in paragraph (3), shall vest in Exposition Park on behalf of the State of California.
Upon the effective date of the change in name referred to in subdivision (a), there shall be deemed located within Exposition Park an entity referred to as the California Science Center, which shall include the Samuel Oschin Space Shuttle Endeavour Display Pavilion; the 3D IMAX Theater; the Dr. Theodore T. Alexander, Jr. Science Center School; the Wallis Annenberg Building; Phase I and Phase II of the California Science Center; and any additional construction developed pursuant to Phase III of the Master Plan developed and approved for Exposition Park, including any development authorized pursuant to Sections 4103 and 4103.5. The California Science Center shall manage, lease, and dispose of the property identified in this paragraph consistent with existing state law, in coordination with the Exposition Park Manager, and with approval of the Exposition Park Board, and all contracts or other agreements for this property that identify the California Science Center as the contracting party.
Notwithstanding Section 3964, the Exposition Park Manager appointed pursuant to Section 4108 shall be considered the executive director and manager of the board of directors of Exposition Park, except that the executive director of the California Science Center shall be considered the executive director and manager of the board of directors for matters within the sole jurisdiction of the California Science Center.
Consistent with Section 4060, and all other applicable state law, a state officer or employee of the Sixth District Agricultural Association, including any officer or employee of any state entity located in Exposition Park, shall not accept any compensation from any nonprofit organization for work performed in part or in full without prior written approval from the Secretary of the Natural Resources Agency.
Notwithstanding any other law, the California Science Center, with the approval of the Director of General Services and the Secretary of the Natural Resources Agency, may enter into a long-term lease agreement, not to exceed 40 years, with terms and conditions determined by the Director of General Services to be in the best interest of the state, with the Los Angeles Unified School District to convert the Armory, also known as the Wallis Annenberg Building, and surrounding land in or near Exposition Park to a demonstration mathematics and science-based school.
For the purposes of carrying out subdivision (a), all of the following requirements apply:
Plans shall be developed by the Los Angeles Unified School District for the conversion described in subdivision (a).
The Los Angeles Unified School District shall demonstrate to the Director of General Services that it has sufficient funds, from sources other than the California Science Center, to complete the conversion.
The Los Angeles Unified School District shall give attention to the historical preservation of the Armory, also known as the Wallis Annenberg Building, in developing plans and completing the conversion.
All lease documents necessary to complete the conversion shall be approved by the Director of General Services before their execution.
Notwithstanding any other law, the California Science Center is hereby authorized to enter into a site lease with the California Science Center Foundation, a California Nonprofit Corporation, with the approval of the Natural Resources Agency, the Department of Finance, and the Department of General Services, for the purpose of the foundation developing, constructing, equipping, furnishing, and funding the project known as Phase II of the California Science Center. The overall construction cost and scope shall be consistent with the amount authorized in the Budget Act of 2002, provided that this section shall not prevent the foundation from expending additional nonstate funds to complete Phase II provided that the additional expenditures do not result in additional state operation and maintenance costs. Any additional expenditure of nonstate funds by the foundation shall not increase the state’s contribution.
For the purpose of carrying out subdivision (a), all of the following apply:
In connection with the development described in subdivision (a), above, the foundation may, in its determination, select the most qualified construction manager/general contractor to oversee and manage the work and prepare the competitive bid packages for all major subcontractors to be engaged in the construction of the Phase II Project. Any construction manager/general contractor selected shall be required to have a California general contractor’s license.
Before commencement of construction of the Phase II Project, the California Science Center shall enter into a lease-purchase agreement upon approval by the Department of Finance with the foundation on terms that are compatible with the Phase I Project financing. The term of the lease-purchase agreement shall be a term not to exceed 25 years. Lease payments on behalf of the state shall be commensurate with the twenty-two million nine hundred forty-five thousand two hundred sixty-three dollars ($22,945,263), (nineteen million one hundred thirty-seven thousand dollars ($19,137,000) plus 19.9 percent augmentation authority) construction cost allocation of the state. Lease payments may also include any cost of financing that the foundation may incur related to tax-exempt financing. The California Science Center shall be authorized to direct the Controller to send the rental payments under the lease-purchase agreement directly to the foundation’s bond trustee.
The foundation shall ensure that the Phase II Project is inspected during construction by the state in the manner consistent with state infrastructure projects. The foundation shall also indemnify and defend and save harmless the Department of General Services for any and all claims and losses accruing and resulting from or arising out of the foundation’s use of the state’s plans and specifications. The foundation and the California Science Center, upon consultation with the Director of General Services and the Department of Finance, shall agree on a reasonable level of state oversight throughout the construction of the Phase II Project in order to assist the foundation in the completion of the project within the intended scope and cost.
At the end of the term of the site lease and the lease-purchase agreement unencumbered title to the land and improvements shall return to the state with jurisdiction held by Exposition Park and the facilities managed by the California Science Center on behalf of Exposition Park.
The Legislature finds and declares that the operation of the California Science Center may require individual skills not generally available in state civil service to support specialized functions, such as exhibit maintenance, and educational and guest services programs, including animal care and horticulture.
Notwithstanding any other law, the California Science Center may enter into a personal services contract or contracts with the California Science Center Foundation without a competitive bidding process. These contracts shall be subject to approval by the Natural Resources Agency and the Department of General Services and be subject to all state audit requirements.
Notwithstanding any other law, for any fiscal year, the Director of Finance may allocate moneys to the California Science Center to mitigate the impact of future state minimum wage increases on contracts authorized pursuant to subdivision (b).
Allocations made pursuant to subdivision (c) shall occur no sooner than 30 days, or no sooner than a lesser time as determined by the Chairperson of the Joint Legislative Budget Committee or their designee, after notification is provided in writing to all of the following:
The chairpersons of the committees in each house of the Legislature that consider appropriations.
The chairpersons of the committees and appropriate subcommittees that consider the state budget.
The Chairperson of the Joint Legislative Budget Committee.
The notification shall include the amount of the proposed allocation and an explanation of the rationale for the proposed amount.
Exposition Park, with the approval of the Natural Resources Agency, may build, construct, and maintain and operate a stadium or any arena, pavilion, or other building that is to be used for the holding of sports events, athletic contests, contests of skill, exhibitions, spectacles, and other public meetings. It may lease, let, or grant licenses for the use of that stadium, arena, pavilion, or other building, with the approval of the Natural Resources Agency.
The California Science Center, in consultation with the Exposition Park Manager, may establish an air and space center in its building at Exposition Park in the City of Los Angeles.
The California Science Center may enter into one or more agreements or leases with the California Science Center Foundation, a California nonprofit public benefit corporation, with the approval of the Natural Resources Agency, the Department of Finance, and the Department of General Services, for the purpose of developing, designing, constructing, equipping, furnishing, operating, and funding the project known as the Phase III Project of the California Science Center, which is located adjacent to or contiguous with the existing Phase I Project and Phase II Project of the California Science Center in Exposition Park. Those agreements and leases shall include a site lease of the land on which the Phase III Facilities are to be constructed with the California Science Center Foundation for a nominal payment, and a lease-purchase agreement pursuant to which the California Science Center shall lease and acquire the Phase III Facilities from the California Science Center Foundation. The site lease and the lease-purchase agreement shall be for a term ending 30 years after the later of October 1, 2022, or the date on which the Phase III Facilities are certified available for use and occupancy. The lease payments on behalf of the state shall be two million four hundred thirty thousand dollars ($2,430,000) per year for the term of the lease-purchase agreement, commencing on the later of October 1, 2022, or the date on which Phase III Facilities are certified available for use and occupancy.
Before entering into any agreement or lease with the California Science Center Foundation relating to the Phase III Project, the California Science Center shall have approval for the Phase III Project from the Natural Resources Agency and the Department of Finance.
All agreements or leases entered into between the California Science Center and the California Science Center Foundation relating to the Phase III Project shall be on terms compatible with the financing arrangements that exist on the Phase I Project and Phase II Project. The entire design and construction cost of the Phase III Project shall be the sole responsibility of the California Science Center Foundation. Except for the lease payments contemplated in paragraph (1), any agreement or lease entered into between the California Science Center and the California Science Center Foundation relating to the Phase III Project shall not contain terms, either directly or indirectly, that obligate the California Science Center, Exposition Park, or the state to pay or repay any debt issuance or other financing that may be associated with the Phase III Project.
Except for the site lease and the lease-purchase agreement described in paragraph (1), the agreements or leases entered into between the California Science Center and the California Science Center Foundation relating to the Phase III Project may have a term of up to 50 years. The California Science Center Foundation shall agree not to enter into any third-party donation, grant, or funding arrangement that limits or restricts the use or purpose of the Phase III Project beyond the agreement or lease duration as authorized in this section.
All agreements or leases entered into between the California Science Center and the California Science Center Foundation relating to the Phase III Project shall contain a provision that the California Science Center Foundation agrees to indemnify, defend, and save harmless the state from any and all claims and losses arising out of the design and construction of the Phase III Project to the same extent the state is customarily indemnified by its architects, engineers, and contractors in connection with state infrastructure projects of similar type and scope.
The scope of the Phase III Project shall be consistent with the Exposition Park Master Plan and may include the demolition of existing administration buildings and other ancillary state facilities. The Phase III Project shall be developed in a manner that is consistent with the state’s climate change goals and the Green Building Action Plan, and complies with the requirements of Executive Order No. B-18-12, including, but not limited to, meeting the LEED Silver and other requirements for new or major renovated state buildings. The scope of the Phase III Project shall be consistent with the plans and specifications as approved by the Office of the State Fire Marshal and the Division of the State Architect in November 2016.
For the purpose of carrying out subdivision (a), all of the following shall apply:
All contracts in connection with the design, construction, and installation of the Phase III Project shall be contracts entered into by the California Science Center Foundation, and notwithstanding any other law, shall not be subject to state procurement law or law pertaining to state contracts.
The California Science Center Foundation shall, and shall cause its contractors to, coordinate construction activity associated with the Phase III Facilities with the Exposition Park Manager and shall ensure the construction activity is carried out in a manner that complies with all existing leases and other commitments of the state with respect to Exposition Park and limits the impact on the tenants in and visitors to Exposition Park. Significant aspects of construction activity such as staging, parking, and security shall be subject to the prior review and approval of the Exposition Park Manager. Any agreements or leases between the California Science Center and the California Science Center Foundation relating to the Phase III Project shall obligate the California Science Center Foundation to reimburse the state for any lost revenue of the state while the Phase III Project is under construction to the extent resulting from the lost use of any area of Exposition Park other than the area approved to be occupied by the Phase III Facilities pursuant to the schematic design approved by the board of directors of the California Science Center on July 23, 2014, as may be revised from time to time by agreement between the parties thereto and with the approval of the Natural Resources Agency and the Department of Finance. Before the commencement of any construction of the Phase III Facilities, including, but not limited to, any related demolition of existing structures, the California Science Center Foundation and the Exposition Park Manager shall meet and confer in order to develop a construction schedule that shall not interfere with any previously scheduled events on the Exposition Park property. After the development of that construction schedule, the Exposition Park Manager shall coordinate any future event scheduling that could affect the construction of the Phase III Facilities with the California Science Center Foundation and its construction schedule. Any agreements or leases between the California Science Center and the California Science Center Foundation relating to the Phase III Project shall obligate the California Science Center Foundation to coordinate its construction schedule with the Exposition Park Manager with respect to special events planned on Exposition Park property. Any agreements or leases between the California Science Center and the California Science Center Foundation relating to the Phase III Project shall also obligate the California Science Center Foundation to indemnify, defend, and save harmless the state from any and all claims and losses resulting from any failure of the California Science Center Foundation to adhere to its construction schedule, as that schedule may be revised from time to time in consultation with the Exposition Park Manager, or to coordinate its construction schedule with the Exposition Park Manager with respect to special events planned on Exposition Park property, except, in each case, to the extent resulting from the failure of the Exposition Park Manager to coordinate any events planned in Exposition Park that could affect the construction with the California Science Center Foundation and its construction schedule.
The California Science Center Foundation shall ensure the Phase III Facilities are inspected during construction by the state in a manner consistent with state infrastructure projects. Before commencement of construction, the California Science Center Foundation and the California Science Center, upon consultation with the Department of General Services, the Natural Resources Agency, and the Department of Finance, shall agree on a reasonable level of state oversight throughout the construction of the Phase III Facilities to ensure the approved project scope is maintained, that initial estimates regarding long-term operation and maintenance obligations remain accurate, and that all project requirements are met.
Any agreements or leases between the California Science Center and the California Science Center Foundation relating to the Phase III Project shall provide that, upon completion and certification that the Phase III Facilities are available for use and occupancy, the ownership and operation of the Phase III Facilities shall be under the control of the California Science Center with respect to the building and any museum-related structures and Exposition Park with respect to the other structures and the adjacent plazas and landscaping, provided that, during the term of the site lease and the lease-purchase agreement, title to the Phase III Facilities operated by the California Science Center shall be held by the California Science Center Foundation, and at the end of the term of the site lease and the lease-purchase agreement, unencumbered title to the Phase III Facilities shall transfer to the state with jurisdiction held by the California Science Center in accordance with the lease-purchase agreement.
Notwithstanding any other law, including, but not limited to, Section 11007 of the Government Code, the California Science Center may consult with the Department of General Services for the procurement of property insurance, including fire, lightning, and extended coverage insurance, on the Phase III Facilities, subject to reasonable deductibles, provided the insurance is available on the open market from reputable insurance companies at a reasonable cost.
For purposes of this section, the following terms have the following meanings:
The Legislature hereby finds and declares that there is a need for a state repository dedicated to the diverse contributions of African Americans to the history and culture of this state and the nation.
The California African American Museum is a part of Exposition Park and coexists with the California Science Center.
The California African American Museum is governed by a seven-member board of directors. The Governor shall appoint the seven members, at least four of whom shall reside within the boundaries of the 6th Agricultural District. In addition, the Senator representing the Senate district in which the California African American Museum is located and the Assembly Member representing the Assembly district in which the museum is located shall be ex officio nonvoting members of the board. The two legislative ex officio nonvoting members of the board shall participate in the activities of the board to the extent that their participation is not incompatible with their respective positions as Members of the Legislature. The appointees of the Governor shall be appointed to four-year terms with the initial terms of appointment expiring as follows: one term expiring January 1, 1984, one term expiring January 1, 1985, one term expiring January 1, 1986, and one term expiring January 1, 1987. The person appointed to the Advisory Board of the California Museum of African American History and Culture by the Board of Directors of the California Science Center before the amendments made to this section by Chapter 1439 of the Statutes of 1987 shall serve on the Board of Directors of the California African American Museum until the Governor makes the fifth appointment authorized pursuant to those amendments. The fifth appointment made to the board shall serve a term expiring on January 1, 1990, the sixth appointment shall serve a term expiring on January 1, 1991, and the seventh appointment shall serve a term expiring on January 1, 1992.
The Board of Directors of the California African American Museum shall have the authority, subject to existing state laws, regulations, and procedures, to determine how funds that have been appropriated and duly allocated by the Legislature and the Governor for support of the museum shall be expended. The board also shall have the authority, subject to existing state laws, regulations, and procedures, to contract with any state agency, institution, independent contractor, or private nonprofit organization that the board determines to be appropriate and qualified to assist in the operation of the museum. The board shall further have authority to establish the operations, programs, activities, and exhibitions of the California African American Museum. The Board of Directors of the California African American Museum shall be solely responsible for the actions taken and the expenditures made by the staff of the California African American Museum in the scope and course of their employment.
The Board of Directors of the California African American Museum shall appoint an executive director, who shall be exempt from civil service, and any necessary staff to carry out the provisions of this section, who shall be subject to the State Civil Service Act (Part 2 (commencing with Section 18500) of Division 5 of Title 2 of the Government Code). The California African American Museum shall submit its annual budget request directly to the Natural Resources Agency. The California African American Museum may accept grants, contributions, and appropriations from federal, state, local, and private sources for its operation.
The California African American Museum shall preserve, collect, and display samples of African American contributions to the arts, sciences, religion, education, literature, entertainment, politics, sports, and history of the state and the nation. The enrichment and historical perspective of that collection shall be made available for public use and enjoyment.
The California African American Museum shall use stationery and other supplies of the former museum and shall phase in the name change with existing resources.
The board may enter into concession contracts to license or sell, or both, its branded merchandise, images, and other museum-related merchandise directly to the public for revenue generation. Concession contracts, other than those entered into pursuant to Section 4105.5, shall be issued through competitive requests for proposals, and shall seek the best value for the state through a mixture of rental rates or revenue shares, or both. A concession contract executed pursuant to this section shall not exceed five years in length, with one automatic right to renew at new terms, which shall be mutually agreeable to the board and the concessionaire, including any necessary adjustments in rental rates or revenue shares. The board shall require a provision that allows termination at any time with 180 days prior notice.
The board may license or sell, or both, its branded merchandise, images, and other museum-related merchandise directly to the public at the board’s discretion.
In addition to onsite concessions, the board may enter into merchandise agreements with individuals, public agencies, qualified nonprofit organizations, and other private entities for sale of museum-branded merchandise, images, or other museum-related merchandise to the public. The California African American Museum shall receive fair and reasonable revenues and commissions from any merchandise agreement. These merchandise agreements shall be approved by the Natural Resources Agency and the Department of General Services and shall be subject to all state audit requirements.
All rents, revenues, and commissions received by the California African American Museum as a result of this section shall be paid into a designated account within the Exposition Park Improvement Fund, established pursuant to Section 4106.
For purposes of this section, “board” means the Board of Directors of the California African American Museum.
This section shall become inoperative on July 1, 2030, and, as of January 1, 2031, is repealed.
Notwithstanding any other law, from December 14 to December 21, inclusive, of any year, a state entity shall not charge parking fees for the parking facilities surrounding the Los Angeles Memorial Coliseum when an event is being held at the facilities of the museum by a private nonprofit charitable organization for the purpose of collection and distribution of toys and food.
For purposes of this section, the following terms apply:
“Board” means the Board of Directors of the California African American Museum.
“Foundation” means the California African American Museum Foundation.
“Museum” means the California African American Museum.
The Legislature finds and declares that the operation of the museum may require individual skills not generally available in state civil service to support specialized functions, such as special exhibit development and maintenance, indemnity protection, and educational and guest services programs.
Notwithstanding any other law, the executive director of the museum may, with the approval of the Secretary of the Natural Resources Agency, work to establish a nongovernmental trust, to be known as the California African American Museum Foundation.
The purposes of the foundation shall be all of the following:
To seek funds for the museum to expand its public programming.
To jointly manage a gift store or museum store onsite, the proceeds of which will be used to fund further programming at the museum as determined by the board.
To jointly manage public events that promote the mission of the museum.
To encourage the development of youth-based programming, particularly internship and arts-based programming that help develop employment skills in the local and regional community, with an emphasis on disadvantaged communities in or around the museum.
The foundation shall be subject to the Nonprofit Public Benefit Corporation Law (Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code). To the extent of any conflict between this section and the Nonprofit Public Benefit Corporation Law, this section shall prevail.
For purposes of developing the foundation, the executive director of the museum may use state funds, upon appropriation by the Legislature, to contract with any private or nonprofit law firm to help establish the foundation and provide it with general counsel for not more than one year from the date of its inception. The museum shall in no way be legally responsible for any action or decision made by the foundation.
Notwithstanding any other law, the museum may develop and enter into no-bid personal services contracts, joint management agreements, lease agreements, and other contracts with the foundation subject to approval by the Natural Resources Agency and the Department of General Services and subject to all state audit requirements.
Notwithstanding any other law, and in accordance with written procedures established by the board, the museum may enter into agreements to secure donations, memberships, and corporate and individual sponsorships, and may enter into marketing and licensing agreements for the receipt of money, or services or products in lieu of money, and may enter into an agreement with the foundation or others to develop, solicit, sell, and service these agreements. Any fees charged, or revenues shared with the foundation or other contractors, pursuant to these agreements shall be subject to approval by the Natural Resources Agency and the Department of General Services and subject to all state audit requirements. The museum shall limit the foundation to reasonable administration fees, which fees shall cover both direct, indirect, and overhead expenses of the foundation. All revenue generated and received by the foundation pursuant to this section shall be used for the benefit of the museum, except for those reasonable administration costs incurred by the foundation in managing those funds.
Notwithstanding any other law, and in accordance with written procedures established by the board, the museum may authorize the foundation to represent it for the purpose of receiving donations on its behalf both onsite, and through the use of copyrighted marketing material. If the museum provides authorization for the foundation to represent it, as described in this section, the board may require the foundation to report quarterly on revenues received and expended. All revenues generated and received by the foundation shall be used for the benefit of the museum, except those reasonable administration costs incurred by the foundation in managing those funds, which administration costs shall be determined by mutual donation agreement before the acceptance of any donations or use of any marks owned by the museum. The mutual donation agreement shall be subject to approval by the Natural Resources Agency and the Department of General Services and be subject to all state audit requirements.
Consistent with any mutual donation agreement authorized in subdivision (i), the board may further authorize the foundation to use the museum for special events. The foundation shall either charge a fee for the special events or accept minimum donations in lieu of fees, which moneys shall be subject to the mutual donation agreement. All fees and donations received by the foundation for special events shall be itemized and accounted for to the board at its next regularly scheduled meeting. For all foundation managed events, the foundation shall obtain necessary insurance, and comply with all appropriate public safety and janitorial services, and shall provide its own staff or contractors to develop and manage the special event. All special events shall be preapproved by the executive director of the board, in consultation with the Natural Resources Agency.
The executive director of the board, on behalf of the board, shall annually report on the status of all foundation activities to the Department of Finance regarding the various agreements and revenues identified in this section. The Department of Finance may, upon reasonable notice, examine the books and records of the foundation, and all parties in contract with the museum.
On or before January 10, 2024, and annually thereafter, the Department of Finance, in coordination with the foundation, shall submit a report to the chairpersons of the committees in each house of the Legislature that consider appropriations, the chairpersons of the committees and appropriate subcommittees that consider the State Budget, the Chairperson of the Joint Legislative Budget Committee, and the Legislative Analyst’s Office. The report shall include, but not be limited to, all of the following:
An update on foundation activities undertaken pursuant to the authorities granted in this section.
Details on all joint management agreements, lease agreements, and any contracts executed between the State of California and the foundation.
Revenues and expenditures associated with foundation activities at the museum.
A summary of agreements entered into pursuant to subdivisions (a), (b), and (c) of Section 4104.5 that is expected to involve a total investment or estimated annual gross sales in excess of one million dollars ($1,000,000).
This section shall become inoperative on July 1, 2030, and, as of January 1, 2031, is repealed.
Exposition Park shall work with the Los Angeles Memorial Coliseum Commission, the City of Los Angeles, and the County of Los Angeles to develop additional parking facilities in Exposition Park to the extent necessary to allow for expansion of the park.
Exposition Park shall manage or operate its parking facilities in a manner that preserves and protects the interests of the California Science Center and the California African American Museum and recognizes the cultural and educational character of Exposition Park.
The Exposition Park Improvement Fund is hereby created in the State Treasury. All revenues received by Exposition Park from its parking facilities, from rental of state facilities, or from other business activities shall be deposited in the Exposition Park Improvement Fund.
The moneys in the Exposition Park Improvement Fund may only be used, upon appropriation by the Legislature, for improvements to Exposition Park, including, but not limited to, maintenance of existing state facilities, replacement of state equipment, supplies and wages expended to generate revenues from rental of state facilities, development of new parking facilities, and acquisition of land within or adjacent to Exposition Park.
The Legislature hereby finds and declares that there is a need for development of additional park, recreation, museum, and parking facilities in Exposition Park. The Legislature recognizes that the provision of these needed improvements as identified in the Exposition Park Master Plan may require the use of funds provided by other governmental agencies or private donors.
Exposition Park may accept funds from other governmental agencies or private contributions for the purpose of implementation of the Exposition Park Master Plan. The private contributions and funds from governmental agencies other than state governmental agencies shall be deposited in the Exposition Park Improvement Fund in the State Treasury and shall be available for expenditure without regard to fiscal years by Exposition Park for implementation of the Exposition Park Master Plan. Funds from other state governmental agencies shall be deposited in the Exposition Park Improvement Fund and shall be available for expenditure, upon appropriation, by Exposition Park for implementation of the Exposition Park Master Plan. However, any expenditure is not authorized sooner than 30 days after notification in writing of the necessity therefor to the chairperson of the committee in each house of the Legislature that considers appropriations and the Chairperson of the Joint Legislative Budget Committee, or not sooner than whatever lesser time as the chairperson of the joint committee, or his or her designee, may in each instance determine. Neither the City of Los Angeles nor the County of Los Angeles shall impose any tax upon tickets purchased authorizing the use of parking facilities owned by Exposition Park.
Notwithstanding any other provision of law, a Member of the Legislature representing any district in Los Angeles County may be appointed as a director of the California Science Center.
There shall be established in Exposition Park the position of Exposition Park Manager to be filled by a person appointed by the Governor for the purpose of managing, scheduling, and administering all park-related events, including, but not limited to, oversight for the police and security services of the park.
The Exposition Park Manager may appoint the chief, assistant chief, and all security and safety officers of museum security and safety who shall have the powers of peace officers as specified in Section 830.3 of the Penal Code.
The officers appointed pursuant to subdivision (a) shall have completed the regular basic training course prescribed by the Commission on Peace Officer Standards and Training. The officers shall provide police and security services to keep order and to preserve the peace and safety of persons and property at all facilities in Exposition Park on a year-round basis, in coordination with the direction or information provided by the Exposition Park Manager.
The Exposition Park Manager, in consultation with the Natural Resources Agency and the Department of General Services, shall approve the leasing, construction, or alteration of existing facilities within Exposition Park. The executive director of the California Science Center and the executive director of the California African American Museum, in consultation with the Natural Resources Agency and the Department of General Services, shall approve the leasing, construction, or alteration of their respective museum facilities. All actions taken pursuant to this subdivision shall only occur upon approval or delegation of authority by the respective board of directors.
For purposes of this section, the following terms have the following meanings:
“Agency” means the Natural Resources Agency.
“Department” means the Department of General Services.
“Exposition Park” means the Sixth District Agricultural Association, and shall also be known as the Office of Exposition Park Management.
“Nonprofit organization” means a recognized nonprofit organization that is tax exempt pursuant to Section 501(c)(3) of the Internal Revenue Code, and that represents victims and survivors of the Holocaust.
Consistent with funding and authority provided in the annual budget act, the agency may enter into a noncompetitive grant with a nonprofit organization, subject to the requirements of this section.
The nonprofit organization, in consultation with the agency and department, may plan, construct, and maintain a memorial to the victims and survivors of the Holocaust at Exposition Park in accordance with this section. The memorial shall be consistent with the operating policies and procedures of the Office of Exposition Park Management, including the location of the memorial.
The department, in consultation with the nonprofit organization and the agency, shall do all of the following:
Review the preliminary design plans to identify potential maintenance concerns.
Review and approve any documents prepared pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
Review final construction documents to ensure that the documents comply with all applicable laws.
Inspect all construction performed by the contractor selected by the nonprofit organization pursuant to this section.
The nonprofit organization, in consultation with the Office of Exposition Park Management and with the approval of the agency and department, shall do both of the following:
Prepare the right-of-entry permit outlining the final area of work, final construction documents, construction plans, the contractor hired to perform the work, insurance, bonding, provisions for damage to state property, and inspection requirements.
Prepare an agreement for the long-term maintenance and security of the memorial.
This section shall be implemented only upon appropriation by the Legislature for its purposes in the Budget Act or other statute.
For purposes of this section, the following terms apply:
“Foundation” means the Exposition Park Foundation.
“Office” means the office of the Exposition Park Manager, as described in Section 4108.
Notwithstanding any other law, the office may, with the approval of the Secretary of the Natural Resources Agency, work to establish a nongovernmental trust, known as the Exposition Park Foundation.
The purpose of the foundation shall be all of the following:
To seek funds for Exposition Park to expand its public programming and infrastructure developments and improvements.
To jointly manage public events that promote the mission of Exposition Park.
To lease portions of state property consistent with the state processes and approvals, and to develop, construct, equip, furnish, and fund the Exposition Park Master Plan or other initiatives of Exposition Park on those properties consistent with lease terms.
For purposes of subdivision (c), in connection with the development described in subdivision (c) of Section 4108, the foundation may, in its determination, select the most qualified construction manager or general contractor to oversee and manage the work and prepare the competitive bid packages for all major subcontractors to be engaged in the implementation and development of the Exposition Park Master Plan. Any construction manager or general contractor selected shall be required to have a California general contractor’s license.
The foundation shall be subject to the Nonprofit Public Benefit Corporation Law (Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code). To the extent of any conflict between this section and the Nonprofit Public Benefit Corporation Law, this section shall prevail.
For purposes of developing the foundation, the office may use state funds, upon appropriation by the Legislature, to contract with any private or nonprofit law firm to help establish the foundation and provide it with general counsel for not more than one year from the date of its inception. The office shall in no way be legally responsible for any action or decision made by the foundation.
Notwithstanding any other law, the office may develop and enter into no-bid personal services contracts, joint management agreements, lease agreements, and other contracts or grants, as appropriations and funding permits, with the foundation subject to approval by the Natural Resources Agency and the Department of General Services and subject to all state audit requirements.
Notwithstanding any other law, the office may enter into agreements to secure donations, memberships, and corporate and individual sponsorships, and may enter into marketing and licensing agreements for the receipt of money, or services or products in lieu of money, and may enter into an agreement with the foundation or others to develop, solicit, sell, and service these agreements. Any fees charged, or revenues shared with the foundation or other contractors, pursuant to these agreements shall be subject to approval by the Natural Resources Agency and the Department of General Services and subject to all state audit requirements. The office shall limit the foundation to reasonable administration fees, which fees shall cover both direct, indirect, and overhead expenses of the foundation. All revenue generated and received by the foundation pursuant to this section shall be used for the benefit of Exposition Park, except for those reasonable administration costs incurred by the foundation in managing those funds.
Notwithstanding any other law, the office may authorize the foundation to represent it for the purpose of receiving donations on its behalf both onsite, and through the use of copyrighted marketing material. If the office provides authorization for the foundation to represent it, as described in this section, the office may require the foundation to report quarterly on revenues received and expended. All revenues generated and received by the foundation shall be used for the benefit of Exposition Park and associated programming efforts, except those reasonable administration costs incurred by the foundation in managing those funds, which administration costs shall be determined by mutual donation agreement before the acceptance of any donations or use of any marks owned by the office. The mutual donation agreement shall be subject to approval by the Natural Resources Agency and the Department of General Services and subject to all state audit requirements.
Consistent with any mutual donation agreement authorized in subdivision (i), the office may further authorize the foundation to use Exposition Park for special events. The foundation shall either charge a fee for the special events or accept minimum donations in lieu of fees, which moneys shall be subject to the mutual donation agreement. All fees and donations received by the foundation for special events shall be itemized and accounted for to the office regularly. For all foundation managed special events, the foundation shall obtain necessary insurance, and comply with all appropriate public safety and janitorial services, and shall provide its own staff or contractors to develop and manage the special event. All special events shall be preapproved by the Exposition Park Manager, in consultation with the Natural Resources Agency.
The Exposition Park Manager, on behalf of the office, shall annually report on the status of all foundation activities to the Department of Finance regarding the various agreements and revenues identified in this section. The Department of Finance may, upon reasonable notice, examine the books and records of the foundation, and all parties in contract with the office.
The Legislature finds and declares that the operation of Exposition Park may require individual skills not generally available in state civil service to support specialized functions, such as special event development and programming, and educational and guest services programs.
Notwithstanding any other law, Exposition Park may enter into a personal services contract or contracts with the foundation without a competitive bidding process. These contracts shall be subject to approval by the Natural Resources Agency and the Department of General Services and be subject to all state audit requirements.
The office may enter into concession contracts to license or sell, or both, its branded merchandise, images, and other park-related merchandise directly to the public for revenue generation. Concession contracts, other than those contracts entered into pursuant to subdivisions (d), (f), (g), (h), (i), and (j) shall be issued through competitive requests for proposals, and shall seek the best value for the state through a mixture of rental rates or revenue shares, or both. A concession contract executed pursuant to this section shall not exceed five years in length, with one automatic right to renew at new terms, which shall be mutually agreeable to the office and the concessionaire, including any necessary adjustments in rental rates or revenue shares. The office shall require a provision that allows termination at any time with 180 days prior notice.
The office may license or sell, or both, its branded merchandise, images, and other park-related merchandise directly to the public in its discretion.
In addition to onsite concessions, the office may enter into merchandise agreements with individuals, public agencies, qualified nonprofit organizations, and other private entities for sale of park-branded merchandise, images, or other park-related merchandise to the public. The office shall receive fair and reasonable revenues and commissions from any merchandise agreement. These merchandise agreements shall be approved by the Natural Resources Agency and the Department of General Services and subject to all state audit requirements.
All rents, revenues, and commissions received by Exposition Park pursuant to subdivisions (n), (o), and (p) shall be paid into a designated special fund within the Exposition Park Improvement Fund, established pursuant to Section 4106.
On or before January 10, 2024, and annually thereafter, the Department of Finance, in coordination with the office, shall submit a report to the chairpersons of the committees in each house of the Legislature that consider appropriations, the chairpersons of the committees and appropriate subcommittees that consider the State Budget, the Chairperson of the Joint Legislative Budget Committee, and the Legislative Analyst’s Office. The report shall include, but not be limited to, all of the following:
An update on the foundation’s activities undertaken pursuant to the authorities granted in this section.
Details on all joint management agreements, lease agreements, and any contracts executed between the State of California and the foundation.
Revenues and expenditures associated with foundation activities at Exposition Park.
A summary of agreements entered into pursuant to subdivisions (n), (o), and (p) that is expected to involve a total investment or estimated annual gross sales in excess of one million dollars ($1,000,000).
This section shall become inoperative on July 1, 2030, and, as of January 1, 2031, is repealed.
ARTICLE 2. 1-A District Agricultural Association [4131. - 4131.]
The City and County of San Francisco may appropriate and pay over to the 1-A District Agricultural Association for the general uses and purposes of the association such sums of money as the city and county may determine.
ARTICLE 3. 22nd District Agricultural Association [4155. - 4158.]
The 22nd District Agricultural Association may expend up to seven hundred fifty thousand dollars ($750,000) annually for the operation of a fair pursuant to Section 4001 for the purposes enumerated therein from funds received by the district from a lease of district property for horse racing purposes. Any funds thereby received by the district in excess of this seven hundred fifty thousand dollars ($750,000) may be expended in furtherance of the master plan developed pursuant to Section 4156. Any of these funds that are not expended in this manner, or accumulated to be expended in furtherance of the master plan, including the amortization of revenue bonds, shall be transferred by the district to the General Fund upon executive order of the Director of Food and Agriculture.
The State Race Track Leasing Commission shall prepare a master plan for the long-range comprehensive development and improvement of, and construction upon, the property of the 22nd District Agricultural Association. Such plan shall prescribe the amounts which may be expended for the various features of the plan, the period authorized for the completion of each such feature, and the terms of any revenue bond financing undertaken with respect to such plan. Such plan is subject to amendment by the commission.
The Director of Finance may enter into an agreement prior to September 1, 1976, with the State Race Track Leasing Commission and the 22nd District Agricultural Association to commit the state to advance to the Architecture Revolving Fund a sum of not to exceed six hundred thousand dollars ($600,000), if needed, for the construction of improvements at Del Mar Race Track as described in work order AFD 410 of the Office of Architecture and Construction. Any such commitment shall be deemed, with respect to the project for which it is made, to constitute a deposit of funds available for expenditure by the Department of General Services for the purposes of Section 14957 of the Government Code. The Director of Finance, to the extent necessary to honor such commitment, shall authorize by executive order the withdrawal of an amount or amounts from the General Fund in the State Treasury not to exceed six hundred thousand dollars ($600,000) for transfer to the Architecture Revolving Fund. Any amount so transferred shall be used solely for the project for which the commitment was made and shall not exceed the amount necessary for the project, after deducting from the commitment the amount of all funds in the Del Mar Capital Improvement Account. Any sums so transferred shall be repaid to the General Fund, with simple interest at the average rate earned by the Pooled Money Investment Account for the month in which the transfer is made, from the first moneys placed in the Del Mar Capital Improvement Account (created by lease agreement of January 8, 1969, between the State Race Track Leasing Commission and the Del Mar Thoroughbred Club) not needed for the project for which the commitment was given; provided, that, in any case, such repayment in full with interest as specified shall be made from funds in such improvement account prior to October 1, 1978.
Notwithstanding any other law, an officer, employee, operator, lessee, or licensee of the 22nd District Agricultural Association, as defined in Section 3873, shall not contract for, authorize, or allow the sale of any firearm, ammunition, or firearm precursor part on the property or in the buildings that comprise the Del Mar Fairgrounds in the County of San Diego, the City of Del Mar, the City of San Diego, or any successor or additional property owned, leased, or otherwise occupied or operated by the district.
For purposes of this section, the following terms have the following meanings:
“Ammunition” means the term as defined in subdivisions (a) and (b) of Section 16150 of the Penal Code.
“Firearm” means the term as defined in subdivisions (a) and (b) of Section 16520 of the Penal Code.
“Firearm precursor part” means the term as defined in Section 16531 of the Penal Code.
This section does not apply to a gun buyback event held by a law enforcement agency.
ARTICLE 3.5. 25th District Agricultural Association [4161. - 4163.]
The 25th District Agricultural Association may enter into a joint powers agreement pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code with the City of Napa for the purpose of establishing and operating a Napa Center for Wine, Food, and the Arts facility. In addition to those powers specifically authorized to be exercised by Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code, the joint powers agency may accept the donation of, acquire, own, or lease, real property, and may plan, finance by the sale of revenue bonds, construct, equip, and furnish the facility, and parking facilities, and any betterments, improvements, and facilities related thereto, including a bridge to provide access to the facility across the Napa River. The joint powers agency may make and enter into contracts and employ agents and employees. The joint powers agency may manage, maintain, and operate the facility, or may enter into management contracts for the operation of the facility.
The state is not liable for any debt incurred by the joint powers agency in the event of any default on revenue bonds issued by the agency. This disclaimer shall be deemed a provision of the joint powers agreement.
The 25th District Agricultural Association may accept the donation of any real property suitable for the location of the Napa Center of Wine, Food, and the Arts facility, and may lease the property to the joint powers agency.
With the consent of the secretary, a nonprofit organization may hold an annual fair in lieu of the annual fair held by the 25th District Agricultural Association.
Notwithstanding any other provision of law, the department may enter into contracts with the nonprofit organization referred to in subdivision (a) for the receipt of public funds.
Notwithstanding any other provision of law, the Director of General Services, with the consent of, and on terms approved by the secretary, may lease certain premises commonly known as the Napa Valley Expo, containing approximately 37 acres situated in the County and City of Napa, to the nonprofit organization referred to in subdivision (a) for a period not to exceed 99 years, to hold an annual fair pursuant to subdivision (a). While the lease is in effect, the nonprofit organization shall be deemed to be an instrumentality of the state for the limited purpose of carrying out the authority granted the 25th District Agricultural Association by Sections 4161 and 4162. While the lease is in effect, the 25th District Agricultural Association shall be inactive, and shall not have any powers or duties.
The lease executed pursuant to this section may be for less than the market value of the property, and shall include a provision that the lease may be canceled if the lessee or its successors or assignees does any of the following:
Fails to hold an annual fair.
Fails to make a seat on its board of directors available to the Mayor of Napa and the Chairperson of the Napa County Board of Supervisors for the duration of the lease.
Fails, in any calendar year, to hold at least two meetings of its board of directors, open to the public, in the City of Napa.
Prior to the commencement of the term of the lease, the lessee and the Department of Food and Agriculture shall ensure that every employee in the civil service of the 25th District Agricultural Association is provided with the option of continuing his or her employment with the state, or of accepting a position as an employee of the lessee.
With respect to an employee who chooses to continue his or her employment with the state, the employee shall continue to be subject to all of the provisions governing civil service employees, and additionally, all of the following shall apply:
The lessee shall contract with the department for the services of the employee, consistent with his or her civil service classification and status.
The employee has the right to continue to provide services to the lessee pursuant to that contract during the time the employee continues in the civil service classification he or she held at the time of the employee’s election.
With respect to an employee who chooses to leave his or her employment with the state and become an employee of the lessee, those employees are not employees of the state, and are not subject to the requirements of Chapter 10.3 (commencing with Section 3512) and Chapter 10.5 (commencing with Section 3525) of Division 4 of Title 1 of the Government Code.
If a position filled by a civil service employee pursuant to contract with the department becomes vacant, the lessee may fill the position with a non-civil-service employee.
The State of California is not liable for any debts, liabilities, settlements, liens, or any other obligations incurred by or imposed upon the nonprofit organization referred to in subdivision (a). The lease executed pursuant to this section shall expressly provide that the General Fund and the Fair and Exposition Fund shall be held harmless from all debts, liabilities, settlements, judgments, or liens incurred by the nonprofit organization, and that neither the state nor any agency or division thereof shall be liable for any contract, tort, action or inaction, error in judgment, mistakes, or other acts taken by the nonprofit organization, or any of its employees, agents, servants, invitees, guests, or anyone acting in concert with, or on the behalf of, the nonprofit organization.
ARTICLE 3.7. 48th District Agricultural Association [4165. - 4165.]
Notwithstanding any other law, the directors of the 48th District Agricultural Association may not serve concurrently on another fair board.
ARTICLE 3.8. 50th District Agricultural Association [4171. - 4171.]
Notwithstanding any other provision of law, the 50th District Agricultural Association, with the consent of the secretary, may enter into a joint powers agreement pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code for the purpose of creating a joint powers agency to operate, maintain, and improve the facilities and functions of the 50th District Agricultural Association. This joint powers agency’s duties shall include planning, designing, and constructing real property improvements, including new construction, alteration, extension, betterment, and repair, and purchasing fixed and movable equipment related to the facilities and functions of the 50th District Agricultural Association.
The joint powers agency may accept the donation of, acquire, own, sell, or lease real property, and may pledge its property or revenue for the sale of bonds to construct, equip, and furnish the facilities, parking facilities, and any betterments, improvements, and facilities related thereto.
The joint powers agency may make and enter into contracts and employ agents and employees. The joint powers agency may manage, maintain, and operate the facilities, or may enter into management contracts for the operation of the facilities. The planning, designing, and constructing of these improvements, and the agency’s other duties, as specified in this section, shall be undertaken in accordance only with those restrictions applicable to the joint powers agency.
Prior to the commencement of the joint powers agreement, the parties to the agreement and the department shall ensure that every employee in the civil service of the 50th District Agricultural Association is provided with the option of continuing his or her employment with the state, or of accepting a position as an employee of the joint powers agency.
With respect to an employee who chooses to continue his or her employment with the state, the employee shall continue to be subject to all of the provisions governing civil service employees, and, additionally, all of the following shall apply:
The joint powers agency shall contract with the department or the 50th District Agricultural Association for the services of the employee, consistent with his or her civil service classification and status.
The employee has the right to continue to provide services to the joint powers agency pursuant to that contract during the time the employee continues in the civil service classification he or she held at the time of the employee’s election.
With respect to an employee who chooses to leave his or her employment with the state and become an employee of the joint powers agency, those employees are not employees of the state, and are not subject to the requirements of Chapter 10.3 (commencing with Section 3512) and Chapter 10.5 (commencing with Section 3525) of Division 4 of Title 1 of the Government Code.
If a position filled by a civil service employee pursuant to contract with the department becomes vacant, the joint powers agency may fill the position with a non-civil-service employee.
If the joint powers agency contracts with another entity for the operation or management of the facilities, the requirements of subdivision (d) shall apply to the new entity prior to commencement of any agreement.
The State of California is not liable for any debts, liabilities, settlements, liens, or any other obligations incurred by or imposed upon the joint powers agency. The joint powers agreement executed pursuant to this section shall expressly provide that the General Fund and the Fair and Exposition Fund shall be held harmless from all debts, liabilities, settlements, judgments, or liens incurred by the joint powers agency, and that neither the state nor any agency or division thereof shall be liable for any contract, tort, action or inaction, error in judgment, mistake, or other act taken by the joint powers agency, or any of its employees, agents, servants, invitees, guests, or anyone acting in concert with, or on the behalf of, the joint powers agency.
ARTICLE 4. 51st District Agricultural Association [4182. - 4182.]
Notwithstanding any other provision of this code to the contrary, the 51st District Agricultural Association may enter into leases or joint operational agreements with any public agency with respect to the use of land and facilities for district purposes.
ARTICLE 5. Associations Representing More Than One County [4191. - 4192.]
A city may not impose any tax, except a sales or use tax, on any association that represents more than one county and owns land in each of the counties it represents. A city may not, without the consent of the board of such an association, impose any tax, except a sales or use tax, on any of the concessionaires or rental contractors of the association as to events which take place on the property of the association.
The city and the association shall enter into an agreement for the provision of police and fire protection services to the association.
This contract shall require the payment by the association of the reasonable direct actual cost of police or fire protection services.
ARTICLE 6. 54th District Agricultural Association [4195. - 4195.]
The fair site of the 54th District Agricultural Association shall be the property near the City of Blythe known as the Blythe Community Fair Grounds. The association shall not accept any donation or gift of land or other property which is not free and clear of all debts and encumbrances.
ARTICLE 7. 52nd District Agricultural Association and the California Exposition and State Fair [4200. - 4202.]
The Legislature finds and declares that the 52nd District Agricultural Association has contributed over three hundred thousand dollars ($300,000) towards the construction and development of a horse show arena located on the site of the California Exposition and State Fair. The Legislature further finds and declares that, since the transfer from the former fair site of the 52nd District Agricultural Association located in Galt, the association has not had a permanent fair site of its own and that it is in the public interest that the association continue to carry out its activities at the site of the California Exposition and State Fair and that the association and the California Exposition and State Fair maintain a harmonious relationship.
Notwithstanding any other provisions of law, the 52nd District Agricultural Association shall have the right to use each year, during its annual spring fair and fall horse show, the horse show arena and other related facilities of the California Exposition and State Fair, or an alternative mutually acceptable to both parties. The association shall adhere to the standard fee policy of the California Exposition and State Fair for all events. In order to provide incentive for maximum efficiency and cooperation, all subordinate contracts occurring as a result of the association’s use of facilities as provided herein shall be based first on equal recovery of costs by both parties, and thereafter all annualized net operating revenues shall be divided equally, with the exceptions of concessions, souvenirs, novelties, and parking which shall remain at the sole discretion of the California Exposition and State Fair. The California Exposition and State Fair shall provide approximately 1,000 square feet of permanent office space at no cost to the association. Adequate notice shall be given to the California Exposition and State Fair of any use proposed by the association. During all association events, the association shall compensate the California Exposition and State Fair for the services, utilities, and equipment used during its events pursuant to the State Administrative Manual.
During the period of use of the facilities of the California Exposition and State Fair by the association, all capital improvement entitlements accruing to the association shall be expended on the facilities of the California Exposition and State Fair in accordance with the Capital Improvements and Maintenance Master Plan of the facility.
In the event of a dispute between the 52nd District Agricultural Association and the California Exposition and State Fair, the department shall represent the interests of the association. If mediation of any matter fails to reach a consensus, the Department of General Services shall arbitrate all matters based on the best economic interests of the state and the decision of the department in the matter shall be final. Reasonable notice shall be given by the department to all parties to a disputed matter and an opportunity to present evidence shall be provided to all parties. Arbitration costs shall be shared equally between the parties.
CHAPTER 7. War Memorials [4251. - 4253.]
Any association and any county may jointly construct a building to constitute a war memorial. The war memorial may be used for any purpose for which real property of an association may be used.
The war memorial may be constructed and managed under such terms and conditions as may be agreed upon by the board of the association, with the approval of the department, and the board of supervisors of the county. It shall be owned and used jointly by the association and county.
Any construction work which is done pursuant to an agreement shall be performed in accordance with, and subject to, Chapter 1 (commencing with Section 10100) of Part 2 of Division 2 of the Public Contract Code.
CHAPTER 8. Sale of Tickets on Association Property [4301. - 4301.]
It is unlawful for any person to sell or engage in the sale, upon any property of an association, of any ticket of admission or any other evidence of the right of entry to a stadium or an arena, pavilion, or other building which is for holding sports arena events, athletic contests, contests of skill, exhibition spectacles, and other public meetings, places of amusement, or entertainment, contests or performances at any premium or price which is in excess of such maximum price that is printed or indorsed upon it, plus lawful taxes, unless he has first procured a written permit which is issued by such association.
CHAPTER 9. State Race Track Leasing Commission [4351. - 4363.]
There is hereby created the State Race Track Leasing Commission which shall be composed of the Director of Food and Agriculture, the Director of Finance, and the Director of General Services and three individuals, appointed by the Governor, who are members of the Board of Directors of the 22nd District Agricultural Association. The Director of Finance shall serve as chairperson of the commission. All meetings of the commission shall be open and public.
The Department of Food and Agriculture shall provide clerical services to the commission. The Department of Food and Agriculture, the Department of General Services, and the California Horse Racing Board shall cooperate with the commission, and, insofar as possible, shall, on request, allow the commission to use their staffs as needed by the commission. However, the sole counsel for the commission shall be the Attorney General, as provided in Section 4357.
The State Race Track Leasing Commission may enter into leases or other agreements for the use of the Del Mar Race Track and any other property owned or controlled by the 22nd District Agricultural Association which the commission shall deem necessary to provide horseracing at Del Mar Race Track. Any such lease or agreement shall be on behalf of the 22nd District Agricultural Association, and the district shall continue in control of its property, subject to the conditions and terms of that lease or agreement.
The California Horse Racing Board shall, at the request of the commission, certify the eligibility of any prospective lessee or user of the property to be licensed to conduct horseracing at the Del Mar Race Track.
The Attorney General shall serve as counsel for, and adviser to, the commission.
The commission shall follow the same procedures, insofar as appropriate, in leasing, or entering into agreements for the use of, the Del Mar Race Track as the Department of General Services follows in leasing or entering into agreements for other state real property. The commission shall, prior to awarding a lease of, or entering into an agreement for the use of, the Del Mar Race Track, consider all the factors concerning appropriate capital improvement of that racetrack, the financing of the racetrack, additional racing opportunities, and any use of new or additional properties or facilities, including, but not limited to, a grandstand, which factors shall be considered in the award of the lease or entering into the agreement. The commission shall also consult with any affected local governing bodies, prior to awarding the lease or entering into the agreement.
If the commission makes a determination pursuant to this chapter as to the action it proposes to take in awarding the Del Mar Race Track lease or entering into the agreement, it shall report to the Legislature, setting forth the procedures followed by the commission in reaching its determination and the reasons the proposed award or agreement is in the best interests of the state. The commission shall also make recommendations regarding any additional legislation which it deems necessary. However, no legislative action is required to make effective and operative any lease awarded, or agreement entered into, by the commission. The commission shall also make a similar report to the Legislature upon the master plan when that plan is completed.
After the award of a lease or entering into an agreement for the use of the Del Mar Race Track, the commission shall meet from time to time to review the operation of the lease or agreement, and the master plan, and any other related matters. It shall also make such recommendations as it deems proper to the Legislature, other state agencies, including, but not limited to, the 22nd District Agricultural Association, and to the lessee or user of the property.
The commission is a “department” for the purposes of hearings pursuant to Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of the Government Code.
The commission may enter into a joint powers agreement with the 22nd District Agricultural Association pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code. For the purposes of Section 6502 of the Government Code, the common powers to be exercised by the entity created pursuant to the joint powers agreement shall be the powers of a district agricultural association. The commission may contract with the joint exercise of powers entity pursuant to law and may pledge any and all revenues, moneys, accounts, accounts receivable, contract rights, and other rights to payment of whatever kind, pursuant to the terms and conditions approved by the commission. The revenues, moneys, accounts, accounts receivable, contract rights, and other rights to payment of whatever kind pledged by the commission or its assignees constitute a lien and security interest which immediately attaches to the property so pledged and is effective, binding, and enforceable against the commission, its successors, purchasers of the property so pledged, creditors, and all others asserting rights therein, to the extent set forth, and in accordance with, the terms and conditions of the pledge, irrespective of whether those persons have notice of the pledge and without the need for any physical delivery, recordation, filing, or further act.
The State of California pledges to, and agrees with, the holders of any bonds, other indebtedness, or obligations for the financing of the improvements described in the master plan pursuant to Section 4156, and which are issued or executed and delivered by the commission, the 22nd District Agricultural Association, or a joint exercise of powers entity created by them, that the state will not alter or change the structure of funding of, and deposits to, the commission or the 22nd District Agricultural Association set forth in Article 9.2 (commencing with Section 19605) of Chapter 4 of Division 8 of the Business and Professions Code, or the pledge of funds for debt service, security, including any coverage factors, and expenses entered into pursuant to this Part 3 until the bonds, other indebtedness, or obligations are fully paid or discharged or have been fully provided for in accordance with their terms. However, nothing precludes any alteration or change if and when adequate provision has been made by law for the protection from impairment of the contract represented by the bonds, other indebtedness, or obligations, and the right to alter or change is hereby reserved. The commission, the 22nd District Agricultural Association, and a joint exercise of powers entity created by them, are each authorized to include this pledge and undertaking of the state in their bonds, agreements evidencing other indebtedness, and other indebtedness or obligations for the financing of the improvements described in the master plan pursuant to Section 4156.
PART 4. COUNTY AND DISTRICT AGRICULTURAL FAIRS [4401.5. - 4535.]
CHAPTER 1. State Money [4401.5. - 4403.]
The secretary may expend an amount not to exceed a total of one hundred thousand dollars ($100,000) in any fiscal year for any exhibit or exhibits located on any state-supported fair demonstrating, in a creative and innovative manner, the process of production and use of food and fiber from the producer to the consumer in this state.
The secretary may annually provide for a conference of fair judges to aid the department in prescribing regulations adopted pursuant to Section 4501. The secretary may expend up to fifteen thousand dollars ($15,000) in any fiscal year for these purposes.
The department may expend funds appropriated by Section 22 of Chapter 1440 of the Statutes of 1985 in the 1985–86 and 1986–87 fiscal years for capital outlay and deferred and major maintenance projects of a health and safety nature at county fairs, district agricultural association fairs, and citrus fruit fairs.
A county fair, district agricultural association fair, or citrus fruit fair may expend funds for promotional and public relations purposes of the fair.
The department may expend funds for promotional and public relations purposes for county fairs, district agricultural association fairs, and citrus fruit fairs.
CHAPTER 2. Restrictions [4431. - 4444.]
Except as otherwise provided in this chapter, on or after January 1, 1943, apportionments shall be made only to counties or district agricultural associations which received apportionments on the basis of the premiums which were paid at fairs held by them during the calendar year 1941.
Merced, Madera, Santa Cruz, and Solano Counties may each receive an apportionment although they held no fairs in the calendar year 1941 and the agricultural associations of the agricultural districts which comprise such counties each received an apportionment during the calendar year 1941.
Marin County may receive an apportionment although that county held no fair in the calendar year 1941 and the agricultural association of the agricultural district of which Marin County is a part received an apportionment during the calendar year 1941.
A district agricultural association of a district created subsequent to January 1, 1943, may receive an apportionment.
A district agricultural association which did not receive an apportionment on the basis of the premiums which were paid at a fair that was held during the calendar year 1941 may receive an apportionment unless a county whose area lies in whole or in part within the boundaries of the agricultural district received an apportionment on the basis of the premiums which were paid at a fair that was held during the calendar year 1941.
A district agricultural association which did not receive an apportionment on the basis of the premiums which were paid at a fair that was held by it during the calendar year 1941, may receive an apportionment if the board of supervisors of each county which is in whole or in part within the boundaries of the agricultural district in which the association is formed and which received an apportionment on the basis of the premiums which were paid at a fair that was held during the calendar year 1941, by resolution, announces its intention to discontinue permanently the holding of fairs for which the county would be eligible to receive an apportionment.
A certified copy of the resolution shall be filed with the department.
After the board of supervisors adopts and files the resolution, the county is no longer eligible to receive any apportionment and the district agricultural association which thereby becomes eligible to receive an apportionment shall, for the purpose of determining its maximum base of apportionment, be entitled to receive credit for the fairs which were previously held by the county. They shall be considered as fairs which were held by the association in calculating the maximum apportionment base for the association.
Within one year from and after the date the resolution is adopted, the county shall pay to the district agricultural association the unexpended balance of any money which was previously apportioned to the county.
No apportionment shall be made for more than one fair in any one year in any county or district. The fair may be operated in one or more seasonal divisions with the approval of the department. The department may approve such method of operation if it finds that savings will accrue from not providing additional facilities or that an increase in revenue will result or both.
A county or district agricultural association may contract with each other or with a county fair association to hold an agricultural fair without loss of any apportionment to which it otherwise is entitled separately. However, no county or district agricultural association may receive an apportionment for a joint or combined fair which is held by them.
No fair for which a separate appropriation is made by the state shall participate in the apportionment of any money appropriated for the encouragement of county and district agricultural association fairs.
If a district agricultural association fair is conducted in any county of the state, no county fair, except a county fair which received apportionments prior to September 9, 1953, shall be paid any apportionment.
No apportionment shall be made to any fair held in Sacramento County after January 1, 1948, other than a fair conducted by the California State Fair and Exposition, the California State Exposition and Fair Executive Committee or by a district agricultural association in Agricultural District 52.
CHAPTER 3. Payment [4461. - 4461.]
Any funds that are appropriated for the encouragement of county, district agricultural association, or combined county and district agricultural association fairs which, pursuant to law, are apportioned by the department shall be paid monthly to the several eligible counties and district agricultural associations in such amounts as the department determines during the fiscal year in which the apportionment is made. The department shall make its determination of monthly amounts based on the relative need of the county or district agricultural association for the funds during the particular month. The monthly apportionment of funds on a need basis shall not result in an annual apportionment to a particular county or district agricultural association in excess of the amount otherwise payable. The aggregate of the monthly apportionments to each of the several counties and district agricultural associations shall not exceed the maximum apportionment for the year.
“Need”, as used in this section, means the combination of the current cash position of the fair and the time of year at which the annual fair is held.
CHAPTER 4. Deposit and Expenditure [4481. - 4483.]
The county or district agricultural association shall deposit in a bank account or a deposit in a savings and loan association that is approved by the Director of Finance in accordance with Sections 16506 and 16605 of the Government Code any state money which is apportioned to it for the encouragement of the fair which it conducts.
The money which is so deposited may be expended for any of the following:
Premiums.
Capital outlay, including purchase of land, construction improvements, and equipment.
Acquisition, installation, maintenance, and operation of recreational and cultural facilities at fairgrounds of the county or district agricultural association.
Support of county or district agricultural association fairs.
Any expenditure shall be made pursuant to a budget which is submitted to the Department of Food and Agriculture and approved by the Department of Finance pursuant to Sections 13320 to 13324, inclusive, of the Government Code.
Any expenditure by a county for construction and improvements is subject to Sections 25450 to 25463, inclusive, of the Government Code.
CHAPTER 5. Department of Food and Agriculture Supervision [4501. - 4513.]
The department shall prescribe regulations for both of the following:
The judging of exhibits.
The maximum amount of premiums which may be offered and paid for all classes, sections, and types of exhibits.
No fair shall receive any apportionment of funds pursuant to this part unless it complies with the regulations of the department.
The department may at any time examine the books and records of any fair to determine the correctness of any statement or report which is filed with the department.
Every fair within the network of California fairs that conducts a fair for which any apportionment is sought shall file a detailed statement of its operations in the previous fiscal year with the department within 90 days of the end of that fiscal year. The content and form of the statement shall be prescribed by the department.
The department shall review the statements of operation which are filed by the several fairs pursuant to Section 4505. It shall consider such reports, statistics and other information as to the conduct, operation, management of, and other matters which relate to such fairs.
The department may classify, and shall consider, at least once every five years, whether to classify or reclassify, fairs that are required to file reports pursuant to Section 4505. The department may request advice and recommendations from boards of directors of fairs for this purpose. In making classifications, the department may, in addition, take into consideration factors that may include, but are not limited to, the following:
The type and class of agricultural, including livestock, industrial, and natural resources that are exhibited, and the amount of premiums that are paid in accordance with the approved premium list of the fair.
Whether the fair is regional in nature, offers a special feature for agriculture, livestock, or industry, or is a sectional fair limiting exhibits to the region in which the fair is held, and any other characteristics and factors that the department deems necessary.
The ratio of attendance at the fair to the population of the area that is served by it.
The efficiency of management, including operational procedures, revenue from sources other than the state, quality of exhibits, and community interest in the fair.
The extent and nature of interim utilization of fair property as promoted by the fair management.
The need of the fair for money from state sources.
The classifications of fairs established pursuant to Section 4507 may be considered in determining the basis of compensation to fair managers of fairs that are classified under those provisions.
The department shall annually perform all of the following:
Review and maintain a separate and accurate job description for each fair manager.
Solicit information from fair board of directors that will accurately describe the fair managers performance and responsibilities in regard to merit salary increases for its fair manager.
Annually report its findings to fair directors and fair managers.
The department shall prepare a manual setting forth the powers, duties, and responsibilities of directors of county and citrus fruit fairs, and a separate manual setting forth the powers, duties, and responsibilities of directors of district and combined county and district fairs. The department shall also:
Revise the manuals annually.
Provide copies of the manuals to each director and manager of every county, district, combined county and district, and citrus fruit fair.
All county fairs and citrus fruit fairs shall, prior to entering into a carnival contract, do both of the following:
Notify all persons on the department’s list of qualified carnival contractors of the contract opportunity at least 180 days prior to entering into the contract.
Provide all applicants for the carnival contract a hearing before the board or governing authority on their proposal.
If a county fair or citrus fruit fair enters into a carnival contract with a person other than the highest bidder, it shall submit a justification for that action to the department.
No county fair or citrus fruit fair shall enter into a carnival contract for a term which exceeds three years without the approval of the department.
For the purposes of this chapter, “carnival” is defined as a company of transportable amusement rides, food and beverage units, and games that may have one or more owners and travels from place to place, in a group or separately, providing entertainment and recreation to the public.
For the purposes of this chapter, “carnival workers” are defined as employees of a carnival.
If carnival incident or accident records are required as conditions to contracts between carnival contractors and district agricultural associations, county fairs, or citrus fruit fairs, the department shall maintain and review carnival contractor’s accident reports submitted by the Division of Occupational Safety and Health in the Department of Industrial Relations to the department and disseminate information regarding these reports to district agricultural associations, county fairs, and citrus fruit fairs.
The department shall assist each fair in the development of a long-term maintenance schedule, subject to annual review by the department. The review is for the purpose of ensuring that the schedule is established so individual project costs, project descriptions, and projected completion dates are readily available for public agency review.
The department shall develop an appeal process which allows individual fairs to request funding for projects and to present information concerning needed projects at their fairgrounds.
The department may expend funds for promotional and public relations purposes for the California Exposition and State Fair.
The California Exposition and State Fair may expend funds for promotional and public relations purposes of the fair.
CHAPTER 6. Fairs Allocation and Classification Committee [4531. - 4535.]
The Fairs Allocation and Classification Committee is continued in existence. It consists of seven Members of the Senate and seven Members of the Assembly.
To the extent that it is feasible, appointments to the committee shall be so made that there is one Member of the Senate and one Member of the Assembly on the committee from each of the following areas:
Area 1. Siskiyou, Modoc, Trinity, Shasta, Lassen, Tehama, Plumas, and Sierra Counties.
Area 2. Butte, Yuba, Sutter, Glenn, Colusa, Yolo, Sacramento, and Solano Counties.
Area 3. Del Norte, Humboldt, Mendocino, Lake, Sonoma, Napa, and Marin Counties.
Area 4. El Dorado, Amador, Calaveras, Tuolumne, Mariposa, Nevada, and Placer Counties.
Area 5. San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and Kern Counties.
Area 6. San Francisco, Contra Costa, Alameda, San Mateo, Santa Clara, Santa Cruz, San Benito, Monterey, and San Luis Obispo Counties.
Area 7. Santa Barbara, Ventura, Los Angeles, Orange, San Diego, Imperial, San Bernardino, Inyo, Mono, Alpine, and Riverside Counties.
The committee shall, from time to time, elect its chairman and vice chairman. The committee may meet at any time, whether or not the Legislature is in session, and shall continue in existence until otherwise provided by law.
The committee shall investigate, study, and analyze, when it deems it necessary, any or all facts and matters relating to the operation and financing of fairs that are subject to this division and the effect and operation of the laws relating thereto.
The committee shall regularly review the administration of the Fair and Exposition Fund by the department and make recommendations to improve efficiency and economy in the operation of all fairs.
The committee shall seek methods whereby private financing can be secured for support of all local fairs.
The committee shall regularly review the capability of the department to administer and supervise the allocation of moneys from the Fair and Exposition Fund to all local fairs.
The committee shall make recommendations to the Legislature regarding the establishment of new district agricultural associations or local fairs.
The committee shall regularly review the criteria for the classification of fairs specified by Section 4507 and make recommendations for changes whenever appropriate.
The committee shall encourage, where feasible, the conduct on a regular basis of joint or combined fairs pursuant to Section 4441.
The committee shall report to the Legislature at the commencement of each regular session and may report to the Legislature at any time, including in such reports its recommendations, if any, as to necessary or desirable legislative action. The provisions of the Joint Rules of the Senate and Assembly, as they may exist from time to time, which relate to joint investigating committees apply to the committee.
PART 5. CITRUS FRUIT FAIRS [4601. - 4703.]
CHAPTER 1. Definitions [4601. - 4603.]
Unless the context otherwise requires, the definitions in this chapter govern the construction of this part.
“Association” means a nonprofit corporation organized and existing under the laws of this state for the purpose of and which engages in conducting and carrying on a citrus fruit fair.
“Citrus fruit fair” means any citrus fruit fair or citrus fruit fair and exposition which satisfies all of the following requirements:
Has been conducted and carried on by an association for not less than four or more than 15 consecutive days during each calendar year for a period of not less than 20 consecutive years.
Citrus fruits are exhibited for prizes and premiums at the fair. The fair has for its purpose the promotion and encouragement of the citrus fruit industry of this state.
CHAPTER 3. Powers and Duties [4701. - 4703.]
An association that conducts and carries on any citrus fruit fair that is eligible to receive apportionments pursuant to this division:
Has the same power as a district agricultural association to construct, maintain, and operate recreational and cultural facilities of general public interest.
Is an instrumentality of the state for the purposes mentioned in subdivision (a) and in Section 4603.
Upon dissolution of any such association, all of its property, after payment of outstanding debts, shall escheat to the state.
All property of any such association which is used exclusively in conducting citrus fruit fairs, and its recreational and cultural facilities which are of general public interest, are exempt from taxation. No affidavit need be filed to claim this exemption.
CHAPTER 2. Benefits and Appropriations [ - ]
DIVISION 4. PLANT QUARANTINE AND PEST CONTROL [5001. - 8808.]
PART 1. GENERALLY [5001. - 6299.]
CHAPTER 1. Definitions and General Provisions [5001. - 5035.]
ARTICLE 1. Definitions [5001. - 5012.]
Unless the context otherwise requires, the definitions in this article govern the construction of this division.
“Appliance” means any box, tray, container, ladder, tent, vehicle, implement, or any other article which is, or may be, used in connection with the growing, harvesting, handling, or transportation of any agricultural commodity.
“Crop seed” means the seed or seedlike fruit of grain, beans, flax, beets, onions, or any other crop, whether or not it is intended for planting purposes.
“Noxious weed” means any species of plant that is, or is liable to be, troublesome, aggressive, intrusive, detrimental, or destructive to agriculture, silviculture, or important native species, and difficult to control or eradicate, which the director, by regulation, designates to be a noxious weed. In determining whether or not a species shall be designated a noxious weed for the purposes of protecting silviculture or important native plant species, the director shall not make that designation if the designation will be detrimental to agriculture.
“Nursery stock” means any plant for planting, propagation, or ornamentation.
“Pest” means any of the following things that is, or is liable to be, dangerous or detrimental to the agricultural industry of the state:
Any infectious, transmissible, or contagious disease of any plant, or any disorder of any plant which manifests symptoms or behavior which the director, after investigation and hearing, finds and determines is characteristic of an infectious, transmissible, or contagious disease.
Any form of animal life.
Any form of vegetable life.
“Plant” includes any part of a plant, tree, plant product, shrub, vine, fruit, vegetable, seed, bulb, stolon, tuber, corm, pip, cutting, scion, bud, graft, or fruit pit.
“Shipment” means any article or thing which is, may be, or has been transported from one place to another place.
“Horticultural product” means those products as stated in Group Number 18 of the Standard Industrial Classification Manual which are grown under cover or outdoors, including bulbs, flowers, shrubbery, florist greens, fruit stock, floral products, nursery stock, ornamental plants, potted plants, roses, seed, sod, fruits, food crops grown in greenhouses, vegetables, and horticultural specialties not otherwise specified.
Agricultural or farm products include any horticultural product.
Unless otherwise provided in this code, for the purposes of pest management, “crop” means a plant or animal, or a product derived from a plant or animal, that can be grown and harvested for profit or for the subsistence of humans or animals.
Unless otherwise provided in this code, for the purposes of pest management, “forage” means food for domestic or other wild animals that is taken by browsing or grazing, or food that wild or domestic animals take for themselves.
ARTICLE 2. General Provisions [5021. - 5029.]
Unless otherwise provided, any treatment which may be required pursuant to this division is at the risk and at the expense of the owner or person in charge or in possession of the property which is treated at the time of treatment.
This division shall not be construed to conflict with any other law which provides for the extermination or control of ground squirrels or other animal pests. If any proceedings are commenced, however, pursuant to this division, this division and no other law applies to such proceedings.
The commissioner, whenever necessary, may enter and make an inspection of any premises, plant, conveyance, or thing in his jurisdiction.
The secretary or the commissioner shall, during the maintenance of any quarantine established by the secretary pursuant to Article 1 (commencing with Section 5301) of Chapter 5, inspect any plant or thing that is, or is liable to be, infested or infected by, or which might act as a carrier of, any pest. The person who conducts the inspection shall not permit any of those plants or things to pass over the quarantine line during the quarantine, except pursuant to a certificate of inspection and release that is signed by that person.
Whenever the commissioner finds that a plant or thing does not, and will not, present a threat to the state, the commissioner may recommend to the secretary the waiver of, and the secretary may waive, the inspection and certification requirements specified in subdivision (a).
The Regents of the University of California may collect and, subject to the provisions of Section 6305, import into this state from foreign countries, parasitic and predaceous insects for use in the control of insect pests of horticultural and agricultural crops and of livestock. The regents may, for this purpose, employ and send abroad experts who shall be allowed, in addition to their compensation, their necessary subsistence, traveling, and other expenses incidental to the performance of their duties.
The department, in consultation with the University of California, the United States Department of Agriculture, and members of the scientific community with expertise in exotic pest managment, shall conduct a study on the desirability and feasibility of establishing an Exotic Pest Research Containment Facility, which shall, as a primary function, conduct exotic pest research and perform additional activities with respect to the administration, training, service, and diagnostics relating to exotic pests. The research of the facility shall emphasize flexibility and adaptability to accommodate technological advances and research into new exotic pest problem areas. The study shall include, but not be limited to, the following:
The availability of funding for the facility from federal, state, local, and private sources.
Whether to locate the facility within or outside of California.
Protocol for access to and operation of the facility.
The department shall report its findings and recommendations to the Legislature, not later than January 1, 1992.
The director may overrule a local agency’s ordinance or regulation where that ordinance or regulation would prevent or inhibit an eradication effort. The director may act under this section only when the Governor has declared a state of emergency relating to the eradication effort and the effect of the local ordinance or regulation will be to threaten agriculture on a statewide basis, to materially interfere with the ability of the director or the commissioner to eradicate a pest, or where the pest is of such a nature that it could rapidly spread to other areas beyond the boundaries of the local agency.
“Local agency” means any public agency, other than a state agency, board, or commission and includes, but is not limited to, cities (chartered or otherwise), counties, and special districts.
Unless otherwise expressly provided, a violation of any provision of this division is a misdemeanor.
Any person who intentionally violates any state or federal quarantine law or regulation is liable civilly as provided in Sections 5310 and 5311, and subdivision (c) of this section, and is subject to criminal or civil penalties, or both, pursuant to the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7) of the Business and Professions Code.
Either of the following factual findings shall constitute prima facie evidence that a violation of any state or federal quarantine law or regulation pursuant to subdivision (a) is an intentional violation:
A violation of Section 6401 and possession of a shipment, plant, or thing that is regulated by a state or federal quarantine law or regulation and that has not been inspected and released by a federal, state, or county quarantine official in either of the following circumstances:
The plant or thing is found concealed from view.
The person in possession has been found repeatedly in possession of those plants or things.
A combination of findings showing that a person is in possession of a shipment, plant, or thing that is regulated by a state or federal quarantine law or regulation and that was fraudulently or secretly brought into the state and the person in possession is engaged in a business or other commercial activity where a reasonable expectation exists that the person was aware of the state or federal quarantine laws or regulations.
Any person who negligently or intentionally violates any state or federal law or regulation, including any quarantine regulation, by importing any plant, or other article, that, by virtue of being pest or disease infested, causes an infestation of a plant, pest, or disease, or causes an existing infestation to spread beyond any quarantine boundaries, is liable civilly in a sum not to exceed twenty-five thousand dollars ($25,000) for each act that constitutes a violation of the law or regulation.
The Attorney General, upon request of the secretary, shall petition the superior court to impose, assess, and recover the sum imposed pursuant to subdivision (c). In determining the amount to be imposed, the court shall take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation and the nature and persistence of the violation.
The remedy under this section is in addition to, and does not supersede or limit, any and all other remedies, civil or criminal, that are otherwise available to the state.
Any funds recovered pursuant to this section shall be deposited in the Department of Food and Agriculture Fund for emergency pest or disease exclusion, detection, eradication, or research of agricultural plant or animal pests or diseases. These funds may be allocated to cover costs related to the enforcement of this division. These funds are in addition to any funds appropriated for those purposes pursuant to Section 224.
The department, in consultation with the State Department of Health Services, shall design and implement a program to provide information to persons who reside in areas scheduled to be treated with pesticides on an emergency basis in order to eradicate plant pests.
The purpose of this program is to provide information about the health effects of the pesticides used in eradication projects. The program shall be designed to provide the greatest amount of information practicable to affected citizens. The department shall conduct outreach efforts to inform the public about the existence of this program.
ARTICLE 3. Proof of Ownership [5030. - 5035.]
Upon probable cause to believe a person buying, selling, or transporting a shipment of plant material intended to be marketed for commercial purposes is in violation of this division, proof of ownership of the plant material shall be made available for inspection upon request of the director, the commissioner, or any peace officer. If the director or the commissioner has probable cause to believe that a person is in unlawful possession of any shipment of plant material, he or she may request a peace officer to stop the vehicle for inspection. The record of proof of ownership shall contain the following information:
The name, address, telephone number, and signature of the seller or the seller’s authorized representative.
The name, address, and telephone number of the buyer, or consignee if the commodity has not been sold.
The common or generic name and quantity of the commodity.
The name of the country, state, or territory where the commodity was grown.
It is unlawful for any person to knowingly falsify, misrepresent, or cause to be falsified or misrepresented, any information in a record intended to show proof of ownership.
The director or commissioner may compile information and make any necessary investigations relative to suspected violations of this division. The director or commissioner may call and conduct a hearing in furtherance of the investigation.
The person in custody of any records containing information required pursuant to Section 5030 shall exhibit those records upon a demand therefor by the director or commissioner, as their designees, or by a peace officer. The records may include, but are not limited to, certificates of inspection or treatment, bills of sale or consignment, truck invoices, or bills of lading.
At the time of the hearing, the director or commissioner may take any of the following actions:
Administer oaths and take testimony.
Issue subpoenas that compel the attendance of any witness before the director or commissioner, together with the production of all relevant documents.
Compel disclosure by witnesses of all facts that are known to them relative to the matter under investigation.
Any party that disobeys any order or subpoena of the director is subject to Section 11188 of the Government Code.
CHAPTER 2. County Administration [5101. - 5105.]
Each commissioner is an enforcing officer of all laws and regulations which relate to the prevention of the introduction into, or the spread within, the state of pests. He is, as to such activities, under the supervision of the director.
Each commissioner and each qualified representative of the commissioner is a state plant quarantine officer for the following purposes:
Certifying to the pest condition or pest treatment of shipments, if certification as a condition of movement or entry is officially required.
Enforcing laws and regulations which relate to plant quarantine.
Any interested person that is aggrieved by any action or order of a commissioner may appeal in writing to the director within five days after notice of action or order if no other time limit is prescribed within which to appeal from such action or order. No appeal may be taken from any authorized summary action of the commissioner.
The director shall hear any appeal from an action or order of a commissioner within 10 days after the receipt of the appeal upon notice to all interested parties. His decision shall be final.
Pending decision after appeal, action by the commissioner on the case under appeal shall be suspended by the director. The refusal of any commissioner to carry out the orders and directions of the director which are issued in connection with any appeal is neglect of duty.
CHAPTER 3. Certification of Plant Shipments [5201. - 5209.]
As used in this chapter, “certificate” means the certification by a commissioner, deputy commissioner, or inspector of the pest condition or treatment of any shipment of plants.
The board of supervisors of any county may establish a schedule of fees for any or all classes of certificates to be paid by shippers that request such certificates.
No fee shall be charged for certification required by any law, regulation, or requirement of the United States or of this state or by any ordinance, regulation, or requirement of any county of this state.
The schedule of fees for the certificates shall be based upon the approximate cost of the inspection.
A commissioner shall make such inspections as may be necessary to determine the facts which are required by the state or country of intended destination and shall issue a certificate that states the facts which are determined upon receipt of the scheduled fee for a certificate or, if no scheduled fee has been established, upon request of the shipper.
The board of supervisors of any county may designate any place within the county as a fumigation or treatment station for the purpose of enabling the commissioner to inspect plant shipments for certificates, if fumigation or other treatment is required by the state or country of destination as a condition of shipment to such state or country.
If the board of supervisors designates a place as a fumigation or treatment station, the commissioner shall inspect plant shipments at the stations, for shipment to other states or countries which require fumigation or treatment as a condition of shipment.
It is unlawful for any person to alter, deface, or wrongfully use a certificate issued pursuant to any provision of this division.
Except as provided in subdivision (b), any violation of this chapter is an infraction punishable by a fine of seventy-five dollars ($75) for the first offense and is a misdemeanor for a second or subsequent offense within three years of a prior conviction of a violation of this chapter.
Any use by any person of a false or invalid certificate for the purpose of certification pursuant to this chapter is a misdemeanor.
For the purpose of this section, “false certificate” means a document, as defined in Section 5201, that has not been issued by a commissioner, deputy commissioner, or inspector.
For the purposes of this section, “invalid certificate” means a document, as defined in Section 5201, that is based upon false information supplied to the commissioner, deputy commissioner, or inspector which is essential to the issuance of the certificate.
CHAPTER 4. Newly Discovered Pests [5251. - 5255.]
Upon the discovery of any pest, the director shall immediately report the discovery to the commissioner of the county in which the pest is found.
The director shall furnish to the commissioner a statement as to the best known means or methods for eradicating or controlling the discovered pest and advise him of the procedure or treatment to prevent the further spread of the pest.
The commissioner shall disseminate all or any portion of the statement in whatever manner he may deem is best suited to inform persons that own or have charge or possession of any premises or appliances within the county where there is a probability of the presence of the pest.
In any county where there is no commissioner, or if the director finds that the commissioner has failed or neglected to use all reasonable means to effect the control or eradication of any discovered pest, the director may undertake the control or eradication of the pest. He may exercise any power or authority which is conferred on the commissioner by this division.
In any proceeding which is commenced pursuant to Section 5254, any duty, jurisdiction, or authority which is conferred on the commissioner by this division is conferred or imposed upon and transferred to the director.
CHAPTER 4.5. Invasive Pest Planning [5260. - 5267.]
The Legislature hereby finds and declares all of the following:
California is home to more species of plants and animals in the world and the highest number of species found nowhere else in the world.
The state’s plants and animals coexist to create the complex ecosystems upon which so much of the state’s people and economy depend.
Global travel, global trade, and climate change are introducing invasive animals, plants, insects, and plant and animal diseases to California.
Global warming is changing ecosystems at an unprecedented pace. These changes bring invasive species and pests that pose direct threats to the state’s native and agricultural biodiversity.
The State of California should undertake advance planning on whether and how to address those invasive animals, plants, insects, and plant and animal diseases that are a threat to the state’s agriculture, environment, or economy.
The Legislature fully recognizes that any prediction of which invasive pests will enter California cannot be precise because of the many entry mechanisms.
For purposes of this chapter, “invasive pests” means animals, plants, insects, and plant and animal diseases or groups of those animals, plants, insects, and plant and animal diseases, including seeds, eggs, spores, or other matter capable of propagation, where introduction into California would or would likely cause economic or environmental harm. “Invasive pests” does not include agricultural crops, livestock, or poultry generally recognized by the department or the United States Department of Agriculture as suitable to be grown or raised in the state.
The department shall develop and maintain a list of invasive pests that have a reasonable likelihood of entering California for which a detection, exclusion, eradication, control, or management action by the state might be appropriate. In developing the list, the department shall consider any invasive pests identified by the federal or state government for which a detection, exclusion, eradication, control, or management action might be undertaken.
Based on available funding, the department shall develop and maintain a written plan on the most appropriate options for detection, exclusion, eradication, control, or management of the higher priority invasive pests on the list prepared pursuant to Section 5261. In determining which invasive pests are the higher priority and in developing the most appropriate options for detection, exclusion, eradication, control, or management, the department shall consult with the United States Department of Agriculture, the University of California, other state agencies and departments, and others in the scientific and research community. In implementing this chapter, the department may undertake or contract for scientific research with the University of California or other institutions of higher learning. The plan shall include both of the following:
A discussion of the state not acting to detect, exclude, eradicate, control, or manage the invasive pest.
The identification and description of the most appropriate options for detection, exclusion, eradication, control, or management of the invasive pest.
If the department determines that aerial application of pesticides would be among the more appropriate responses, the plan shall contain a discussion of all of the following:
The pesticides that would likely be the most appropriate.
The concentrations of those pesticides.
How often pesticide use would be necessary.
A list of each active ingredient and inert material, to the extent that the disclosure of the inert material is permitted by state and federal law.
A summary of up-to-date scientific information on the impacts of the pesticide and its inert materials on all of the following:
Healthy children and adults.
Children and adults with compromised health.
Domestic animals.
Fish and wildlife.
Public health and the environment, including drinking water.
The State Department of Public Health, the Department of Fish and Game, the Office of Environmental Health Hazard Assessment, the Department of Boating and Waterways, the Department of Forestry and Fire Protection, the State Water Resources Control Board, and the Department of Pesticide Regulation shall participate in the preparation of the plan in their areas of expertise. The Office of Environmental Health Hazard Assessment shall include an analysis of the risks of using the pesticide and its inert material.
In developing the plan, the department shall hold public hearings that shall include a presentation by the department and the opportunity for public comment and establish a process for submittal of public comment. Following the public hearing, the department shall reassess the appropriateness of the response and may revise the response and may hold additional public hearings.
The plan shall include a characterization of the number of and the nature of the public comments received pursuant to subdivision (d).
The department shall make the plan available to the public, including making it available on the department’s Internet Web site.
If the department determines that an invasive pest identified on the list developed pursuant to Section 5261 has entered the state, the department shall notify the Governor, the governing boards of affected cities and counties, and county agricultural commissioners.
If the department determines that an invasive pest has entered the state and the urban aerial application of a pesticide, or a communitywide ground application of a pesticide, is the preferred eradication, control, or management response, the department shall advise the Governor and provide the Governor with a copy of the plan for that invasive pest. If a plan has not been prepared for that invasive pest, the department shall consult with the appropriate agencies and shall advise the Governor of the lack of a plan and advise the Governor of the best available options.
If the department determines that an invasive pest has entered the state, and an urban aerial application of a pesticide, or a communitywide ground application of a pesticide, is the selected response, the department shall do all of the following:
Notify the governing boards of affected cities and counties and their agricultural commissioners and health officers.
Notify the public of all of the following:
The existence of the invasive pest.
The consequences of not eradicating, controlling, or managing the invasive pest.
The active ingredient and inert material of the pesticide, to the extent that the disclosure of the inert material is permitted by state and federal law.
The method or methods of applying the pesticide.
The implications of the use of the pesticide and the inert materials on human health, domestic animals, fish and wildlife, and the environment.
Hold public hearings in areas subject to aerial application of the pesticide or communitywide ground application of the pesticide.
Establish a telephone hotline for the public to report adverse health consequences and a process to evaluate and respond to adverse health consequences.
This program established by this chapter may only be funded with federal funds.
This chapter does not apply to the following:
The State Department of Public Health and local vector control agencies providing services in accordance with Section 116180 of the Health and Safety Code.
Mosquito abatement and vector control districts authorized under Chapter 1 (commencing with Section 2000) of Division 3 of the Health and Safety Code.
CHAPTER 5. Quarantine Regulations and InspectionStations [5301. - 5353.]
ARTICLE 1. General Provisions [5301. - 5312.]
The director may establish, maintain, and enforce such quarantine regulations as he deems necessary to protect the agricultural industry of this state from pests. The regulations may establish a quarantine at the boundaries of this state or elsewhere within the state.
The director may make and enforce such regulations as he deems necessary to prevent any plant or thing which is, or is liable to be, infested or infected by, or which might act as a carrier of, any pest, from passing over any quarantine line which is established and proclaimed pursuant to this division.
All quarantine regulations which involve another state, territory, district, or foreign country shall be made by the director. The regulations shall be approved and proclaimed by the Governor, or by the director as the Governor’s designee.
The proclamation shall be signed in duplicate. The original shall be filed in the office of the Secretary of State and a copy in the office of the department before the regulation takes effect.
A quarantine shall not be established by one county, city, district, or other public agency, against another county, city, district, or public agency, on account of the existence of any pest, without the written consent of the director.
It is unlawful for any person to refuse to comply with any quarantine regulation which is established by the director pursuant to this division.
It is unlawful for any person to possess, propagate, plant, process, sell, or take any other action with regard to a plant or thing subject to a quarantine which has been imported or moved in violation of the quarantine.
Notwithstanding Section 5309, any violation of this section is a misdemeanor.
It is unlawful for any person, who is employed by any agency or institution that is supported or financed from public funds, willfully or knowingly to neglect or refuse to make a report to the commissioner of the county or to the director, or such person’s immediate superior for the purpose of having such report transmitted to the commissioner of the county or to the director, of the presence in this state of any pest, as defined in Section 5006, which is new to, or not widely distributed in, the area or locality in which the pest exists, if the presence of such pest has been determined as a result of investigation, research, survey, or inspection which is made in behalf of the employing agency or institution.
If there are any authorities or officers of the United States that are authorized to act with respect to any quarantine regulations that are established pursuant to this division, the director shall notify the authorities or officers and seek their cooperation as far as possible.
Any violation of this chapter by any person, or an agent of any person, is an infraction, punishable by a fine of not more than one thousand dollars ($1,000) for the first offense. For a second or subsequent offense within three years of a prior conviction of a violation of this chapter, the violation is punishable as a misdemeanor.
In addition to any other penalties prescribed in this division, any person who violates this division or any regulation adopted pursuant to this division is liable civilly in an amount not exceeding ten thousand dollars ($10,000) for each violation.
Upon a complaint by the director, the Attorney General may bring an action for civil penalties in any court of competent jurisdiction in this state against any person violating this division or any regulation adopted pursuant to this division.
Upon the failure of any person to comply with this division, the Attorney General, upon request of the director, or the county counsel upon request of the commissioner, as the case may be, shall petition the superior court for the issuance of a preliminary or permanent injunction, or both, as may be appropriate, restraining the person from continuing any activities in violation of this division. The court shall issue an order directing the person to appear before the court at a time and place certain and show cause why the injunction should not be issued. The court may grant the prohibitory or mandatory relief that may be warranted. The court may also issue the temporary relief that may be necessary to preserve the status of the parties until a hearing can be held.
Any funds recovered by the department pursuant to this section shall be deposited in the Department of Food and Agriculture Fund to cover costs related to the enforcement of this division when appropriated by the Legislature therefor.
In lieu of any civil action pursuant to Section 5310, except as provided in Article 5 (commencing with Section 5781) of Chapter 8, the secretary or the commissioner may levy a civil penalty against a person violating this division or any regulation adopted pursuant to this division in an amount not to exceed two thousand five hundred dollars ($2,500) for each violation.
Before a civil penalty is levied, the person charged with the violation shall receive notice of the nature of the violation and shall be given an opportunity to be heard. This shall include the right to review the evidence and a right to present evidence on his or her own behalf.
A review of the decision of the secretary to impose a penalty may be sought by the person against whom the penalty was levied within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
The person against whom a civil penalty is levied by a commissioner may appeal to the secretary within 10 days of the date of receiving notification of the penalty, as follows:
The appeal need not be formal, but it shall be in writing and signed by the appellant or his or her authorized agent, and shall state the grounds for the appeal.
Any party, at the time of filing the appeal or within 10 days thereafter, may present written evidence and a written argument to the secretary.
The secretary may grant oral arguments upon application made at the time written arguments are filed.
If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days prior to the date set therefor. This time requirement may be altered by an agreement between the secretary and the person appealing the penalty.
The secretary shall decide the appeal on any oral or written arguments, briefs, and evidence that he or she has received.
The secretary shall render a written decision within 45 days of the date of appeal or within 15 days of the date of oral arguments.
On an appeal pursuant to this section, the secretary may sustain, modify by reducing the amount of the penalty levied, or reverse the decision. A copy of the secretary’s decision shall be delivered or mailed to the appellant and the commissioner who levied the penalty, if this is the case.
Review of the decision of the secretary may be sought by the appellant pursuant to Section 1094.5 of the Code of Civil Procedure.
Any funds recovered by the commissioner pursuant to this section shall be deposited in the county general fund in the county in which the action is brought and shall be allocated to the commissioner to cover costs related to the enforcement of this division. Any funds recovered by the secretary pursuant to this section shall be deposited in the Department of Food and Agriculture Fund to cover costs related to the enforcement of this division.
After the exhaustion of the appeal and review procedures provided in Section 5311, the commissioner or his or her representative may file a certified copy of a final decision of the commissioner that directs the payment of a civil penalty and, if applicable, a copy of any decision of the secretary or his or her representative rendered on an appeal from the commissioner’s decision and a copy of any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. No fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section.
ARTICLE 2. Quarantine and Other Regulations for Pests Within the State [5321. - 5323.]
If the director receives information of the existence of any pest which is not generally distributed within this state, he shall thoroughly investigate the existence and probability of its spread, and the feasibility of its control or eradication.
The director may establish, maintain, and enforce quarantine, eradication, and such other regulations as are in his or her opinion necessary to circumscribe and exterminate or prevent the spread of any pest which is described in Section 5321.
This division and the regulations which are established pursuant to this division are of a statewide interest and concern and are intended to occupy the field. No local jurisdiction shall adopt ordinances, laws, or regulations which prevent, hinder, or delay the effect or application of this division or regulations established pursuant to this division. Regulations established pursuant to this division are not valid unless they are clearly consistent with a strict interpretation of this division and are necessary to effectuate the purpose of this division. The adoption of the regulations does not create any presumption of their necessity or validity.
ARTICLE 3. Plant Quarantine Inspection Stations [5341. - 5353.]
To prevent the introduction into, or the spread within this state, of pests, the director shall maintain at such places within this state as he deems necessary plant quarantine inspection stations for the purpose of inspecting all conveyances which might carry plants or other things which are, or are liable to be, infested or infected with any pest.
Every operator of a motor vehicle entering the state with a shipment of any agricultural commodity shall cause the vehicle and the shipment to be inspected, and shall obtain a certificate of inspection, at the plant quarantine inspection station nearest the point of entry into the state.
Failure to obtain the required certificate of inspection shall subject the operator of the vehicle and the registered owner of the vehicle, if a different person or legal entity, to separate civil penalties of not more than two thousand five hundred dollars ($2,500) for each violation. In determining the severity of the penalty to be imposed, the court shall consider any prior violations of the same nature within the preceding 24 months, the commodity being transported, and any evidence, including deviation from normal and usual routes, that the operator of the vehicle intentionally avoided inspection.
Inspection shall not be required when the operator of the vehicle would be required to travel a distance of 15 miles or more from normal and usual routes for the particular trip to obtain the required inspection and certification, or when weather conditions or road closures on normal and usual routes prevent travel to the nearest plant quarantine inspection station.
Violation of this section is a separate offense from violation of any other provision of this code and proceedings under this section shall not be deemed to prevent separate proceedings for any other offense.
Proceedings under this section may be brought by the secretary or, with the secretary’s concurrence, by the district attorney of the county in which the violation occurred. The civil penalty shall be awarded to the agency which brings the enforcement action for use by that agency in enforcing the provisions of this code.
The secretary may, by regulation or executive order, as the secretary deems advisable, permit exceptions for certain commodities, areas, and times consistent with the purposes of this division, patterns of local traffic near border areas, and availability of inspection stations.
Persons holding a valid permit to transport cattle pursuant to Section 21067 are exempt from this section.
Plant quarantine officers at plant quarantine inspection stations may ascertain the origin, quantity, and kinds of meat and meat products, poultry and poultry products, eggs, and livestock transported into or out of this state through the stations. The operator of any vehicle which is transporting any such commodity into or out of the state through any plant quarantine inspection station shall stop and give this information upon request to a plant quarantine officer at the plant quarantine inspection station. Such request may be by a sign which is openly displayed at the station or by any other means which is deemed by the director as effective.
The director may accept, on behalf of the state, donations of money from any person to defray the costs of the department under this section. Any such money shall be paid into the State Treasury and credited to the Department of Agriculture Fund. The director may limit expenditures under this section relating to livestock to the amounts so donated for this purpose, and shall limit expenditures under this section relating to poultry and poultry products and eggs to the amounts so donated for this purpose.
The director shall cause conspicuous signs to be erected at or near each inspection station which disclose the existence of the station.
At any inspection station maintained at or near the California border by the director pursuant to Section 5341, the following sign shall be conspicuously posted in block letters not less than four inches in height:
“NOTICE: IF YOU ARE A CALIFORNIA RESIDENT, THE FEDERAL GUN CONTROL ACT MAY PROHIBIT YOU FROM BRINGING WITH YOU INTO THIS STATE FIREARMS THAT YOU ACQUIRED OUTSIDE OF THIS STATE.
IN ADDITION, IF YOU ARE A NEW CALIFORNIA RESIDENT, STATE LAW REGULATES YOUR BRINGING INTO CALIFORNIA HANDGUNS AND OTHER DESIGNATED FIREARMS AND MANDATES THAT SPECIFIC PROCEDURES BE FOLLOWED.
IF YOU HAVE ANY QUESTIONS ABOUT THE PROCEDURES TO BE FOLLOWED IN BRINGING FIREARMS INTO CALIFORNIA OR TRANSFERRING FIREARMS WITHIN CALIFORNIA, YOU SHOULD CONTACT THE CALIFORNIA DEPARTMENT OF JUSTICE OR A LOCAL CALIFORNIA LAW ENFORCEMENT AGENCY.”
It is unlawful for the operator of any vehicle to fail to stop the vehicle at an inspection station or to willfully avoid an inspection station. It is also unlawful for the operator to fail to stop either upon demand of a clearly identified plant quarantine officer or upon demand of an officer of the California Highway Patrol, when the officer orders the operator to stop for the purpose of determining whether any quarantine which is established pursuant to any provision of this division is being violated.
Notwithstanding Section 5309, a violation of this section is a misdemeanor and grounds for the vehicle to be stopped for inspection.
It is unlawful for any person to operate upon any highway in this state any vehicle which, in violation of Section 5344, was not stopped as required by that section, if the person who is operating such vehicle knows of such violation of Section 5344. The violation of this section continues unless and until one of the following occurs:
A period of 24 hours has elapsed following the violation of Section 5344.
The operator who violated Section 5344 has been apprehended and the vehicle which is involved has been inspected and released from quarantine by any authorized state plant quarantine officer. An operator who is so apprehended does not violate this section by reason of operating the vehicle en route to the closest inspection station immediately following his apprehension for violation of Section 5344, nor does any other person, who operates the vehicle for such purpose, violate this section.
It is unlawful for any person to conceal any plant from any plant quarantine officer or to fail to present it or any quarantined article for inspection at the request of such officer.
It is unlawful to move into California any outdoor household article from a federally regulated gypsy moth area unless accompanied by certification that the article has been inspected and does not contain gypsy moth egg masses. The director may adopt regulations to specify the type of certification and inspection required as necessary to carry out this section.
Plant quarantine officers, and officers of the California Highway Patrol, are authorized to cite persons for any violation of this article.
It is unlawful for the operator of a vehicle to intentionally route the vehicle and travel on that route in order to prevent the vehicle from passing through a plant quarantine inspection station.
Notwithstanding Section 5309, a violation of this section is a misdemeanor.
The director shall establish a program for the inspection of conveyances entering California through airport and maritime facilities to prevent the introduction into, or the spread within, this state of pests.
The director shall maintain plant quarantine inspection stations at points of entry at airports and marine terminals pursuant to Section 5341.
The director shall establish a program for the dissemination of information at airports and marine terminals in order to provide the users of the facilities information regarding the pest control and quarantine requirements of this state.
The director may authorize the inspection and certification of conveyances outside the state if the director finds that the inspection and certification meets the standards established for in-state inspection and certification programs and, for that purpose, may enter into any agreements necessary with any other state or the federal government. The director may provide that conveyances inspected and certified pursuant to this subdivision are not required to be inspected at California airports or marine terminals.
The functions of this section shall be performed by the Division of Plant Industry, Pest Exclusion Branch, of the department, and the duties shall be performed by plant quarantine officers.
The director may establish a task force comprised of representatives of the following industries:
Air common carriers.
Port authorities.
Maritime common carriers.
Other industries that the director deems appropriate.
The goal of this task force shall be to develop and implement a program of preventive measures to reduce the likelihood that pests will be transported into the state aboard aircraft or vessels. The program may include, but is not limited to:
Educational materials to warn passengers of the special quarantine and pest exclusion rules and regulations that apply in California.
Recommendations of appropriate methods for distributing those educational materials to passengers.
Special training for employees of carriers who handle cargo and baggage that may contain pests.
Special training and educational materials aimed at enlisting the assistance of passenger ticket agents in educating potential passengers of the special pest exclusion measures in effect at California points of entry.
Public announcements to passengers enroute to California regarding the rules and regulations related to transporting pests into the state.
The program shall include methods for determining the effectiveness of the preventative measures developed pursuant to this section.
The task force shall also develop a program for the purposes of seeking federal funds sufficient to maintain airport pest inspection activities at the same levels as the level maintained during the 1991–92 fiscal year.
The director shall levy a service charge, to the extent authorized by subsection (b) of Section 1513 of Title 49 of the United States Code, based on the schedule established pursuant to Section 5353, on each air carrier or foreign air carrier engaged in foreign air commerce, as those terms are defined by Section 5353, for the use of airport facilities for plant and animal pest inspection, quarantine, and eradication.
For the purposes of this section, “airport facilities” means those airports owned or operated by any public entity.
To the extent permitted by federal law, the director shall levy a fee on commercial marine carriers, based on the schedule established pursuant to Section 5353, for the use of marine terminal facilities for plant and animal pest inspection, quarantine, and eradication. The director shall identify and establish a list of countries which the director has reason to believe are potential sources of exotic plant and animal pests.
Each air carrier or foreign air carrier engaged in foreign air commerce which carries animals or plants or other materials which are, or are likely to be, infected or infested with any pest shall pay a charge of eighty-five dollars ($85) to the director upon the initial landing in this state of each flight of the carrier which originates outside the United States.
Each commercial marine carrier engaged in foreign commerce which carries animals or plants or other materials which are, or are likely to be, infected or infested with any pest shall pay a fee of two hundred dollars ($200) to the director upon the initial arrival in this state of the carrier on a voyage which originated outside the United States from a country identified and listed by the director pursuant to Section 5352, or which made an intermediate stop on that voyage in a country identified and listed by the director pursuant to Section 5352.
Each such carrier shall maintain records, which shall be subject to inspection by the director, and pay the charges and fees prescribed by this section in accordance with a procedure adopted by the director, by regulation.
Each such carrier who fails to pay the charges and fees required pursuant to this section and the regulations adopted pursuant to this section is subject to a penalty of 2 percent on the amount of the unpaid charge or fee for each month, or portion thereof, that the charges or fees are not paid.
The charges and fees collected pursuant to this section shall be deposited in the Department of Food and Agriculture Fund and shall be used by the director for the purposes of this section and Section 5350.
The director may, by regulation, increase or decrease any of the charges or fees prescribed in subdivision (a) or (b) upon determining that the revenue received is inadequate or in excess of the amount needed to conduct an effective inspection program. The maximum adjusted charge or fee shall not exceed three times the amount of the charge or fee specified in subdivision (a) or (b).
The director may contract with federal and state agencies and with county agricultural commissioners to assist the director in carrying out the purposes of this section and Section 5350.
The regulations adopted by the director pursuant to this section shall be deemed to relate to rates for purposes of Section 11343 of the Government Code and are not subject to review, approval, or disapproval by the Office of Administrative Law pursuant to Article 6 (commencing with Section 11349) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government Code.
“Air carrier,” “foreign air carrier,” and “foreign air commerce”, as used in this section, and Section 5351 shall have the same meaning as specified in subsections (3), (22), and (23), respectively, of Section 1301 of Title 49 of the United States Code.
CHAPTER 6. Abatement, Generally [5401. - 5494.]
ARTICLE 1. Authority [5401. - 5405.]
Any premises, plants, conveyances or things which are infected or infested with any pest, or premises where any pest is found, are a public nuisance, and shall be prosecuted as such in all actions and proceedings. All remedies which are given by law for the prevention and abatement of a nuisance apply to such a public nuisance.
It is unlawful for any person to maintain such a public nuisance. The remedies which are provided by this article are in addition to any other remedy by way of abatement which is provided in this division.
If, after service of notice pursuant to this chapter a public nuisance is not abated within the time which is specified in the notice, the commissioner shall abate the nuisance by eradicating, controlling, or destroying the pest.
If, after service of the notice pursuant to this chapter, the commissioner determines that the nuisance constitutes an immediate hazard to adjoining or nearby property, and that great or irreparable injury would result from delay until expiration of the time required by law for constructive notice, he or she may forthwith abate the nuisance by eradicating, controlling, or destroying the pest.
For purposes of this section, cotton, which is being produced in violation of a host-free period declared pursuant to Article 5 (commencing with Section 5781) of Chapter 8 of this part, is a nuisance.
The commissioner shall take summary abatement action against any cotton found in violation of a planting date established as part of a host-free period. The person producing the cotton shall be given not more than 48 hours to commence abatement of the nuisance and shall be given not more than five days to complete abatement.
If the person producing the cotton fails to commence and complete abatement within the time specified by the commissioner pursuant to subdivision (c), the commissioner shall abate the nuisance by disking to a depth of six inches. The person who produced the cotton shall pay 150% of all costs associated with the commissioner’s abatement of the nuisance.
The commissioner may request that the district attorney assist him or her in expediting summary abatements pursuant to this section.
The board of supervisors of any county may authorize the commissioner to contract with any state or federal agency, public corporation for municipal purposes, or person that owns, controls, or administers within the county any property or premises which are infected or infested with any pest, to eradicate, destroy, or control it on such property or premises. The contract shall not impose any cost or obligation on the county, unless the imposition of the cost or obligation upon the county is authorized by the board of supervisors.
ARTICLE 2. Notice and Expense of Abatement Generally [5421. - 5436.]
If the commissioner finds, after inspection, that any premises, plant, conveyance, or thing in his jurisdiction is infected or infested with any pest, he may in writing notify the record owner or person in charge or possession of the premises, plant, conveyance, or thing, that it is infected or infested with a pest. He may, to his satisfaction, require the person to eradicate, destroy, or control, the pest within the time which is specified in the notice.
The notice may be served upon the record owner or person having charge or possession of the premises, plant, conveyance, or thing infected or infested with the pest or upon the agent of either, in the same manner as a summons in a civil action if such persons can be found within the county.
If no person upon whom service may be had, can, after diligent search be found within the county, the notice may be served by posting copies of it in three conspicuous places upon the infected or infested property or premises, and by mailing a copy of it to the owner at his last known address.
If the address of the owner is not known, and cannot be ascertained by the exercise of reasonable diligence, a copy of the notice shall be mailed to him at the county seat of the county in which the property is situated.
The commissioner may record a copy of any notice that is served and may mail a copy of the notice to the person that appears of record to be the owner of any encumbrance on the property, at his last known address.
If the address of the encumbrancer is unknown to the commissioner, he shall state in the copy of the notice that the address is unknown to him and shall mail the copy, addressed to the encumbrancer at the county seat of the county in which the property is situated.
If the eradication, control, or destruction of the pest is undertaken by the commissioner pursuant to Section 5403, the notice shall be recorded.
The recorded notice is, from the date of recording, a lien against the property which is described in the notice for the expense that is incurred by the county subsequent to the recordation of the notice in the abatement of the nuisance.
The expense of the abatement by the commissioner is a county charge which is payable out of county funds.
If the notice to abate is recorded before the commissioner incurs the expense of abatement, the amount which is incurred or expended by the county in the abatement is a lien on the land against which the expense is chargeable. In a case pursuant to Section 5494, the total expense shall be prorated and chargeable against each parcel of land in proportion to the acreage of such parcel which is served by water from the canal or ditch that is involved.
A notice which sets forth the amount expended shall be recorded within 30 days after the date of payment of the last item of expense of the abatement by the county. The amount is a lien from the date of the recording of the notice of abatement pursuant to Section 5427.
If a copy of the notice to abate a public nuisance, as described in Section 5401, is recorded and a copy is served upon or mailed to the holder of any encumbrance of record pursuant to this article, the lien is superior to all encumbrances, existing and future, except liens for taxes and assessments.
If the sum which is secured by lien is not repaid to the county within 80 days from the recording of the amount of the lien, there shall be added to the sum a penalty of 15 percent. The penalty shall also be secured by the lien.
Except as provided in Article 3 (commencing with Section 5461) of this chapter, the district attorney of the county which makes payment of the abatement expense shall, within 120 days after the notice which is required by Section 5431 is recorded, commence in the name and for the benefit of such county, an action to foreclose the lien.
If, after foreclosure, the property is sold, enough of the proceeds shall be paid into the treasury of the county which forecloses the lien as shall satisfy the lien, penalty, and costs.
If there is any surplus, it shall be paid to the owner of the property, if he is known. If the owner of the property is not known, the surplus shall be paid into the court for his use at such time as he is ascertained.
If no action to foreclose is commenced within 120 days subsequent to the recordation of the notice which is required by Section 5431, the lien ceases to exist.
ARTICLE 3. Notice and Expense of Abatement on Tax-Deeded Property [5461. - 5464.]
If any pest is found to exist upon any property which has been deeded to the state for nonpayment of taxes, the notice of abatement shall be served by recording and mailing a copy of the notice to the State Controller, and either by personally serving or by mailing a copy of it, in the manner provided in Sections 5425 to 5428, inclusive, to the last owner of record prior to the deeding of the property to the state.
If no action to foreclose is commenced within 120 days subsequent to the redemption or sale of the property, the lien ceases to exist.
If the property is acquired by the state, or by any municipal corporation or political subdivision, and the right of redemption is terminated, the lien terminates at the time the right of redemption is terminated.
ARTICLE 4. Notice and Expense of Abatement on Other Public Property [5491. - 5494.]
If any pest is found to exist in any public park or along any street, highway, or other property which is subject to the control of a city or county, the notice of abatement shall be served on the chairman of the governing body of the city or county. If the eradication, control, or destruction of the pest is performed by the commissioner, the cost of the eradication, control, or destruction is a city or county charge, as the case may be, and shall be paid from the general fund of the city or county.
If any pest is found to exist in any park or along any street, highway, right-of-way, or other property which is subject to the control of any agency of the state, the director, upon receiving a report of the existence of the pest from the commissioner, shall notify the agency. He may instruct the commissioner to serve the notice upon the director or other executive officer of the agency. If the eradication, control, or destruction of the pest is performed by the commissioner, the cost of the eradication, control, or destruction is a charge against, and shall be paid from, the maintenance fund or from other funds for the support of the agency.
This section applies to a state highway right-of-way if any pest of the same kind has been, or is being, subjected to control, destruction, or eradication on other private or public property in the immediate vicinity of the right-of-way, either at the direction of the commissioner or voluntarily by the owner of such adjacent property.
If any pest is found to exist upon any property which is subject to the control of any irrigation, drainage, flood control, reclamation, or levee district, or other political subdivision of the state, the notice of abatement shall be served upon the chairman of the governing body of the district or political subdivision. If the chairman is absent from the county, or for any reason cannot be served, the notice shall be served upon some other member of the governing body. If the eradication, control, or destruction of the pests upon the property is performed by the commissioner, the cost of the eradication, control, or destruction is a legal charge and shall be paid from the general maintenance or operating fund, as the case may be, of the district or political subdivision.
If any pest is found to exist in or on any irrigation canal or ditch, including its lateral banks, which is not subject to the control of any district or political subdivision of the state, the notice of abatement shall be served upon all users of water from the irrigation canal or ditch that is described in the notice.
CHAPTER 6.5. Roadside Vegetation Control [5501. - 5509.]
This chapter shall be known and may be cited as the Property Owners’ Roadside Vegetation Control Information Act of 1991.
The following definitions shall govern the construction of this chapter:
“Agency” means an agency of state government that has responsibility for roadside vegetation control operations on, or along, roadways.
“Pesticide” is defined in Section 12753.
“Property owner” means an owner, lessee, or tenant of real property that is adjacent or contiguous to a roadway over which an agency has responsibility for roadside vegetation control.
“Roadside” means the land adjacent to, or dividing the lanes of traffic of, a roadway.
“Roadway” means any highway, superhighway, expressway, street, road, lane, or other public thoroughfare.
The Legislature hereby finds and declares all of the following:
The unannounced and poorly coordinated use of pesticides to control roadside vegetation has too frequently resulted in damage to adjacent or contiguous private property. In some instances, this activity has caused growers to needlessly suffer economic loss or damage to their crops.
Property owners have a right to know beforehand the manner in which state government intends to control the roadside vegetation adjacent or contiguous to their property.
It is in the public interest to establish a voluntary mechanism by which private property owners may meet and confer with representatives of state government to enter into mutually acceptable voluntary agreements to promote coordinated programs for roadside vegetation control, and thereby minimize damage to adjacent and contiguous property.
Mutually acceptable agreements may include, but are not limited to, provisions whereby the property owner assumes responsibility for roadside vegetation control in a manner which is at least as effective as that proposed by state government, the use of mechanical means of vegetation control, the use of a combination of pesticide and mechanical means of control, a delay in the application of a pesticide, or the use of different pesticides.
Private property owners and representatives of state government are encouraged to voluntarily develop creative and innovative means to accomplish the goals and objectives of this chapter.
An agency shall promptly provide any or all of the following information to a property owner who so requests:
The date on which the agency is scheduled, or planning, to conduct roadside vegetation control and the method or methods the agency is planning to use in the roadside vegetation control operation on, or along, the part of the roadway that is adjacent or contiguous to his or her property.
The frequency with which the agency is scheduled, or is planning, to conduct a roadside vegetation control operation on, or along, the part of the roadway adjacent or contiguous to his or her property.
Any other relevant information in the possession of the agency that may be of interest to the property owner of the property adjacent or contiguous to the roadside where the vegetation control operation is to be conducted.
The agency shall not conduct a roadside vegetation control operation on that portion of the roadway for which a property owner has made a request for information pursuant to Section 5504, until both of the conditions set forth in subdivisions (a) and (b) have been met or unless subdivision (c) applies:
The agency provides the property owner the requested information pursuant to Section 5504.
The property owner did not request a meeting with the representatives of the agency within 30 days after he or she received the information or, if so requested, the meeting is held in accordance with Section 5506.
The agency provided the property owner the requested information pursuant to Section 5504, the property owner requested a meeting to be held in accordance with Section 5506, and the agency, having made a good faith effort to accommodate the property owner in scheduling and conducting a meeting, is unable to reach an agreement with the property owner on a reasonable meeting time and place within 30 days of the initial request for a meeting.
Within 30 days of receipt of the information required to be provided pursuant to Section 5504, the property owner may request a meeting with representatives of the agency to discuss the agency’s proposed schedule for, or method of, roadside vegetation control, or both the schedule and method to be used on, or along, the roadway adjacent or contiguous to his or her property.
Upon receipt of a request for a meeting pursuant to this section, the agency shall meet with the property owner at a mutually agreeable time and location.
The purpose of the meeting shall be to develop and adopt the following:
A schedule for the roadside vegetation control operation .
A method of roadside vegetation control that eliminates, or minimizes, damage to the property owner’s property while preserving the ability of the agency to conduct an effective roadside vegetation control program.
The agency shall consider and, if the facts presented to the agency warrant further action in order to carry out the objectives of this chapter, do any or all of the following:
Use different pesticides, or different combinations or concentrations of pesticides.
Enter into an agreement with the property owner whereby the property owner agrees to assume the responsibility, in whole or in part, of roadside vegetation control by any lawful method of control, if the agency determines that the property owner’s method is as effective as the method proposed to be used by the agency.
The objective of this section is to establish a procedure for property owners and representatives of agencies to meet and confer in order to develop and adopt mutually acceptable times for, and methods of, well-coordinated and effective roadside vegetation control operations, and thereby minimize damage to adjacent or contiguous property.
If agreement cannot be reached between the property owner and the agency, the agency shall maintain responsibility for decisions affecting roadside vegetation control in the disputed area.
If the property owner does not carry out the terms of any agreement entered into pursuant to paragraph (4) of subdivision (d) of Section 5506, as determined by the agency, the agency may immediately conduct the roadside vegetation control in accordance with the agency’s schedule and method of roadside vegetation control.
This chapter shall be liberally construed to accomplish its purposes and objectives.
Any property owner affected by the decision of the agency made pursuant to this chapter may bring an action for writ of mandamus challenging the decision pursuant to Section 1085 of the Code of Civil Procedure. A property owner may also request a court to issue an injunction or order any other action to restrain any violation of this chapter.
CHAPTER 7. Abatement of Neglected or Abandoned Crops [5551. - 5648.]
ARTICLE 1. General Provisions [5551. - 5555.]
Any neglected or abandoned plant or crop is a public nuisance in any of the following circumstances:
It is a menace to the agriculture of the county, district, or vicinity because of the existence of any pest, in or on it.
It is a menace to the agriculture of the county, district, or vicinity because of the existence of any other condition than the condition described in subdivision (a).
It is a host plant of, or provides a favorable or likely harbor for, any pest.
Any cotton plant which is uncultivated or that is left from a previous season is presumed to harbor pests and as such is a public nuisance. This presumption is a presumption affecting the burden of producing evidence. If any such cotton plant is not destroyed in the manner established by regulation of the director, by March 1st of any year or by such earlier date as shall be proclaimed by the director as the beginning of a host-free period pursuant to Section 5781 of this code, it is subject anytime thereafter to all remedies which are or may be given for the prevention or abatement of nuisances.
It is unlawful for any person to maintain any neglected or abandoned plant or crop which is a public nuisance.
All remedies for the prevention or abatement of nuisances apply to any such nuisance.
If, after service of the notice pursuant to Article 1.5 (commencing with Section 5561) the nuisance is not abated within the time prescribed in the notice or such time as may be mutually agreed upon by the commissioner and the record owner or person having charge or possession of the property, the commissioner shall proceed under the provisions of Article 2 (commencing with Section 5571).
ARTICLE 1.5. Notice [5561. - 5564.]
The commissioner shall, in writing, notify the record owner or person in charge of any property having an abandoned or neglected plant or crop which the commissioner has found to be a public nuisance, of the need to remove or destroy the neglected or abandoned plant or crop. The notice required by this section shall be made by personal service or by certified mail to the address shown on the last equalized assessment roll of the county, and by posting copies of it in three conspicuous places on the property.
The notice required by this article shall set forth all of the following:
A description of the property.
The name of the owner or person who is in charge or in possession of the property.
The fact that the commissioner’s findings have determined that the removal or destruction of the neglected or abandoned plant or crop provides the best means of eliminating the menace to the agriculture of the county, district, or vicinity.
That all costs incurred by the county in the detection of the nuisance and proceedings in the abatement of the nuisance shall be charged to the owner or established as a lien on the property.
The commissioner shall, in addition to the notice required by this article, advise the owner that, unless the abandoned or neglected plant or crop is removed or destroyed within 60 days, or less than 60 days if required by county ordinance, after the date the notice was served or mailed, or by such date as may be mutually agreed upon by the commissioner and the owner, the commissioner will report the existence of the nuisance to the district attorney or to the county counsel of the county with a request that an action be filed in the superior court praying for an order to remove or destroy the neglected or abandoned crop as provided for in Article 2 (commencing with Section 5571).
This article shall not prevent the commissioner from proceeding under any other provision of law for the purpose of abating a nuisance that constitutes an immediate hazard to adjoining or nearby property.
ARTICLE 2. Institution of Proceedings [5571. - 5581.]
If the commissioner of any county determines by inspection that there is a condition which constitutes a nuisance, as defined in Section 5551 or 5552, on any property or premises within his jurisdiction, he shall make a report of his inspection to the district attorney or to the county counsel if the board of supervisors has authorized the county counsel pursuant to Section 26528.5 of the Government Code to file the petition prepared pursuant to this article. The commissioner in the report shall do all of the following:
State that the property owner has been notified.
Describe the property upon which the nuisance exists.
Name the pest or other condition which in his opinion is dangerous to the agriculture of the county, district, or vicinity.
State, if his findings justify such a statement, that the removal or destruction of the neglected or abandoned plant or crop will provide the best means for the elimination of the menace to the agriculture of the county, district, or vicinity.
Whenever the district attorney receives a report from the commissioner, he shall, on the basis of the report, prepare a petition to the superior court of the county praying for an order to remove or destroy the neglected or abandoned plant or crop.
The petition shall set forth all of the following:
A description of the property.
The name of the owner or person that is in charge or possession of the property.
The name of the pest, or other condition which is a menace to the agriculture of the county, district, or vicinity.
Upon the filing of the petition, the court shall issue a citation which requires that the owner or person that is in charge or in possession of the property appear at a time and place which is specified to show cause why the neglected or abandoned plant or crop should not be removed or destroyed.
A copy of the citation, together with a copy of the petition, shall be served upon the record owner or upon the person that is in charge or in possession of the property, or upon an agent of either, not less than 10 days before the date which is specified in the citation.
A copy of the citation, together with a copy of the petition, may also be served upon any person that appears of record to be the owner of any encumbrance upon, or interest in, the property.
If the property upon which the neglected or abandoned plant or crop exists has been deeded to the state for nonpayment of taxes, a copy of the citation, together with a copy of the petition, shall be mailed to the State Controller, and a copy of each shall be served upon the last owner of record prior to the deeding of the property to the state. A notice of the pendency of the action shall be recorded pursuant to Section 409 of the Code of Civil Procedure.
The service of the petition and citation may be personal, by delivery to the party on whom service is required to be made.
If the party upon whom service is required to be made resides within the county, service may be made by leaving a copy of the citation, together with a copy of the petition, at the residence of the party between the hours of eight in the morning and six in the evening, with some person who is not less than 18 years of age. If at the time of attempted service between such hours, no such person can be found at the residence of the party, service may be made by mail.
If the party upon whom service is required to be made does not reside within the county, service of the petition and citation may be made by mail, if he resides or has his office at a place where there is a delivery service by mail. If there is no delivery service by mail, or if his residence is not known, service may be made by posting a copy of the citation, together with a copy of the petition, in a conspicuous place on the property on which the neglected or abandoned plant or crop is situated, at least 20 days before the date specified in the citation.
Service of the petition and citation by mail shall be made pursuant to the Code of Civil Procedure.
ARTICLE 3. Hearing and Order [5601. - 5605.]
On the day on which the citation is made returnable, the court shall hear the cause and decide whether or not the neglected or abandoned plant or crop shall be destroyed or removed. The hearing shall have precedence over all matters other than injunctions, older matters of the same character, and matters which are otherwise given precedence by law.
If the court is satisfied that the conditions which are set forth in the petition exist on the property and that the removal or destruction of the neglected or abandoned plant or crop is necessary and essential for the welfare of the agriculture of the county, district, or vicinity, it shall order the removal or destruction, within a certain time, of the neglected or abandoned plant or crop which is located upon the property described in the order.
The order to remove or destroy the neglected or abandoned plant or crop shall be served by the commissioner, or by any person who is deputized by him for that purpose, as follows:
If the owner of the property can, after due diligence, be found within the county, upon the owner.
If the owner cannot, after due diligence, be found within the county, upon the person that is in charge or possession of the property.
If neither the owner or person that is in charge or possession of the property can, after due diligence, be found within the county, by posting in a conspicuous place upon the property.
If the order is not complied with within the time which is specified in the order, the commissioner shall cause the removal or destruction of the neglected or abandoned plant or crop which is mentioned in the order.
Any person that fails to comply with any lawful order of the court which is made and served pursuant to the provisions of this article and Article 2 (commencing with Section 5571) of this chapter is in contempt of court and shall be punished accordingly. The punishment is in addition to any other penalty which is provided for in this code.
ARTICLE 4. Expense of Abatement [5631. - 5645.]
From the date of the recording, the land which is described in the notice is subject to a lien for any expense which is incurred by the county subsequent to the recording of the notice in the abatement of the nuisance which is referred to in the notice.
The commissioner shall keep an account of the cost of the removal or destruction and shall render an itemized report of the cost to the board of supervisors.
The expense of the removal or destruction is a county charge which is payable out of county funds.
A notice which sets forth the amount which has been expended for the removal or destruction of any neglected or abandoned plant or crop which is a public nuisance, as defined in Section 5551 or 5552, shall be recorded within 30 days after the date of payment of the last item of expense incurred by the county, and such amount is a lien from the date of recording of the notice of lien.
The lien is superior to all encumbrances, existing and future, except liens for taxes and assessments, if a copy of the notice of lien is recorded and a copy is served upon or mailed to the holder of any encumbrance of record, at the last known address of the encumbrancer.
If the address of the encumbrancer is unknown to the commissioner, he shall state in the copy of the notice that the address is unknown to him and shall mail the copy addressed to the encumbracer at the county seat of the county in which the property is situated.
If the sum which is secured by the lien is not repaid to the county within 80 days from the recording of the amount of the lien, there shall be added to it a penalty of 15 percent. The penalties shall also be secured by the lien.
Except as provided in Section 5643, the district attorney of the county which makes the payment for the expense of eradication or destruction shall, within 120 days after the lien is recorded, commence in the name and for the benefit of such county an action to foreclose the lien.
If, after foreclosure the property is sold, enough of the proceeds shall be paid into the treasury of the county which forecloses the lien as shall satisfy the lien, penalty and costs.
If there is any surplus, it shall be paid to the owner of the property, if he is known. If the owner of the property is not known, the surplus shall be paid into the court for his use at such time as he is ascertained.
If no action to foreclose is commenced within 120 days subsequent to the recordation of the notice of lien, the lien ceases to exist.
If the expense of removal or destruction of any abandoned plant or crop becomes a lien on property which has been deeded to the state for nonpayment of taxes, as provided in Sections 5635 to 5637, inclusive, and the property is redeemed or sold to a private person at a tax sale, the action to foreclose the lien shall be commenced within 120 days after the redemption or sale of the property.
If no action to foreclose is commenced within 120 days subsequent to the redemption or sale of the property, the lien ceases to exist.
If the property is acquired by the state, or by any municipal corporation or political subdivision, and the right of redemption is terminated, the lien terminates at the time the right of redemption is terminated.
ARTICLE 5. Civil Penalties [5646. - 5648.]
For purposes of this article, all of the following definitions apply:
“Good faith action” means a diligent and honest effort to abate the nuisance identified in a notice provided by the agricultural commissioner, as determined by a reasonable person.
“Pest” has the same meaning as defined in Section 5006.
“Pest” does not include a beneficial organism that is used as a biological control agent or a conservation practice standard or an on-farm management practice, including a standard or practice identified by the Natural Resources Conservation Service of the United States Department of Agriculture’s Field Office Technical Guide or through the Healthy Soils Program, established pursuant to Section 569.
In lieu of imposing a lien pursuant to Article 4 (commencing with Section 5631), a commissioner may levy a civil penalty against a person who violates Section 5553 if the violation constitutes a pest-related nuisance to an adjoining or nearby property and the violation results in economic or ecological damage or would result in economic or ecological damage if the pest-related nuisance is not abated. The civil penalty shall be in an amount of up to five hundred dollars ($500), based on the severity of the nuisance and the person’s ability to pay, for each acre of property found to be in violation of Section 5553, as described in this subdivision.
A minimum of 30 days before a civil penalty is levied pursuant to subdivision (a), the person charged with a violation shall receive notice of the nature of the violation and shall be given an opportunity to be heard. This shall include the right to review the evidence and the right to present evidence on their own behalf.
The notice shall include the internet website of the University of California Statewide Integrated Pest Management Program.
Upon service of the notice, the commissioner shall refer the person charged with the violation to the nearest University of California Cooperative Extension service office.
If the person charged with the violation cannot, after a reasonable search, be found within the county, the notice shall be served by posting copies of it in three conspicuous places upon the property or premises or by mailing a copy of the notice to the owner of the property or premises at their last known address.
The notice shall include, either within the notice or in a separate document that accompanies the notice, a statement that reads: “This is a notice of a violation of Section 5553 of the California Food and Agricultural Code, relating to maintaining a public nuisance. This notice of a violation has been issued by your county’s agricultural commissioner. A party may appeal this notice of a violation pursuant to Section 5311 of the California Food and Agricultural Code. For more information or assistance, please contact their office. Do not ignore this notice.”
The statement described in subparagraph (A) shall be in both English and in any other language that over 10 percent of the persons residing within the county solely speak.
If the person charged with the violation takes a good faith action to rectify the violation within 30 days of receiving notice pursuant to subdivision (b), the person shall not be liable for a civil penalty pursuant to subdivision (a).
If the person charged with the violation does not take a good faith action to rectify the violation within 45 days from the issuance of a civil penalty pursuant to subdivision (a), the commissioner may increase the previously issued civil penalty of up to one thousand dollars ($1,000), based on the severity of the nuisance and the person’s ability to pay, for each acre of property found to be in violation of Section 5553, as described in subdivision (a).
For purposes of this article, none of the following constitute sole evidence of a violation of Section 5553:
The use or presence of a biological control or beneficial organism.
The use of a conservation practice standard, identified by the Natural Resources Conservation Service of the United States Department of Agriculture’s Field Office Technical Guide, or an on-farm management practice, identified through the Healthy Soils Program, established pursuant to Section 569.
Subparagraph (A) does not limit a commissioner’s authority to abate a pest that is harbored by a neglected or abandoned plant or crop.
Subdivision (d) of Section 5311 shall apply to any civil penalty levied pursuant to this article.
Any moneys recovered by the commissioner pursuant to this article shall be deposited into the county general fund in the county in which the action is brought and shall be allocated to the commissioner to cover costs related to the enforcement of this division.
This article shall remain in effect only until January 1, 2035, and as of that date is repealed.
CHAPTER 8. Special Quarantine, Control, and Abatement Methods [5701. - 5852.]
ARTICLE 1. Hold Notices on Infested and Nearby Properties [5701. - 5705.]
If any pest exists on any premises, the director or the commissioner may hold any plant or other host or possible carrier which is, or may be, capable of disseminating or carrying the pest. The director or the commissioner also may hold the plants, other hosts, or other possible carriers on any premises within five miles of the premises on which the pest was found to exist. The director or commissioner shall notify the owner of the plant or other host or possible carrier, or his or her agent, of this action, and the issuance of any shipping permit or nursery stock certificate with respect to the plant or other host or possible carrier shall be refused and any such permit or certificate which has been previously issued shall be revoked.
The distance from the premises at which a pest is found that the director or commissioner may hold plants, other hosts, or other possible carriers shall be the maximum distance that the director or commissioner determines the pest is likely to travel, but not to exceed five miles.
If, in the opinion of the director or commissioner, the plant or other host or possible carrier is not infested or infected with the pest, or has been disinfected or cleaned so as to eradicate or control the pest, the director or commissioner shall in writing release it or issue the shipping permit or nursery stock certificate as the case may be.
This article does not affect any other authority which is granted to a commissioner by Chapter 3 (commencing with Section 6501), Part 2 of this division.
It is unlawful for any person to move any plant or other host or possible carrier from the premises on which a hold notice has been issued, except under the written permission of the director or commissioner and in accordance with the conditions which are stated in the written permission.
The director or commissioner may enter into compliance agreements with any person which provide for the movement of hosts or other possible carriers of any pest from one area of the state to another. These agreements shall establish the treatment, harvesting, packing, and handling requirements that may be necessary to assure that the hosts or carriers are not infested.
Violation of the treatment, harvesting, packing, or handling terms of a compliance agreement is unlawful.
Any person who violates treatment, harvesting, packing, or handling terms in an agreement is also liable civilly in an amount not exceeding ten thousand dollars ($10,000). This remedy is in addition to, and does not supersede or limit, any and all other remedies, civil or criminal, that otherwise are available to the state.
Any funds recovered by the department pursuant to this section shall be deposited in the Department of Food and Agriculture Fund for use, upon appropriation by the Legislature, to cover costs related to the enforcement of this division.
ARTICLE 2. Standards of Cleanliness [5721. - 5723.]
If the director by regulation designates any plant, appliance, or other thing as liable to be infected or infested with any pest, and provides for notifying the commissioner of its arrival as required by Article 1 (commencing with Section 6501), Chapter 3, Part 2 of this division, he may include in the regulations standards of cleanliness for the plant, appliance, or other thing and provide for the certification by the commissioner of the county of origin of shipment that it conforms to the standards of cleanliness. The regulations may provide for the qualification of certain counties or certain areas where in the opinion of the director the standards of cleanliness are maintained in respect to all shipments of the designated plant, appliance, or thing. The regulations may also provide for shipments which originate in areas that are so qualified.
The commissioner of the county of destination may waive the notification and holding for inspection of any shipment which bears a certificate of cleanliness or certificate of origin, issued pursuant to this article.
This article is not applicable to seed which is intended for planting purposes or to other nursery stock.
ARTICLE 3. Prevention of Pest Dissemination by Movement of Appliances [5741. - 5744.]
To prevent the dissemination of pests through the agency of appliances, the director may from time to time publish a list of such pests which may be carried through such agencies and designate any treatment which in his opinion would prevent their dissemination.
Except as otherwise provided in Section 5744, it is unlawful for any person to ship or move any used appliances unless there is furnished to the commissioner of the county of destination such proof as he may require that the appliances either:
Have not been exposed to infestation or infection by any pests.
Have been treated immediately prior to shipment or movement in the manner which is designated by the director.
The commissioner of the county of destination shall refuse entry of the used appliances until the proof required in Section 5742 is furnished.
The used appliances may be moved to a place which is designated by the commissioner for treatment under his supervision.
ARTICLE 4. Eradication Areas [5761. - 5764.]
The regulations which are adopted pursuant to Article 2 (commencing with Section 5321) of Chapter 5, Part 1 of this division may proclaim any portion of the state to be an eradication area with respect to the pest, prescribe the boundaries of such area, and name the pest and the hosts of the pest which are known to exist within the area, together with the means or methods which are to be used in the eradication or control of such pest.
Any pest with respect to which an eradication area has been proclaimed, and any stages of the pest, its hosts and carriers, and any premises, plants, and things infested or infected or exposed to infestation or infection with such pest or its hosts or carriers, within such area, are public nuisances, which are subject to all laws and remedies which relate to the prevention and abatement of public nuisances.
The director, or the commissioner acting under the supervision and direction of the director, in a summary manner, may disinfect or take such other action, including removal or destruction, with reference to any such public nuisance, which he thinks is necessary.
If an eradication area has been proclaimed with respect to a species of fruit flies and the removal of host plants of such species is involved, the director may enter into an agreement with the owner of such host plants to remove and replace them with suitable nursery stock in lieu of treatment.
Any expenditures for the replacement nursery stock shall not exceed an amount which is budgeted for the purpose or approved by the Director of Finance.
ARTICLE 4.5. Notice Requirements [5771. - 5780.]
When the secretary proclaims an eradication project in an urban area pursuant to Article 4 (commencing with Section 5761), where the eradication plan includes potential aerial application of a pesticide, the secretary or the commissioner, pursuant to this article, shall do all of the following before aerially applying a pesticide to effect the eradication:
Conduct at least one public hearing, to include a presentation by the department and the opportunity for public comment, in the area to consider all alternatives to aerial application of a pesticide.
Seek an evaluation of human health risks and environmental risks jointly prepared by the Department of Pesticide Regulation and the Office of Environmental Health Hazard Assessment, including findings and recommendations regarding environmental and human risks of the proposed use of a pesticide by aerial application.
Notify residents and physicians practicing in the area, and the local broadcast and print media.
The notice shall be delivered at least 72 hours prior to applying the economic poison. When the application of a pesticide is to be made pursuant to an emergency, the notice shall be delivered at least 24 hours prior to applying the pesticide.
The notice shall be delivered to each residential unit in the treatment area. The notice shall also be mailed by first-class mail to each physician who maintains an office in the eradication area or is determined by the director to be likely to serve patients from the eradication area and whose scope of practice is determined by the director to be likely to include persons residing in the eradication area.
The notice shall be delivered by hand distribution whenever practicable. If it is not practicable to provide notice by hand distribution, then notice may be accomplished by first-class mail so long as the affected residents and physicians receive the notice within the time limits prescribed in this article.
In addition to any other notice requirements of this article, if the secretary determines that it may become necessary to use aerial application of a pesticide in a pest eradication program over an urban area, the secretary shall notify, as soon as it is feasible, the city and county in that affected area of the possibility of an aerial application.
If the date of a pesticide application is changed, the notice required by this article shall be redistributed and contain the revised information. Additionally, the secretary shall transmit the revised information to the local broadcast and print media, including not less than two radio stations providing the broadest coverage in the eradication area. No pesticide shall be applied within 96 hours from the date of that change.
The notice distributed pursuant to this article shall contain all of the following:
The likely date or dates and approximate time or times of all proposed pesticide applications in the eradication area.
The pesticides to be applied.
Any health and safety precautions that should be taken.
A telephone number and address of public health personnel who are familiar with the eradication program.
The active ingredients and inert materials of the pesticide, to the extent that the department is permitted by state and federal law to disclose them.
The notice, other than the notice specified in Section 5774.5, shall be in both English and in any other language in a city or county in the area where the pesticide is to be applied in which over 5 percent of the persons receiving the notice speak only that other language.
In every county that contains an eradication area in which a pesticide is used in the eradication effort, the department shall establish and operate a telephone service to provide information to the public on health issues related to application of the pesticide.
For pesticide applications other than by air, the procedures in this article may be followed subject to the discretion of the director as to their practicality.
No agency of the state or county shall be liable in any civil actions arising from the administration of this article if the director or the commissioner utilizes his or her best efforts to comply with the requirements of the article.
ARTICLE 5. Host-Free Periods and Districts [5781. - 5786.]
If the director determines that a particular pest, either within the state or from any area which is adjacent to the state, cannot be eradicated or effectively controlled by recognized ordinary means, or that it is impracticable to eradicate or control the pest without the destruction, in whole or in part, of uninfected or uninfested host plants, the director may adopt regulations which do all of the following:
Declares a host-free period or a host-free district, or both.
Describes any host and the district in which the planting, growing, cultivating, or maintenance in any manner of any plant which is capable of continuing the particular pest is prohibited during a specified period of time and until the menace from it no longer exists.
During the existence of a host-free period or host-free district which is established by regulations of the director, any host which is planted, growing, or being cultivated or maintained within the host-free period or district is a public nuisance and is subject to all the laws which relate to the abatement of the nuisance.
It is unlawful for any person to plant, grow, cultivate, or maintain any host which is described in any regulation of the director that establishes a host-free period or host-free district, within the host-free period or host-free district after notice of the host-free period or host-free district.
The regulations adopted by the director upon the establishment of a cotton host-free period or district for a particular pest shall, insofar as practical, be uniform and shall be uniformly enforced in all cotton host-free periods or districts established for that pest. Any exemptions or variances thereafter shall be extended to all other districts or periods unless the director finds that it will be detrimental to the eradication or effective control of the particular pest to do so.
The remedies provided in this article for any violation of this article are in addition to any other remedy provided by law.
Any person producing cotton in violation of cotton plowdown requirements adopted pursuant to this article is subject to a civil penalty of five hundred dollars ($500) for the first violation and one thousand dollars ($1,000) for each subsequent violation. Each acre not in compliance is a separate additional violation subject to a civil penalty of five dollars ($5) per acre of land not in compliance for the first violation and ten dollars ($10) per acre of land not in compliance for each subsequent violation.
Any person producing cotton in violation of cotton planting dates adopted pursuant to this article is subject to a civil penalty of five hundred dollars ($500) for the first violation and one thousand dollars ($1,000) for each subsequent violation. Each acre not in compliance is a separate additional violation subject to a civil fine of fifty dollars ($50) per acre of land not in compliance for the first violation and one hundred dollars ($100) per acre of land not in compliance for each subsequent violation.
The Attorney General, upon the request of the director, or the district attorney or county counsel, upon the request of the commissioner, may request a court to issue an injunction or take other appropriate action to restrain violations of this article relating to cotton pests.
Celery which is being produced in violation of a host-free period or district adopted pursuant to this article is a nuisance.
The commissioner shall take abatement action against any celery plants or parts thereof, other than seed, including any variety or subspecies of Apium graveolens found in violation of celery host-free period or district regulations. The person producing, who has produced, or who owns the celery shall be given not more than 48 hours to commence abatement of the nuisance and shall be given not more than five days to complete abatement.
If the person who is producing, has produced, or owns celery fails to commence and complete abatement within the time specified by the commissioner pursuant to subdivision (b), the commissioner shall abate the nuisance by appropriate means. The person who produced the celery plants shall pay 150 percent of all costs associated with the commissioner’s abatement of the nuisance.
The commissioner, with the approval of the director, may approve or deny a request for a hardship variance for celery plowdown due to adverse weather conditions.
It is unlawful to harvest for sale or to sell any celery grown during a host-free period. Any person, firm, or corporation harvesting celery (Apium graveolens) in violation of a host-free period regulation shall forfeit the total sale price received for the celery to the county in which the violations occurred. An action to recover the sale price shall be brought in the name of the county on order of the board of supervisors by the county counsel of the county. This remedy shall be in addition to any other remedy provided for by law.
The commissioner may request that the district attorney or county counsel assist him or her in expediting abatements and other actions necessary pursuant to this section.
The Legislature finds that any cotton plants and parts thereof not in compliance with any cotton plowdown dates adopted pursuant to this article constitutes a public nuisance which immediately threatens the health and safety of the public.
In addition to any other remedies provided by law, any cotton plant or part thereof not in compliance with any cotton plowdown order may be abated at the direction of the commissioner in the county where the cotton plant or parts exist. The notice of the cotton plowdown date shall serve as notice to the owner of the plant or parts thereof that the plant or parts constitute a public nuisance if not brought into compliance with the orders by that date. Thereafter, the commissioner may take any abatement action as is reasonably necessary to bring the plant and parts thereof into compliance.
The person who produced the cotton plant and parts thereof shall pay 150 percent of all costs associated with the commissioner’s abatement of the nuisance. The producers may, when making the payment of the amount, submit a written appeal of the payment to the director.
Any moneys collected pursuant to Section 5784 or this section for violation of cotton pest provisions shall be allocated to the commissioner in the county where the action is brought.
ARTICLE 6. Grafts and Buds from Plants Generally Infected [5801. - 5803.]
If the director, after investigation and hearing, determines that any kind or variety of plant is generally infected with a virus or mycoplasma-like disease that is dangerous or detrimental to the production of fruit, nut, or vine crops in this state, he may adopt regulations which prohibit or restrict the propagation by cuttings and the budding, grafting, or otherwise joining of tissue of such kind or variety of plant with any kind or variety of fruit or nut tree or vine.
If a source of any prohibited or restricted kind or variety of plant has been demonstrated to be free of dangerous or detrimental viruses or mycoplasma-like organisms, the director shall, in the regulation, permit use of such source.
It is unlawful for any person to bud, graft, or otherwise propagate or grow any fruit or nut tree or vine in violation of any regulations which are adopted pursuant to this article or to sell as nursery stock any plant which is so produced.
ARTICLE 7. Registries [5821. - 5827.]
The director, for the purpose of promoting and protecting the agricultural industry of the state, may, upon request, inspect plants and the premises upon or near which they are growing and the records of their sources and qualities. He may upon the basis of the information thus determined, maintain registries of the plants which are found not to be infested or infected, or liable to become infested or infected, with pests.
The director may do any of the following:
Certify as to the pest freedom of plants which may have been inspected or registered or may certify as to the true pest condition of the plants.
Issue tags, labels, or certificates in evidence of inspection or registry.
Supervise or conduct any special treatments which may be necessary to insure the pest freedom of plants for propagation or planting purposes.
Fix uniform fees to be charged for inspections, registrations, certifications, and special treatments. The fees shall be based upon the approximate cost of the service which is rendered.
The director may also establish and enforce regulations which are necessary to carry out the purposes of this article.
The cost of any service which is rendered pursuant to this article shall be paid from the Department of Food and Agriculture Fund out of any money which is derived pursuant to this article and shall not be a charge against the General Fund.
The services which are authorized by this article shall not duplicate services which are being rendered by commissioners.
It is unlawful for any person to alter, deface, or misuse any statement of registry, certificate, label, or tag which is issued pursuant to this article.
Any money which is received by the department pursuant to this article shall be paid into the State Treasury and be credited to the Department of Food and Agriculture Fund. Any money in the Department of Food and Agriculture Fund which was derived pursuant to this article may be expended for the administration and enforcement of any or all of the following which relate to nursery stock, notwithstanding any other provision of law which limits the expenditure of this money to some specific purpose or to the administration or enforcement of some specific section, article, chapter, or law:
Section 435.
Article 7 (commencing with Section 5821) of Chapter 8 of Part 1.
Chapter 1 (commencing with Section 6701) of Part 3.
Chapter 5 (commencing with Section 53301) of Division 18.
ARTICLE 7.5. Quality Certification Services [5850. - 5852.]
The Legislature finds and declares all of the following:
Enhancing global business and trade is in the economic interest of the state.
Domestic and foreign country quarantine and product quality requirements must be met to allow for the trade of many agricultural products.
Currently, to be acceptable to other states and foreign governments, phytosanitary and product quality certification and supporting analyses, diagnostics, and other testing of that type must be performed by an impartial, third-party governmental agency.
As a result of its regulatory responsibilities, the department has the technical capacity and expertise to meet current domestic and foreign government requirements for impartial, third-party governmental analytical, certification, diagnostic, inspection, quality assurance, and testing services and, as accreditation becomes acceptable to states and foreign governments, to accredit private entities to perform these kinds of services.
Nonregulatory activities are services for which the entities that receive the benefits should pay the costs. However, the department is not authorized or funded to establish a program to perform nonregulatory accreditation, analytical, certification, diagnostic, inspection, quality assurance, or testing work, nor is it authorized to establish a schedule of charges to recover its costs for those services.
It is the intent of the Legislature, in enacting this article, to enhance the state’s business and trade opportunities by authorizing the department to do all of the following:
Perform nonregulatory services such as export market phytosanitary and product quality analyses, certification, diagnostics, inspections, quality assurance, and testing relating to nursery stock, plants, seed, or plant pests and diseases.
Accredit and monitor or audit private entities as necessary.
Establish charges sufficient to recover its costs for nonregulatory services such as export market phytosanitary and product quality activities.
The department may provide, upon request, nonregulatory accreditation, analytical, certification, diagnostic, inspection, quality assurance, testing, and other nonregulatory services relating to nursery stock, plants, seed, or other plant pests and diseases on a charge-for-service basis or may accredit private persons or business entities to perform those services.
To ensure that the activities performed by private persons or business entities are valid and reliable, the department shall adopt regulations to establish accreditation criteria to govern its accreditation, monitoring or auditing, and revocation of accreditation activities. Any regulations adopted by the department pursuant to this subdivision shall be consistent with applicable federal law. The department may adopt by reference any pertinent federal laws or regulations pertaining to the accreditation of persons or business entities for the performance of work required to certify compliance with the quarantine, quality, and other import requirements established by other states or foreign countries. No private, nongovernmental entities that perform diagnostic or field inspections for the issuance of federal phytosanitary certificates shall be accredited until federal rules are adopted that permit and regulate those activities.
To retain accreditation, those persons or business entities providing services described in subdivision (a) shall agree to be monitored or assessed and evaluated on a periodic basis by means of proficiency testing or sample checking.
It is unlawful for any person or business entity that is not accredited by the department to make any representation regarding accreditation by the department. Any person or business entity that makes that representation, without valid departmental accreditation, may be enjoined from doing so by any court of competent jurisdiction upon suit by the department.
Each governmental agency within the state that governs and conducts activities related to plant quarantine or conducts a program to control the pests or diseases of nursery stock, plants, or seed shall accept the test results of any laboratory accredited under this section as being valid, unless the agency establishes specific criteria and standards for rejecting the results prior to the rejection and provides written justification to the state accrediting entity and laboratory stating the reasons the laboratory results do not meet the quarantine or disease or pest control program requirements under its jurisdiction. Any agency under this subdivision wishing to reject the accreditation of any laboratory or the test results of any laboratory accredited under this section must first obtain written approval from the secretary.
To assure validity and reliability, the department may specify, by order, the location or locations where the services described in subdivision (a) will be provided.
The department may establish, by regulation, a schedule of charges to cover the department’s costs for specific services it provides. Charges for the accreditation and monitoring of laboratories located outside the state shall include the expenses for all required travel and per diem and may include application, basic, initial, renewal, and other charges that the department deems necessary to cover its costs for accreditation and monitoring or auditing for compliance. Funds collected through cost-recovery charges are dedicated to, and may only be used for, carrying out the activities and functions specified in this article.
Notwithstanding any other provision of this code regarding the provision of the services described in subdivision (a), orders issued by the department and regulations establishing charges adopted by the secretary pursuant to this section shall not be subject to review, approval, or disapproval by the Office of Administrative Law.
Nothing in this section shall be construed to interfere with or supersede any existing inspection, quality assurance, or certification program conducted by an agricultural trade or commodity organization, and this section shall not be construed to require those programs to be certified or accredited by the department.
CHAPTER 9. Specific Pest Control and Abatement Provisions [5901. - 6049.]
ARTICLE 1. Citrus White Fly Districts [5901. - 5907.]
To provide for the eradication of the citrus white fly, the director may by proclamation declare any portion of the state where the citrus white fly is known to exist to be a citrus white fly district.
The proclamation shall state both of the following:
The existence of the citrus white fly district.
The description of the boundaries of the district.
The director shall print a copy of the proclamation in one or more papers of general circulation in the infested district.
Every plant within a citrus white fly district which is infested with citrus white fly or with the eggs, larvae, or pupae of the citrus white fly, or which there is reasonable cause to believe may be infested with citrus white fly, is a public nuisance.
The existence of any known host plant of citrus white fly within the boundaries of the district is reasonable cause to believe the host plant is infested with the citrus white fly.
The department and the commissioners may cause the destruction of any host plant of the citrus white fly in a summary manner.
If, in the opinion of the enforcing officer, the host plant may be treated in a manner to destroy all citrus white flies or the eggs, larvae, or pupae of the citrus white fly which are or may be on the plant, the officer may in a summary manner cause such treatment to be given.
ARTICLE 2. Citrus Disease Prevention [5911. - 5940.]
The Legislature hereby finds and declares that the citrus killing diseases, Huanglongbing, citrus leprosis, citrus variegated chlorosis, and citrus canker, and the associated vectors present a clear and present danger to California’s citrus industry, as well as to other commodities and plant life.
This article is intended to establish an industry-funded program to assist in combating citrus specific diseases, vectors, and pests when found in California.
This article is not intended to create new mandates or circumvent state and federal authority on citrus or other agricultural commodities.
This article is not intended to establish a precedent, or to supersede or supplant in any way federal, state, or local government funding of efforts to combat citrus diseases and other pests in this state.
The prevention and management of citrus diseases is a matter of public interest. The provisions of this article are enacted for the protection of the citrus industry and in the exercise of the police power of the state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
The Legislature finds and declares that the California citrus industry creates one billion eight hundred million dollars ($1,800,000,000) in citrus fruit, another one billion two hundred million dollars ($1,200,000,000) in economic activity, and employs an estimated 25,000 people in the state.
Unless the context otherwise requires, the following definitions shall govern the construction of this article:
“Carton” means a unit equivalent to 40 pounds of citrus fruit.
“Citrus” means “citrous” and any plants of the genera Citrus, Fortunella, Poncirus, and all hybrids having one or more of such as parents.
“Citrus disease” includes any infectious, transmissible, or contagious disease or vector infesting citrus trees.
“Committee” means the California Citrus Pest and Disease Prevention Committee.
“Department” means the Department of Food and Agriculture.
“Districts,” except as otherwise provided in Section 5914, consist of the following geographical areas:
The Southern District consists of all growing areas in San Bernardino County and all other areas to the south, west, and east of San Bernardino County that are not included in any other district.
The Coastal District consists of all growing areas in the Counties of Monterey, San Luis Obispo, Santa Barbara, and Ventura.
The Kern District consists of all growing areas in Kern County.
The Tulare District consists of all growing areas in Tulare County.
The Northern District consists of all growing areas in Fresno County and all other areas to the north that are not included in any other district.
“Handler” means a person or entity who receives citrus fruit from a producer and who prepares the citrus fruit for fresh market.
“Marketing season” begins October 1 of each year and ends September 30 of the next year.
“Person” means a producer, handler, or any other entity that holds title to citrus fruit subject to assessment pursuant to this article.
“Producer” means any person in this state who is a grower of citrus fruit, but does not include a citrus nursery.
“Secretary” means the Secretary of Food and Agriculture.
“Specific to citrus” means of exclusive or principal concern to citrus as opposed to other commodities.
“Technical Advisory Committee” means the committee in existence at the effective date of this article, or its successor, that is responsible for developing and approving the citrus tristeza virus effective plan for the Central California Tristeza Eradication Agency.
There is hereby created the Citrus Disease Management Account in the Department of Food and Agriculture Fund.
The Citrus Disease Management Account shall consist of money from federal, industry, and other non-General Fund sources. Money from federal, industry, and other non-General Fund sources shall be available upon appropriation by the Legislature for the sole purpose of combating citrus specific pests, diseases, and their vectors.
There is hereby created in the department the California Citrus Pest and Disease Prevention Committee.
The committee shall be composed of 17 members. Fourteen producer representatives shall be appointed by the secretary from nominations received from each district. District representation shall be determined by the secretary on a proportional basis equal to the production history of each district for the previous two years. The secretary shall also strive to appoint producers representing the different varieties of citrus fruit produced in California.
One member shall be a public member, appointed by the secretary from the nominees recommended by the committee.
Two members shall be citrus nursery operators, one representing northern California, defined as counties in the San Joaquin Valley and north but not including counties on the coast who shall be represented by a southern California designee, and one representing southern California, appointed by the secretary from the nominees recommended by the committee.
The initial members of the committee shall be appointed within 30 days of the enactment of this article. The members shall serve staggered terms. The terms of the members of the committee shall expire as follows:
Two members on September 30, 2010.
Five members on September 30, 2011.
Five members on September 30, 2012.
Five members on September 30, 2013.
The members of the committee shall allocate the initial terms among themselves by lot or other method.
Appointments to the committee shall be for terms of four years. Vacancies shall be immediately filled by the secretary based on recommendations from the committee for the unexpired portion of the terms in which they occur.
The secretary and other appropriate individuals, including, but not limited to, county agricultural commissioners, pest control advisors, and representatives of the University of California and California State University systems, as determined by the secretary, in consultation with the committee, shall be nonvoting ex officio members of the committee.
Committee members may be compensated for reasonable expenses actually incurred in the performance of their duties, as determined by the secretary after consultation with the committee.
The committee shall meet at the request of the secretary, the committee chairperson, or upon the request of three committee members.
The committee shall appoint a chairperson, one or more vice chairpersons, and any other officers it deems necessary.
The Legislature finds and declares that persons appointed to the committee are intended to represent and further the interests of the citrus industry, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the committee, the citrus industry is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The powers and duties of the committee are limited to activities involving the producers of citrus fruit and residential owners of citrus fruit or other host material.
The committee may do all of the following:
Develop, subject to the approval of the secretary, a statewide citrus specific pest and disease work plan that includes, but is not limited to, the following:
Informational programs to educate and train residential owners of citrus fruit, local communities, groups, and individuals on the prevention of pests, and diseases and their vectors, specific to citrus.
Programs for surveying, detecting, analyzing, and treating pests and diseases specific to citrus involving producers of citrus fruit and residential owners of citrus fruit and host materials, except as provided in Section 5930.
Submit recommendations to the secretary on, but not limited to, the following:
Annual assessment rate.
Annual budget.
Expenditures necessary to implement the statewide work plan developed pursuant to this section.
The amount of fees to be levied, as provided in Section 5919.
The receipt of money from other sources to pay any obligation of the committee and to accomplish the purposes of the committee in the manner provided in this article.
Recommend to the secretary the adoption of regulations consistent with the powers and duties of the committee.
The committee shall not engage in any activity deemed by the secretary to be contradictory to any eradication program or quarantine implemented to combat citrus specific pests, diseases, or related vectors.
For any program or activity occurring pursuant to this section, the department shall be the lead agency, unless an agreement is reached between the committee and the secretary to authorize another agency within the state or local government to act as lead for specific activities.
Any program or activity submitted by the committee to, and approved by, the secretary pursuant to this section shall not be altered without first notifying the committee of the alteration.
Upon receipt of a recommendation from the committee for the adoption of regulations, the secretary shall do one of the following within 30 working days:
Initiate the rulemaking process to adopt the recommendation of the committee.
Decline to initiate the rulemaking process and provide the committee with a written statement of reasons for the decision.
Request the committee to provide additional information regarding the recommended regulations.
All regulations adopted pursuant to this article shall be adopted in compliance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), and may be subsequently repealed or amended as provided for in that act.
No member or agent of the committee shall be personally liable for the actions of the committee or the department. No member or agent of the committee is responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, by either commission or omission, as a principal, agent, or employee except for his or her own individual acts of dishonesty or crime. No member or agent of the committee is responsible individually for an act or omission of any other member or agent of the committee or the department. Liability is several and not joint, and no member or agent of the committee is liable for the default of any other member or agent of the committee or the department.
The committee shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this article, including the costs of implementing and administering the administrative, enforcement, and regulatory recommendations of the statewide work plan developed by the committee.
The secretary shall not seek reimbursement for costs that exceed expenditures developed by the committee without first notifying the committee of the additional expenditures.
During the first marketing season, beginning February 1, 2010, and ending September 30, 2010, the monthly assessment to be paid by producers shall be one cent ($0.01) per carton. Thereafter, in addition to any other assessments, fees, or charges that may be required pursuant to this code, producers shall pay a monthly assessment established by the committee that shall not exceed twelve cents ($0.12) per carton. The assessment shall be:
Based on the number of 40-pound carton equivalents produced.
Collected from the producer by the first handler. If a producer prepares the citrus fruit for market, the producer shall be deemed the handler.
Remitted to the department by the first handler, along with an assessment report, at the end of each month during the marketing season.
Deposited in the Citrus Disease Management Account in the Department of Food and Agriculture Fund or, upon the recommendation of the committee, deposited in accordance with Section 227 or Article 2.5 (commencing with Section 230) of Chapter 2 of Part 1 of Division 1. The use of the funds deposited in the Citrus Disease Management Account shall be limited to the activities authorized by this article.
A producer producing less than 750 40-pound carton equivalents shall not be required to remit the assessment provided in subdivision (a).
The committee may recommend to the secretary an assessment less than the amount specified in subdivision (a) or no assessment if no disease prevention program is necessary or if there is sufficient reserve to operate the program, except as provided in Section 5930.
Upon establishment of a disease prevention program, any handler who does not file the required monthly assessment report and assessments by the 10th day of the month following the month for which the assessment is payable shall pay a penalty of 10 percent of the assessment owed and, in addition, 112 percent interest per month on the unpaid balance.
Upon establishment of a disease prevention program, it shall be unlawful for any handler to refuse to collect the assessments or remit the assessments and the proper reports required by this article.
A handler shall not charge a producer an administrative fee for collecting or remitting an assessment.
A producer who disputes the amount of the assessment may file a claim with the secretary. The producer shall prove his or her claim by a preponderance of the evidence.
A producer may not bring any claim against a handler for damages, or otherwise, in connection with the assessment or the required deduction by the handler of the moneys owed to the producer as provided in this article.
No later than June 30, 2013, the secretary shall hold one or more public hearings to determine whether the operation of this article should be continued. Thereafter, the secretary shall conduct the review process every four years.
If the secretary finds after the hearing that a substantial question of opposition exists among affected producers under this article regarding whether the operation of this article should be continued, the secretary shall submit the article for approval utilizing the following voting procedures set forth in this section and Sections 5923 to 5927, inclusive. As used in this subdivision, “substantial question of opposition” means opposition to the substance of the petition among currently affected producers, and is not intended to mean a particular number of producers.
Within 90 days of the secretary determining the requirement for referendum has been met, the secretary shall establish a list of persons eligible to vote on the continued implementation of this article.
Eligibility shall be limited to producers who paid the assessment on citrus fruit in the immediately preceding marketing season.
In establishing the list, the secretary may require handlers, producers, and others to submit the names, mailing addresses, and assessment values of all producers who paid the assessment on citrus fruit in the immediately preceding marketing season.
The information required by the secretary shall be filed either with the monthly assessment form or no later than 30 days following receipt of a written notice from the secretary requesting the information.
Any producer whose name does not appear on the secretary’s list may have his or her name added to the list by filing with the secretary a signed statement identifying himself or herself as a producer that paid an assessment during the most recent marketing season.
In determining whether this article shall become inoperative, the secretary shall find that at least 40 percent of the total number of producers from the list established by the secretary participated in the referendum, and that either one of the following occurred:
Fifty-five percent or more of the producers who voted in the referendum voted in favor of this article, and the producers who voted paid a majority of the assessment dollars on citrus fruit in the preceding marketing season that were paid by all the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this article, and the producers who voted paid 55 percent or more of the assessment dollars on citrus fruit in the preceding marketing season that were paid by all the producers who voted in the referendum.
The secretary shall establish a period in which to conduct the referendum that shall not be less than 10 days nor more than 60 days in duration. The secretary may prescribe additional procedures to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has not been given as provided in this article, this article shall become inoperative within one year of the end of the referendum period.
If the secretary finds that a favorable vote has been given as provided in this article, he or she shall certify and give notice of the favorable vote to all persons whose names and addresses may be on file with the secretary as provided in Section 5922.
Upon termination of this article, and based upon a recommendation of the committee subject to approval by the secretary, any collected assessments not required to defray financial obligations incurred pursuant to this article shall be returned on a pro rata basis to all persons from whom assessments were collected during the marketing season immediately preceding the date of termination or paid to any existing state or federal program engaged in citrus specific pest and disease prevention activities. The assessments refunded to handlers shall be paid to producers if the assessment was previously deducted from moneys owed to the producer by the handler.
No later than July 1, 2011, the committee, in consultation with the department, shall enter into a memorandum of understanding with citrus pest control districts responsible for funding citrus tristeza virus prevention activities, pursuant to Part 5 (commencing with Section 8401) of Division 4, for the purpose of funding the implementation of the citrus tristeza virus effective plan. The memorandum of understanding shall include, but not be limited to, the following:
Language providing that the programs, protocols, and implementation for the citrus tristeza virus effective plan will be developed and approved by the Technical Advisory Committee, or its successor, in consultation with the committee.
Provision for the funding required to implement the citrus tristeza virus effective plan.
In the event the committee and the citrus pest control districts do not agree on the terms of the memorandum of understanding as prescribed in Section 5930, the citrus pest control districts shall conduct an election to determine which entity shall provide funding for the citrus tristeza virus effective plan. The ballot shall ask landowners within the citrus pest control districts to select either (1) the California Citrus Pest and Disease Prevention Committee and the Department of Food and Agriculture through the Citrus Disease Management Account to fund the citrus tristeza virus effective plan or (2) the citrus pest control districts as the funding entity of the citrus tristeza virus effective plan.
The provisions of this article are severable.
If any provision of this article or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
ARTICLE 3. Sterile Mexican Fruit Fly Production Facility [5951. - 5953.]
The Legislature hereby finds and declares all of the following:
The introduction of Mexican fruit flies into California presents a serious threat to California’s economy.
The use of alternative methods for pest control is generally preferred to the aerial application of pesticides over urban areas.
The use of sterile flies has proven to be one of the most effective nonchemical procedures in the successful control and eradication of Mexican fruit flies.
California does not have a reliable source of sterile Mexican fruit flies that may be used to control future infestations of this pest.
The federal government, other states, the agricultural industry, and the country of Mexico would all benefit from a reliable source of sterile Mexican fruit flies.
The director may establish and operate a facility outside of this state to produce sterile Mexican fruit flies or enter into an agreement with any other public or private entity to jointly establish and operate the facility.
Any contract entered into by the department to determine the appropriate location, select a suitable facility, or prepare preliminary plans and working drawings is exempt from the Public Contract Code.
ARTICLE 5. Cotton Pest Control [6001. - 6006.6.]
It is hereby declared that the cotton industry of this state is threatened with the invasion of cotton boll weevil and pink bollworm of cotton. These two pests, if established in this state, will cause losses of several million dollars per year to this state’s number one field crop. The purpose of this article is the prevention of the introduction of these two pests into this state and it is not intended to set a precedent, supersede, or change the normal methods of acting to control or eradicate newly established pests in this state.
The director, or an entity designated by the Cotton Pest Control Board, may contract with the United States Department of Agriculture for the purpose of controlling, suppressing, or eradicating cotton boll weevil or pink bollworm in this state, the State of Arizona, or the Republic of Mexico to prevent the entry and establishment of these pests in this state.
“First handler” means the first person who, as owner, agent, or broker, purchases, or otherwise acquires from a grower, possession or control of cotton.
Every grower of cotton in the state shall pay a fee of three dollars ($3) for each bale of cotton ginned or for each bale of cotton sold by a grower in this state who received the cotton under the federal payment-in-kind program, Section 700 et seq. of Title 7 of the Code of Federal Regulations.
The fee is a maximum fee. The amount of the fee may vary from district to district in accordance with the protection afforded to the cotton crop in the districts. The director may establish districts in the state for the purpose of fixing the fee. Between February 1 and June 30 of each year, the Cotton Pest Control Board shall recommend to the director the amount of the fee that it determines to be necessary to carry out this article in each district. The director may fix the fee at a less amount, when it is determined that the cost of administering this article can be defrayed with the below-maximum fee. The amount of the fee shall be effective for the next fiscal year. The fee shall be paid to the director or the entity designated by the Cotton Pest Control Board at the time the cotton is ginned or by the first handler when the cotton is sold in the case of cotton received by growers under the federal payment-in-kind program, Section 700 et seq. of Title 7 of the Code of Federal Regulations. The first handler shall deduct the fee from any moneys owed to the grower. To determine the number of payment-in-kind bales on which the fee is calculated that the first handler pays to the director, the first handler shall divide each grower’s total payment-in-kind entitlement pounds of cotton by 500.
The amount received from fees and other sources of income shall be deposited and handled in a manner determined by the Cotton Pest Control Board and shall be used exclusively to pay costs directly related to the control of pink bollworm or other related cotton pests.
Fees which have not been expended by the termination date of this article shall be refunded.
Moneys received from other sources for this program may be used to carry out the purposes of this article.
The Cotton Pest Control Board may hire any and all necessary personnel, contract for services, and incur all other expenses necessary to carry out the purposes of this article.
The director shall appoint a Cotton Pest Control Board, consisting of 10 members, to assist and advise him or her on matters which pertain to the control of cotton pests and to carry out its authority specified in this article.
The membership shall consist of at least one cottongrower from each of the major cotton-growing counties in the state, and one member who is not a cottongrower and who represents the public.
Any member of the board who misses two meetings without the permission of the board, is deemed to have resigned as a member of the board.
The board may meet in regular session each month. The chairperson of the board or the director may call any other meeting of the board at any time. Each member shall be allowed per diem and mileage in accordance with Department of Human Resources rules for attending any meeting of the board.
The board shall annually review the effectiveness of the cotton pest control program.
It is hereby declared, as a matter of legislative determination, that cottongrowers appointed to the Cotton Pest Control Board pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such board, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
Any decision made by the Cotton Pest Control Board which results in an entity other than the department administering this article shall be made not later than May 1 of any year.
ARTICLE 6. Field Rodents [6021. - 6024.]
If the director receives a report from the executive officer of the State Department of Health Services which states that field rodents in a certain area carry, or are likely to carry, any disease, insect, or other vector of any disease which is transmissible and injurious to humans, he shall forthwith advise the commissioner of the county in which such rodents exist.
The commissioner shall cooperate in suppressing field rodents and insects, or other associated vectors of rodent-borne diseases transmissible and injurious to humans.
The director shall cooperate by entering into an agreement pursuant to Section 482 for the purpose of suppressing the field rodents and insects or other associated vectors in the reported areas and in neighboring areas, to prevent the spread of the rodents and insects, or other associated vectors.
In order to carry out the purposes of this article, the director or commissioner may enter upon any and all premises within any reported area or neighboring area to bait, trap, expose chemically treated baits, or perform any act which he deems necessary for the purpose of suppressing, destroying, or repelling the rodents and insects, or other associated vectors.
ARTICLE 6.5. Vertebrate Pest Control Research [6025. - 6029.]
The Legislature hereby finds and declares all of the following:
The continued viability of the agricultural economy is of paramount importance to the people of this state.
Vertebrate pests cause an estimated two hundred million dollars ($200,000,000) damage to agricultural crops each year, and without effective controls, the losses and damage could reach one billion dollars ($1,000,000,000) annually.
The use of materials to control vertebrate pests benefits the public health by preventing rodent-borne diseases that could be transmitted, and be injurious, to humans.
County departments of agriculture have historically provided vertebrate pest control materials to the agricultural community.
Recent changes in the federal law require the development of extensive data and the payment of registration fees in order to register these materials, and these requirements are costly. Research studies to develop this data will be required if these valuable control materials are to be maintained.
It is appropriate that the necessary research be funded by an assessment on the vertebrate pest control materials for which these studies are required.
For purposes of this article, “vertebrate pest” means any specie of mammal, bird, reptile, amphibian, or fish that causes damage to agricultural, natural, or industrial resources, or to any other resource, and to the public health or safety.
For purposes of this article, “research” means basic and applied research. Basic research is experimental or theoretical work undertaken primarily to acquire new knowledge of the underlying foundation of phenomena and observable facts, without any particular application or use in view. Applied research is also original investigation undertaken in order to acquire new knowledge, but it is conducted to solve practical problems or objectives.
Notwithstanding Section 597u of the Penal Code, carbon monoxide may be used for the control of burrowing rodent pests, provided the following conditions are met:
The carbon monoxide delivery device shall be permanently affixed with a warning label in plain view of the operator that includes, at a minimum, the following information:
DANGER: Carbon monoxide is a poisonous gas that is odorless and colorless. Exposure to carbon monoxide can kill within minutes. Never use in structures inhabited by humans or livestock. The device must be used in accordance with all existing laws and regulations including Chapter 1.5 (commencing with Section 2050) of Division 3 of, known as the California Endangered Species Act, and Sections 4002 and 4003 of, the Fish and Game Code.
The use of carbon monoxide is subject to the requirements of Chapter 1.5 (commencing with Section 2050) of Division 3 of, known as the California Endangered Species Act, and Sections 4002 and 4003 of, the Fish and Game Code, and the requirements of Division 6 (commencing with Section 11401) and Division 7 (commencing with Section 12500).
The secretary shall establish and administer a research program to control vertebrate pests that pose a significant threat to the welfare of the state’s agricultural economy, infrastructure, and the public.
The specific purposes of the program include all of the following:
The investigation of effective and economical alternative materials for the control of vertebrate pests, including carbon monoxide to control burrowing rodent pests.
The solicitation and consideration of research proposals for alternative humane methods of control.
The continuation of current vertebrate pest control product registration at the state level until alternative products are developed that prove to be effective and economical.
The funding of research for the development of scientific data to fulfill registration requirements.
Cooperation with the United States Department of Agriculture in funding research programs to maintain, develop, and register vertebrate pest control materials used in this state.
The secretary shall establish the Vertebrate Pest Control Research Advisory Committee consisting of the following members, appointed by the secretary, to serve at the pleasure of the secretary:
One representative of the department.
One representative of the California Agricultural Commissioners and Sealers Association.
Five representatives of the agricultural industry representing affected commodities.
One representative of the University of California.
One representative of the California State University.
One representative of the State Department of Health Services.
One representative of the general public, with consideration given to a person with expertise in animal welfare.
On or before December 31 of each year, the committee shall recommend to the secretary priorities for conducting various vertebrate pest control research projects and the amount of the assessment necessary to carry out those research projects.
There is hereby created the Vertebrate Pest Control Research Account in the Department of Food and Agriculture Fund. Notwithstanding Section 13340 of the Government Code, the money in the account is continuously appropriated to the secretary for purposes of carrying out this article. Notwithstanding any other provision of law, the moneys in the account shall not be transferred to any other fund or encumbered or expended for any purpose other than as provided in this article.
Expenditure of funds pursuant to this article shall be limited to the following:
Reasonable administrative and operational expenses of the committee and the department, subject to the recommendation of an annual budget by the committee and approval by the secretary.
Federal and state regulatory fees for the continued registration of vertebrate pest control materials and the registration of new materials.
Basic and applied research as described in Section 6025.3.
Educational outreach on the subject of vertebrate pest control methods, including, but not limited to, the safe use of carbon monoxide to control burrowing rodent pests.
During the calendar year, each commissioner shall pay to the secretary a fee not to exceed fifty cents ($0.50) per pound of vertebrate pest control material sold, distributed, or applied by the county for vertebrate pest control purposes, less the amount necessary to recover the cost of complying with the provisions of this article, as determined by the secretary. No assessment shall be imposed on the sale or on the distribution of vertebrate pest control material by a county agricultural commissioner to another commissioner. Vertebrate pest control material registered by the secretary may only be sold or distributed by a county agricultural commissioner or as authorized by the secretary.
The secretary may set a different level of assessment in the amount necessary to provide revenue for the vertebrate pest control research projects carried out pursuant to this article only if the secretary, at a minimum, has consulted with the Vertebrate Pest Control Research Advisory Committee. The new level of assessment may only commence at the beginning of the subsequent calendar year. However, the assessment shall not exceed one dollar ($1) per pound of vertebrate control material sold, distributed, or applied by the county for vertebrate pest control purposes. To assist the advisory committee in making its recommendations, the department shall submit a progress report to the members of the advisory committee at least 30 days prior to each meeting of the advisory committee. The report shall include, but is not limited to, data on research that has been, or is proposed to be, conducted and statements regarding the necessity for that research. This section does not preclude the department from preparing and distributing additional reports that may be requested by the advisory committee.
The assessment payments required pursuant to Section 6027.5, together with a report of the amount of vertebrate pest control materials sold, distributed, or applied during the previous six-month period, shall be made biannually by each commissioner to the secretary within one calendar month after June 30 and December 31 of each year.
This article shall remain in effect only until January 1, 2035, and as of that date is repealed.
ARTICLE 7. Beet Leafhopper Control [6031. - 6043.]
The necessity of controlling beet leafhopper, the only known vector of the curly top virus, is recognized by the Legislature as being in the public benefit. The state’s agricultural business economy could be seriously damaged if measures are not continued to prevent the transmittal of curly top virus by this insect. Since the control program primarily is carried on in uncultivated areas, involving both private and public lands, often far removed from the areas receiving benefits, it is necessary for a state agency to take primary responsibility. The Legislature therefore supports a program jointly funded by industry and public funds whereby protection is provided to both home gardens and commercial crops.
As used in this article “handler” means any person that engages in the operation of selling, marketing, or processing any of the crops vulnerable to damage from curly top virus, as covered by this chapter, which he or she has purchased, or acquired from a producer or which he or she is marketing, selling or processing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise. A producer-handler is a producer who operates as a handler as to any such crop produced by him or her. Every producer or producer-handler of agricultural crops susceptible to curly top virus as determined by the secretary, may include, but is not limited to, tomatoes, sugar beets, melons, beans, cucumbers, spinach, and peppers shall pay to the department an assessment on all those crops sold or delivered by him or her to a handler or, in the case of a producer-handler, on those crops marketed by the producer-handler. The full amount of the assessment shall be collected from the producer by the handler at the point and time that the crop is purchased or received by the handler as provided by regulations of the secretary.
Except as otherwise provided in this article, the assessment collected from producers by handlers or due from producer-handlers shall be paid by the handlers or producer-handlers to the secretary as provided by regulations of the secretary.
Any assessment that is imposed on the producer pursuant to this article is a personal debt of the producer.
Every handler or producer-handler is personally liable for the payment of the assessment. The failure of the handler or producer-handler to collect the assessment does not exempt the handler or producer-handler from liability, and does not relieve the producer from the obligation to pay the assessment.
Any producer, handler, or producer-handler who fails to file a return or pay the assessment or otherwise comply with Section 6033 shall pay a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 1.5 percent interest per month on the unpaid balance of the assessment and the penalty.
For the purpose of assessment, the following districts are established: District I, Imperial and Riverside Counties; District II, Kern, Kings, Tulare, Fresno, Madera, Merced, Stanislaus, and San Joaquin Counties, and that portion of Los Angeles County lying north of the San Gabriel Mountains; District III, Sacramento, Solano, Yolo, Placer, Sutter, Yuba, Colusa, Butte, and Glenn Counties; District IV, Alameda, Contra Costa, Monterey, San Benito, San Luis Obispo, Santa Clara, Santa Cruz, and Santa Barbara Counties; additional areas of the state may be established in districts by regulation of the secretary if the secretary finds crops in any such district are subject to damage from curly top virus and that any such district is necessary to accomplish the purposes of this article.
The secretary may establish the rate of assessment by district and crop and may adjust the assessment rate from time to time, whenever necessary as provided in Section 6036.
The assessment rate may vary from district to district and from crop to crop based on the degree of vulnerability to damage from curly top virus experienced by those crops in those districts. The rates may also vary in accordance with the protection afforded to those crops in those districts. Any rate or rates established shall be set by regulation. The assessments shall be in total amount sufficient to reimburse the secretary, and whenever feasible, shall not exceed 65 percent of the expenditure by the department in carrying out the beet leafhopper control program.
Any money which is received by the director pursuant to this article shall be deposited in the Department of Food and Agriculture Fund to be used for the administration and enforcement of this article.
The director may receive moneys from other sources for this program, which shall be deposited into the Department of Food and Agriculture Fund and used to carry out the purposes of this article.
The secretary shall appoint a Curly Top Virus Control Board consisting of nine members. The membership shall consist of at least one representative of each of the primary crop commodities assessed and shall include representation from each of the districts assessed. The secretary may appoint one additional member on the board, who shall be a public member. The secretary shall appoint one member of the board to serve as chairperson.
Upon the secretary’s request, the board shall submit to the secretary the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, or processor or financially interested in any producer, shipper, or processor, for appointment by the secretary as a public member of the board. The secretary may appoint one of the nominees as the public member on the board. If all nominees are unsatisfactory to the secretary, the board shall continue to submit lists of nominees until the secretary has made a selection. Any vacancy in the office of the public member of the board shall be filled by appointment by the secretary from the nominee or nominees similarly qualified submitted by the board. The public member of the board shall represent the interests of the general public in all matters coming before the board and shall have the same voting and other rights and immunities as other members of the board.
It is hereby declared, as a matter of legislative determination, that persons appointed to the Curly Top Virus Control Board pursuant to Section 6039 are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such board, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
Board members shall serve at the pleasure of the secretary.
Except as provided in subdivision (b), the board shall be advisory to the secretary and may make recommendations on all matters pertaining to this article including, but not limited to, the annual budget, the adoption, modification, and repeal of regulations and procedures, the use of funds for research, and necessary assessments required to accomplish the purposes of this article as provided in Section 6031.
The secretary shall accept the recommendations of the board if the secretary determines that the recommendations are practicable and in the interest of the industry and the public. The secretary, within 30 days of the decision, shall provide the board with a written statement of reasons for his or her decision if the secretary does not accept a recommendation of the board.
The board shall meet at the call of its chairman or the secretary or at the request of any three members of the board. The board shall meet at least once a year. Members of the board shall be allowed per diem and mileage in accordance with rules of the Department of Human Resources for attendance at meetings and other board activities authorized by the board and approved by the secretary.
Upon termination of this article, any remaining funds received pursuant to this article shall be refunded on a pro rata basis to all persons from whom assessments were collected during the 12-month period preceding the date of termination, unless the secretary finds the amounts so returnable are so small as to make impractical computation and remitting of refunds. If the secretary makes such a finding, the funds may be used for beet leafhopper control or research activities.
ARTICLE 8. Pierce’s Disease [6045. - 6047.]
The Legislature finds and declares that the plant killing bacterium, Xyella Fastidiosa, and the resulting pathogen, Pierce’s disease, and its vectors present a clear and present danger to California’s sixty-billion-dollar grape industry, as well as to many other commodities and plant life.
There exists an ongoing need for at least fifteen million dollars ($15,000,000) annually in research and programs to combat Pierce’s disease and its vectors in California.
There is hereby created in the department the Pierce’s Disease Control Program.
The secretary shall appoint a statewide coordinator and provide an appropriate level of support staffing and logistical support for combating Pierce’s disease and its vectors.
There is hereby created the Pierce’s Disease Management Account in the Department of Food and Agriculture Fund.
The account shall consist of money transferred from the General Fund and money made available from federal, industry, and other sources. Money made available from federal, industry, and other sources shall be available for expenditure without regard to fiscal year for the purpose of combating Pierce’s disease or its vectors and for the purpose described in Section 6047.30. State general funds to be used for research shall be expended only when the secretary has received commitments from nonstate sources for at least a 25-percent match for each state dollar to be expended.
The funds appropriated pursuant to this section to the Department of Food and Agriculture Fund for the purpose of combating Pierce’s disease and its vectors shall be used for costs that are incurred by the state or by local entities for the purpose of research and other efforts to combat Pierce’s disease and its vectors.
Whenever, in any county, funds are allocated by the department for local assistance regarding Pierce’s disease and its vectors, those funds shall be made available to a local public entity, or local public entities, designated by that county’s board of supervisors.
Funds appropriated for local assistance shall not be allocated to the local public entity until the local public entity creates a Pierce’s disease work plan that is approved by the department. Any funds allocated by the department to a designated local public entity shall be used for activities consistent with the local Pierce’s disease work plan or other programs or work plans approved by the department. It shall be the responsibility of the designated local public entity to develop and implement the local Pierce’s disease work plan. Upon request, the department shall provide consultation to the local public entity regarding its work plan.
The work plan created by the designated local public entity shall include, but is not limited to, all of the following:
In coordination with the department, the development and delivery of producer outreach information and training to local communities, groups, and individuals to organize their involvement with the work plan and to raise awareness regarding Pierce’s disease and its vectors.
In coordination with the department, the development and delivery of ongoing training of the designated local public entity’s employees in the biology, survey, and treatment of Pierce’s disease and its vectors.
The identification within the designated local public entity of a local Pierce’s disease coordinator.
The proposed treatment of Pierce’s disease and its vectors. A treatment program shall comply with all applicable laws and regulations and shall be conducted in an environmentally responsible manner.
In coordination with the department, the development and implementation of a data collection system to track and report new infestations of Pierce’s disease and its vectors in a manner respectful of property and other rights of those affected.
On an annual basis, while funds appropriated by this section are available for encumbrance, the department shall review the progress of each local public entity’s activities regarding Pierce’s disease and its vectors and, as needed, make recommendations regarding those activities to the local public entity.
This article shall become inoperative on March 1, 2031, and as of January 1, 2032, is repealed, unless a later enacted statute that is enacted before January 1, 2032, deletes or extends the dates on which it becomes inoperative and is repealed.
The secretary may establish, maintain, and enforce regulations consistent with the intent of the Legislature as expressed in this article as may be necessary to interpret, clarify, or implement this article. This authority shall be liberally construed to effectuate the intent of this article.
ARTICLE 8.5. Pierce’s Disease and the Glassy-winged Sharpshooter [6047.1. - 6047.30.]
The Legislature finds and declares the following:
The state’s agricultural business economy could be seriously damaged if measures are not taken to prevent the transmittal of the plant killing bacterium that causes Pierce’s disease and to contain its vectors, particularly the glassy-winged sharpshooter, and if measures are not taken to prevent or inhibit infestations by other designated pests and diseases. Furthermore, progress made by winegrape growers and others in the adoption of integrated pest management and sustainable farming practices is threatened by these destructive pests and diseases.
The funding to accomplish the purposes of this article shall be derived from an assessment on all grapes grown in California and crushed for wine, wine vinegar, juice, concentrate, or beverage brandy.
This article is not intended to establish a precedent, or to supersede, or to reduce or in any way alter government funding of the effort to combat Pierce’s disease and other pests in this state.
The purposes of this article are enhanced by the many and varied efforts of other agricultural commodities’ industries to combat this bacterium and its vectors and other designated pests and diseases.
This article is enacted for the protection of the winegrape industry and is also declared to be enacted in the public interest and in the exercise of the police power of the state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
For the purposes of this article, the following definitions shall govern its construction:
“Board” means the Pierce’s Disease and Glassy-winged Sharpshooter Board.
“Department” means the Department of Food and Agriculture.
“Marketing season” begins July 1 of each year and ends June 30 of the next year.
“Producer” means a grower, including a cooperative, of grapes in California for wine, wine vinegar, juice, concentrate, or beverage brandy.
“Processor” means a processor who crushes grapes in California for wine, wine vinegar, juice, concentrate, or beverage brandy.
“Person” means a producer, processor, or any other entity that holds title to grapes subject to assessment.
“Purchase” means the taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift, or any other voluntary transaction creating an interest in property. For purposes of this subdivision, “sale” shall consist of the passing of title from the seller to the buyer for a price.
“Purchased grapes” means grapes grown in California, crushed by a processor for wine, wine vinegar, juice, concentrate, or beverage brandy, and purchased from a person considered a separate entity from the purchaser.
“Grapes not purchased” means all other grapes grown in California and crushed by a processor for wine, wine vinegar, juice, concentrate, or beverage brandy, including, but not limited to, the following:
Grapes grown by a person who is not considered a separate entity from the processor or who is a member of the processor cooperative.
Grapes not purchased and crushed to the account of a person who retains ownership of the grapes.
“Secretary” means the Secretary of Food and Agriculture.
“Other designated pests and diseases” means pests and diseases designated by the secretary as provided in Section 6047.30.
Within 90 days after the effective date of this section, the secretary shall create in the department the Pierce’s Disease and Glassy-winged Sharpshooter Board, which shall consist of at least 14, but not more than 15 members, of which eight shall be representatives of producers who are not also processors and six shall be representatives of processors who are also producers.
The secretary shall appoint the members of the board from recommendations received from the industry. In making the appointments, the secretary shall select no more than one person from a producer or processor entity and shall ensure that there is representation on the board from each of the major grape production areas in the state.
The secretary may appoint one additional member to the board, from nominees received from the board, who shall serve as the public member. The public member shall represent the interests of the public in all matters coming before the board and shall have the same voting and other rights and immunities as other members of the board.
The secretary and other appropriate individuals, as determined by the board, shall be nonvoting ex officio members of the board.
It is hereby declared, as a matter of legislative determination, that persons appointed to the board are intended to represent and further the interests of the industry concerned, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the board, the industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
Notwithstanding any other provision of law, the secretary, upon the recommendation of the board, may contract with any nonprofit authoritative scientific body with expertise in agricultural issues in order to expedite research relating to the eradication of Pierce’s disease.
The powers of the board shall be the following:
Submit recommendations to the secretary on, but not limited to, the following:
Selection of officers.
Terms of office for board members.
Annual assessment rate.
Annual budget.
Receive money from the assessment and other sources.
Adopt, amend, and rescind all proper and necessary bylaws and procedures.
Coordinate its activities with the secretary’s science advisory board and agricultural/governmental advisory task force.
A majority of the members of the board shall constitute a quorum of the board. The vote of a majority of the members present at a meeting at which there is a quorum constitutes an act of the board, except for actions taken pursuant to subdivision (a) of Section 6047.7, which shall require a majority of the vote of the board. The board may continue to transact business at a meeting where a quorum is initially present, notwithstanding the withdrawal of members, provided any action is approved by the requisite majority of the required quorum.
As authorized by the board, members of the board may receive per diem and mileage in accordance with the rules of the Department of Human Resources for attendance at meetings and other approved board activities.
Expenditure of the funds pursuant to this article shall be restricted to the following:
Reasonable administrative expenses of the board and the department, subject to the limitation in Section 6047.12.
The collection, enforcement, deposit, and handling of the assessments.
Notwithstanding Section 6047.12, costs to conduct a referendum.
Subject to subdivision (d) of Section 6047.1, research and other activities related to the transmittal of the plant killing Pierce’s disease bacterium and its vectors, particularly the glassy-winged sharpshooter, including, but not limited to, research of integrated pest management and other sustainable industry practices. The disbursement of research funds collected pursuant to Section 6047.7 shall be on a competitive bid basis, shall be exempt from the requirements of Sections 12798 and 12798.6, and may be encumbered with existing resources beyond the termination date of this statute.
Except as provided in subdivision (c), data and related information and materials produced during the course of research conducted pursuant to this article that are in the possession of the department, the board, or any entity engaged in research funded pursuant to this article, shall be confidential and shall not be released for any purpose, except to the extent that they are included in any final publication of research, or except when required by a court order after a hearing in a judicial proceeding involving this article.
The restrictions in this section shall not apply to research conducted by the University of California or by other public agencies or public institutions that are subject to interagency agreements, except to the extent that they are consistent with policies of the entity engaged in research funded pursuant to this article on sponsored research and publication, which may allow for, among other things, a short period of review by the board in advance of publication.
Processors subject to this article and expenditure of the funds collected pursuant to this article are subject to audit by the department.
The secretary shall accept the recommendations of the board unless he or she determines that the recommendations are not practicable or in the interest of the industry or the public. The secretary shall provide the board with the reasons for his or her decision within 15 days if the secretary does not accept a recommendation of the board.
During the first marketing season, beginning July 1, 2001, and ending June 30, 2002, the annual assessment shall be three dollars ($3) for each one thousand dollars ($1,000) assessed pursuant to Section 6047.9 for all grapes subject to assessment under this article. The department shall notify each processor of the established assessment as soon as practicable. For each marketing season thereafter, the following shall apply:
An annual assessment shall be recommended by the board and submitted to the secretary for approval in an amount not to exceed three dollars ($3) for each one thousand dollars ($1,000) assessed pursuant to Section 6047.9 for all grapes subject to assessment under this article.
The department shall notify each processor of the established assessment rate by July 15, or as soon thereafter as possible.
In no event shall there be an assessment on the following:
Material other than grapes, and defects, or other weight adjustments deducted from the gross weight ticket.
Any raisin-distilling material.
Grapes for which an assessment has been withheld, paid, or is already owed.
The assessment is the obligation of the producer.
For purchased grapes, the processor who purchases the grapes shall act on behalf of the person from whom the grapes were purchased in collecting and remitting the assessment, shall deduct the assessment from moneys owed by the processor, and shall pay the assessment as provided in this article.
For grapes not purchased, the processor who crushes the grapes shall do the following:
Charge the person who retains ownership of the grapes the assessment and pay the assessment as provided in this article.
Be responsible for the remittance of the assessment for the crushing of grapes from persons not considered a separate entity from the processor.
For purposes of calculating the amount to be collected by the processor for purchased grapes, the assessment shall be based on the gross dollar value of the grapes, which is the gross dollar amount payable for the grapes before any deductions for governmental assessments and fees.
For purposes of calculating the assessment for grapes not purchased, the assessment shall be based on the following:
The tonnage of grapes delivered less material other than grapes and defects or other weight adjustments deducted from gross weight.
The weighted average price per ton delivered basis purchased from all nonrelated sources for wine, concentrate, juice, wine vinegar, and beverage brandy by processors, by type, variety, and reporting district where grown for the grapes delivered, sources as reported by the secretary pursuant to Section 55601.5 for the immediately preceding marketing season.
All assessments payable under this article shall be remitted to the department no later than January 31 of each year. The department shall deposit the assessments remitted into the Department of Food and Agriculture Fund.
In no event shall any proprietary information specified in Section 6047.13 that is received by the department in collecting assessments be transferred to the board.
Processors shall not charge producers an administrative fee for collecting and remitting assessments.
Any producer who disputes the amount of the assessment may file a claim with the department. The producer shall prove his or her claim by a preponderance of the evidence.
Expenditures charged by the department and the board for administrative purposes shall not exceed a total of 14 percent of the assessments collected pursuant to this article. Administrative purposes shall include, but not be limited to, all auditing expenses and all costs and attorney’s fees resulting from, or relating to, litigation involving this article against the department, or the board and its members and agents, and expenses associated with Section 6047.4 and paragraphs (1) and (2) of subdivision (a) of Section 6047.5.
Notwithstanding subdivision (a), the Joint Legislative Audit Committee and the State Auditor shall maintain independent authority to audit the expenditure of industry assessments.
All proprietary information obtained by the board or the department from producers, processors, or any other source, including, but not limited to, the name, addresses, and assessments collected from individual producers and processors in the possession of the board or the department, including processors’ lists of their producers and the assessment of individual producers, is confidential and shall not be disclosed, except when required by a court order issued upon a showing of good cause and that the information is necessary to a judicial proceeding involving this article.
Disclosure, as permitted under this section, shall be conducted in camera by the court.
The court shall, in the court’s discretion, issue orders restraining a party or parties to a judicial proceeding involving this article from disseminating any proprietary information to the public or any other person not a party to that judicial proceeding.
The sole remedy against any producer who fails to pay the assessment and against any processor who fails to collect and remit assessments within the time required by the secretary shall be an action to collect the delinquent assessments and payment to the secretary a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, payment to the secretary of 112 percent interest per month on the unpaid balance.
A producer may not bring any claim against a processor for damages, or otherwise, in connection with the assessment or the required deduction by the processor of the moneys owed to the producer as provided in this article.
Upon termination of this article, and based upon a recommendation of the board subject to approval by the secretary, any collected assessments not required to defray financial obligations incurred pursuant to this article shall be returned on a pro rata basis to all persons from whom assessments were collected during the marketing season immediately preceding the date of termination or paid to any existing state or federal program engaged in disease prevention or research activities in the grape industry. The assessments refunded to processors shall be paid to producers if the assessment was previously deducted from moneys owed to the producer by the processor.
No action in law or equity may be brought against any members or agent of the board, nor shall any member or agent of the board be personally liable for the actions of the board or the department. No member or agent of the board is responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as a principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or agent of the board, is responsible individually for an act or omission of any other member or agent of the board, or the department. Liability is several and not joint, and no member or agent of the board is liable for the default of any other member or agent of the board, or the department.
This article shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
This article shall be liberally construed. If any provision of this article or the application thereof to any person or circumstances is held to be invalid, the invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or application, and, to this end, the provisions of this article are severable.
On or before December 31 of every year, the secretary, after consultation with the board, shall make publicly available on the department’s internet website, a report on the status of this article and Article 8 (commencing with Section 6045), including, but not limited to, program expenditures, progress, and ongoing priorities in combating Pierce’s disease and its vectors in California for the previous calendar year.
The report shall include a financial accounting, including the distribution of industry assessments and any unexpended amount on deposit, of the department’s efforts to contain Pierce’s disease and its vectors.
If this article does not become inoperative on an earlier date pursuant to Section 6047.20 or 6047.27, this article shall remain in effect only until March 1, 2031, and in any case is repealed as of that date, unless a later enacted statute, that is enacted before March 1, 2031, deletes or extends that date.
This article shall become inoperative as of March 1, 2026, unless the secretary finds, in a referendum conducted by the secretary, or a person designated by the secretary, subsequent to the operative date of the amendments to this section adopted in 2024, that a favorable vote has been given pursuant to this article.
No later than April 15, 2025, the secretary shall establish a list of those persons eligible to vote on the continued implementation of this article.
Eligibility shall be limited to the producers, processors, and persons who paid the assessment on grapes crushed in the immediately preceding season.
In establishing the list, the secretary may require processors, producers, and others to submit the names, mailing addresses, and assessment values of all producers who paid the assessment on grapes crushed in the immediately preceding marketing season.
The information required by the secretary shall be filed either with the annual assessment report or no later than 30 days following receipt of a written notice from the secretary requesting the information.
Any producer whose name does not appear on the secretary’s list may have their name added to the list by filing with the secretary a signed statement identifying them as a producer that paid an assessment during the most recent marketing season.
In determining whether this article shall become inoperative, the secretary shall find that at least 40 percent of the total number of persons from the list established by the secretary participated in the referendum, and that either one of the following occurred:
65 percent or more of the persons who voted in the referendum voted in favor of this article, and the persons who voted paid a majority of the assessment dollars on grapes in the preceding marketing season that were paid by all the persons who voted in the referendum.
A majority of the persons who voted in the referendum voted in favor of this article, and the persons who voted paid 65 percent or more of the assessment dollars on grapes in the preceding marketing season that were paid by all the persons who voted in the referendum.
In determining whether the referendum is approved by producers pursuant to the provisions of this article, the secretary shall consider the vote in favor of the referendum of any nonprofit agricultural cooperative marketing association, which is authorized by its members so to assent, as being the assent, approval, or favor of the producers that are members of, or stockholders in, that nonprofit agricultural cooperative marketing association.
The secretary shall establish a period in which to conduct the referendum that shall not be less than 10 days nor more than 60 days in duration. The secretary may prescribe additional procedures to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote as provided in this article has not been given subsequent to the operative date of the amendments to this section adopted in 2024, this article shall become inoperative as of March 1, 2026.
If the secretary finds that a favorable vote has been given as provided in this article, the secretary shall certify and give notice of the favorable vote to all persons whose names and addresses may be on file with the secretary as provided in Section 6047.21.
The provisions of this article are severable.
If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
The secretary shall appoint an advisory task force consisting of scientific experts, including, but not limited to, university researchers and agricultural representatives, for the purpose of advising the secretary on the control and management of Pierce’s disease.
Members of the advisory task force, or alternate members when acting as members, may be reimbursed, upon request, for necessary expenses incurred by them in the performance of their duties.
The board may, after consulting with the advisory task force and upon making findings as described in this section, recommend to the secretary, and the secretary may determine, that a pest or disease affecting grapes grown in California and crushed for wine, wine vinegar, juice, concentrate, or beverage brandy be designated as an other designated pest or disease, and that money should be expended on research and outreach programs for purposes consistent with Sections 6046 and 6047.1 relating to the other designated pest or disease. However, no General Fund moneys shall be expended after March 1, 2011, on new research and outreach programs relating to other designated pests or diseases.
The board’s findings in support of a recommendation under this section shall include all of the following:
The pest or disease would adversely affect the health of grape vines, the yield from grape vines, or the quality of grapes grown on the vines if the pest or disease becomes established in California or expands to new areas of the state.
The pest or disease would significantly damage the state’s agricultural business economy if allowed to become established in California or expand to new areas of the state.
Significant portions of the grape producing areas of the state are now affected, or reasonably likely to be adversely affected in the future, by the spread of the pest or disease.
Expenditures of money approved by the secretary based on the findings and recommendations described in this section will not, to a substantial degree, diminish any expenditures under Article 8 (commencing with Section 6045) or this article on Pierce’s disease and its vectors, particularly the glassy-winged sharpshooter, research, work plans, and program activities.
Scientific experts, including, but not limited to, university researchers, entomologists, plant pathologists, economists, and other agricultural representatives have provided information and advice in support of the findings described in paragraphs (1), (2), (3), and (4). For purposes of this paragraph, it is not required that all scientific experts consulted by the board agree or provide similar advice.
ARTICLE 8.7. Table Grape Pest and Disease District [6047.60. - 6047.124.]
The Legislature hereby finds and declares the following:
California is the leading producer of table grapes in the United States, accounting for 97 percent of table grapes grown in this country.
Table grapes are grown in 15 counties located throughout the state.
California grows more than 170,000 acres of table grapes producing over 700,000 tons of table grapes per year, valued at more than eight hundred sixty million dollars ($860,000,000) with a direct and indirect impact on the state’s economy that totals more than four billion dollars ($4,000,000,000).
The plant killing bacterium, Xylella fastidiosa, and the resulting plant disease known as Pierce’s disease, and its vectors, present a clear and present danger to California’s nearly three billion dollar ($3,000,000,000) grape industry, as well as to many other commodities and plant life.
Pierce’s disease and its vector the glassy-winged sharpshooter have spread into the southern San Joaquin Valley, which, if left unabated, places grapes and other commodities throughout California in immediate peril.
In addition to the research funds and program provisions set forth in Article 8 (commencing with Section 6045) of Chapter 9 of Part 1 of Division 4, dealing with wine grapes, the table grape industry is at substantial risk for Pierce’s disease and other pests and recognizes the need for additional specific control programs.
Additional programs may include field treatments similar to, or the expansion of, the successful United States Department of Agriculture and California Department of Food and Agriculture General Beale area pilot program in Kern County. The expansion of those programs may require industry assessments from the table grape industry through the creation of a pest abatement district.
The state has an interest in protecting its agricultural products from further destruction by the glassy-winged sharpshooter and Pierce’s disease, and other designated pests and diseases.
As a known vector for Pierce’s disease, the glassy-winged sharpshooter has been determined to carry and spread Pierce’s disease to many forms of California agriculture, usually with complete destruction to the infected crop. This destructive effect of the disease has been determined by experts in the viticulture field to be especially true with respect to infected table grapes. To avoid a potentially catastrophic loss to one of California’s most important industries, the Legislature declares that this article is in the interest of the public health and welfare.
This article shall not establish a precedent for, or supercede, reduce, or in any way alter, government funding from any source related to Pierce’s disease and other designated pests and diseases in this state.
The Legislature further declares that it is in the interest of the public health and welfare that the districts authorized to be created by this article not duplicate existing services already being provided by the University of California, state, counties, or the county agricultural commissioners to eradicate the glassy-winged sharpshooter and Pierce’s disease, and other designated pests and diseases.
This article shall be known and may be cited as the Table Grape Pest and Disease District Law.
It is the purpose of this article to make available a procedure for the organization, operation, and dissolution of districts to respond to the effects of the spread of the glassy-winged sharpshooter and Pierce’s disease, and other designated pests and diseases that attack table grape plants, and to collect and disseminate to table grape producers in the district all relevant information and scientific studies concerning the pest or pests, as well as to chart and determine the extent and location of any infestations.
Division 3 (commencing with Section 56000) of Title 5 of the Government Code does not apply to districts organized pursuant to this article.
Unless the context otherwise requires, the definitions in this section govern the construction of this article.
“Board” or “board of directors” means the board of directors of a district.
“District” means a table grape pest district organized pursuant to this article.
“Owner” includes joint owner, coowner, guardian, executor, administrator, or any other person that holds property in a trust capacity under court appointment.
“Pierce’s disease” is the disease of grapevines caused by the bacterium Xylella fastidiosa.
“Table grapes” means all table grape varieties specified in the report issued pursuant to Section 55601.5. “Table grapes” also means all raisin varieties specified in the report issued pursuant to Section 55601.5 that are intended to be marketed in their fresh form.
“Table grape acreage” means any parcel of real property with more than one acre of table grape plants.
“Grower” or “producer” means any person who is engaged within this state in the business of producing, or causing to be produced, table grapes for market.
“Other designated pests and diseases” means pests and diseases designated by the district as serious pests and diseases warranting district action.
Proceedings for the formation of a district within any county shall be commenced by a petition signed by the owners of 15 percent of the table grape acreage.
The petition shall be addressed to, and filed with, the board of supervisors of the county.
The petition may be filed in sections, each of which shall comply with all the requirements for a petition, except that a section need not contain the total number of signatures required for the petition.
Signatures to the petition may be withdrawn at any time before it has been acted upon by filing with the clerk of the board of supervisors a declaration signed by the petitioner that states that it is the intention of the petitioner to withdraw his or her signature from the petition.
The petition shall state the name of the proposed district and shall set forth its boundaries or describe the lands to be included.
It is a sufficient designation of the boundaries of a proposed district to recite that all the table grape acreage in the county that is to be included in the district, or that all the table grape acreage in a designated area within the county is to be included in the district.
If either designation is used, the outside boundary of the area designated is the boundary of the district, and the district shall include all areas within the outside boundary.
The petition shall be accompanied by a fee in an amount established by the board of supervisors as is necessary to reimburse the county for all costs incurred by it in connection with the proposed organization of the district. The board of supervisors may charge the district for actual expenses incurred by the county in connection with the proceedings for the formation of the district.
Upon the establishment of the district, the district shall reimburse those who provided the funds specified in subdivision (a) from assessments collected pursuant to this article.
Upon the presentation and filing of a petition, the board of supervisors shall refer the petition to the county agricultural commissioner for the preparation of a register of owners of table grape acreage within the proposed district, and for an investigation and report.
The county agricultural commissioner shall create a register of all table grape acreage owners within the proposed district and specifically describe the net acreage of land devoted to the growing of table grapes by each owner. The county agricultural commissioner shall file with the register of table grape acreage owners a report to the board of supervisors describing the present condition of the glassy-winged sharpshooter and Pierce’s disease infestations, or infestation of other designated pests and diseases, and any proposed program that may warrant the board of supervisors proceeding with the organization of the district and recommendation as to the advisability of creating the district.
The board of supervisors shall fix a time and place for a hearing of the petition.
The hearing shall not be less than 20 days, or more than 40 days, after the filing of the petition with the board of supervisors.
The board of supervisors shall order the clerk of the board of supervisors to give notice of the hearing that will do the following:
State the time and place for the hearing that was fixed by the board of supervisors.
State that at the hearing protests will be considered by the board of supervisors.
State that requests in writing for the exclusion of acreage from, or the inclusion of acreage in, the proposed district, will be heard and considered by the board of supervisors.
State that the petition is available for inspection at the office of the clerk of the board of supervisors.
Designate the boundaries of the proposed district in substantially the same way that they are described in the petition.
Notice of the hearing shall be given by publication in a newspaper of general circulation published and circulated in the district.
The notice shall be published once a week for two successive weeks prior to the date set for the hearing.
At the hearing, the report of the county agricultural commissioner shall be received. Protests may be made orally or in writing by any person interested in the formation of the proposed district. Any protest that pertains to the regularity or sufficiency of the proceedings shall be in writing and shall clearly set forth the defects to which objection is made. All written protests shall be filed with the clerk of the board of supervisors on or before the time fixed for the final hearing. The hearing may be continued from time to time, not to exceed 60 days.
At the hearing, any owner of table grape acreage in the proposed district may present to the board of supervisors a request, in writing, for the exclusion of that acreage or any part of that acreage from the proposed district upon a showing that the acreage or part of that acreage will not be benefited by the activities of the proposed district. However, if the excluded acreage is planted with table grapes, the owner of the acreage shall inform the district, in writing, within 30 days of planting. Factors that the board of supervisors may consider in its determination for exclusion, as set forth in an affidavit from the owner of the acreage, shall include the following:
That the acreage is not planted to table grapes and will not be so planted in the foreseeable future, as evidenced by an affidavit from the owner of the acreage so stating.
That the table grape plants have been removed from the acreage and that no living table grape plants remain on the acreage.
That exclusion of the acreage, or any part of the acreage, from the district will not present a risk of glassy-winged sharpshooter infestation or infestation by other designated pests or diseases because of the acreage’s distance or isolation from infested geographical regions.
If the board of supervisors determines that the petition does not comply with the requirements of law, the matter may be dismissed without prejudice to present a new petition covering the same matter. A finding by the board of supervisors in favor of the sufficiency of the petition and notice is final and conclusive against all persons except the state in a proceeding brought by the Attorney General within one year of the date of the making of the order establishing and describing the boundaries of the district. If the petition is dismissed, that portion of the fee imposed under Section 6047.68 that would have been used to pay for costs of the election shall be refunded.
If the board of supervisors determines that the project is feasible and in the interest of the table grape acreage owners of the county, the board of supervisors shall, by order entered in its minutes, declare the district is duly organized under the name designated in the petition for the formation of the district.
The order shall describe the territory included in the district and, if the board of supervisors does not exclude or include acreage pursuant to Section 6047.78, it is a sufficient description of the territory to describe the boundaries in substantially the same way as they are described in the petition.
A copy of the order certified by the clerk of the board of supervisors shall be filed with the county recorder of the county in which the district is situated.
In determining the boundaries of the district, the board of supervisors shall exclude from the district any table grape acreage that it finds will not be benefited by the proposed project, pursuant to the facts in Section 6047.74, and it may include in the district any acreage that it finds will be benefited if it also finds it will be in the interest of the district to include this acreage. The inclusion may be upon application of the owner or, without the owner’s application, upon giving the owner notice of the proposed inclusion and an opportunity for a hearing on the inclusion.
Notice of inclusion shall be mailed, postage prepaid, by the clerk of the board of supervisors, to the address of the owner of the acreage as shown by the last equalized county assessment roll, and to any person that has filed with the clerk that person’s name and address and description of acreage in which he or she has either a legal or equitable interest. The notice shall describe the acreage proposed to be included, and shall state the time and place at which objections to the inclusion will be heard.
Any owner of table grape acreage outside of the proposed district may present to the board of supervisors a request in writing for inclusion of the acreage in the proposed district.
Upon the filing of the order of organization, the board of supervisors shall appoint a board of directors of five members to administer the affairs of the district.
To be a director of the district, a person shall be either an owner of, or the designee of an owner of, acreage included in the district that is devoted, in whole or in part, to the growing of table grapes.
Upon his or her appointment, each director shall, in the manner provided by law, subscribe the oath of office and file the oath with the county clerk.
From and after the filing for record of the order of the board of supervisors declaring the district organized, and the appointment and qualification of its first board of directors, the organization of the district is complete. The district shall operate for a period of five years from the date of its organization, and shall cease to exist after five years unless the district is reauthorized by the board of supervisors.
The board of directors shall hold a public hearing six months prior to termination of its initial organization or last reauthorization to determine whether the conditions of the glassy-winged sharpshooter or Pierce’s disease or other designated pests and diseases warrant the reauthorization of the district for an additional five years.
The notice of hearing shall state the name of the district and that consideration is being given to reauthorizing the district for an additional five years, the boundaries of the district, and the time and place for the hearing. Notice of the hearing shall be given as provided in Sections 6047.71 and 6047.72. The board of directors shall submit the record of the hearing and its recommendation to the board of supervisors within 90 days of the hearing. The board of supervisors shall approve or reject the recommendation. If it rejects the recommendation, the board of supervisors shall return the report accompanied by its reasons for the rejection to the board of directors within 30 days of receipt. The board of directors may thereafter address the reasons for rejection by the board of supervisors and submit an amended report and new recommendations for reauthorization for approval or rejection by the board of supervisors, unless the district has ceased to exist pursuant to subdivision (a).
If the board of supervisors approves the continuation of the district, the board of supervisors shall, by an order entered in its minutes, declare the district duly extended.
Immediately after the organization of the district, the directors shall meet and organize as a board and shall elect a chairperson, vice chairperson, and secretary from among their own number.
The chairperson shall call and preside at all meetings of the board, sign all warrants drawn on the county treasurer, and all contracts and other documents, and the minutes of all meetings at which the chairperson is present. In case of the chairperson’s absence from a meeting, the vice chairperson shall act as chairperson pro Tempore. The vice chairperson may sign warrants in place of the chairperson if the chairperson is absent from a meeting or unavailable. The secretary shall give notice of and keep the minutes of all meetings and prepare and have custody of all records and papers, and have custody of the seal of the district. The secretary shall attest all warrants drawn on the county treasury, all contracts and other documents, and shall sign the minutes of all meetings at which he or she is present. The secretary shall prepare the annual reports and any other reports required by the board and shall prepare all notices and all calls for bids.
The members of the board shall serve for terms of two years, or for a longer term as determined by the board of supervisors, and until the appointment and qualification of their successors.
Upon the expiration of the term of any member of the board, the board of supervisors shall appoint the successor. Vacancies shall be filled by the board of supervisors for the unexpired term.
The members of the board shall not receive any compensation for their services, but may be reimbursed for their actual and necessary expenses, when claims for those expenses have been approved by the board.
The district may do all of the following:
Sue and be sued in all actions and proceedings in all courts and tribunals of competent jurisdiction.
Adopt a seal and alter it at pleasure.
Accept contributions, and by grant, purchase, gift, devise, lease, or otherwise, and hold, use and enjoy, and lease, or otherwise dispose of, real and personal property of every kind and description within or without the district necessary to the full and convenient exercise of its powers.
Recommend an assessment to the board of supervisors to be levied on the owners of acreage of table grapes being grown in the district to pay obligations of the district incurred to accomplish the purposes of the district as provided in this article, which may involve funding all or a portion of a Pierce’s disease or glassy-winged sharpshooter program, or program involving other designated pests and diseases.
Make contracts, and employ, except as otherwise provided in this article, all persons, firms, and corporations necessary to carry out the purposes and the powers of the district, and at any salary, wage, or other compensation as the board of directors shall determine.
Respond to the effects of, the spread of glassy-winged sharpshooter and Pierce’s disease, and other designated pests and diseases, and collect and disseminate to table grape growers and the owners of table grapes acreage in the district relevant information and scientific studies concerning these pests or diseases, as well as to chart and determine the extent and location of any infestations.
Take all actions necessary to control, eradicate, remove, or prevent the spread of the glassy-winged sharpshooter or Pierce’s disease, or other designated pests and diseases injurious to table grapes.
With reasonable advance notice in writing to the landowner, as determined by the district, enter into or upon any land included within the boundaries of the district for the purpose of inspecting the grape plants and any other host plants and fruit growing on these lands.
Eradicate, eliminate, remove, or destroy any table grape plants having evidence of Pierce’s disease or other designated pests and diseases.
Coordinate with the county agricultural commissioner as to his or her taking appropriate actions to have any table grape plants growing within the district infested with Pierce’s disease or other designated pests and diseases adjudged a public nuisance, and decreed that the nuisance be abated.
Coordinate district activities with other table grape pest and disease districts established pursuant to this article and Section 6047.3.
Perform any and all acts, either within or outside the district, necessary or proper to fully and completely carry out the purposes for which the district is organized.
The district’s administrative costs shall be limited to 5 percent of the annual assessment revenue.
Every district formed pursuant to this article has all of the powers prescribed by Section 6047.87 and other provisions of this article, regardless of any language in the petition for formation for any district or in any of the proceedings leading to the formation that would otherwise limit the power of the district.
The county agricultural commissioner of the county in which the district is located shall, upon request of the board, assist the district to the extent possible in all activities undertaken by the district for the control of glassy-winged sharpshooter and Pierce’s disease or other designated pests and diseases.
The board shall, immediately after its appointment and after public hearing, formulate an effective plan and adopt a budget of expenditures for the forthcoming fiscal year. At a public hearing on the plan and the budget, any owner of table grape acreage included in the district may make written or oral protest against the budget or any item in it. The plan and the budget, as thereafter approved by the board, shall be the plan and the budget of the district for the forthcoming fiscal year.
There may be added to the budget for the first fiscal year of the operation of the district an amount not to exceed 20 percent of the total amount of the budget to cover the preliminary expenses of the district, including, but not limited to, the costs of formation, before the beginning of the first fiscal year.
For each fiscal year subsequent to the first year of operation of the district, the board shall adopt the final budget in the same manner that the budget for the first fiscal year was adopted.
The district shall identify any parcel of real property with more than one acre of table grape plants that shall be subject to assessments.
Whenever acreage within the district is planted with table grape plants in a fashion so as to qualify as table grape acreage, the acreage is subject to assessment as provided in this article.
After the district has been formed, an owner of table grape acreage in the district may present to the board a request in writing for the exclusion of that acreage or any part of the acreage from the district upon a showing that the acreage or part of the acreage will not be benefited by the activities of the district. Factors that the board may consider in its determination for exclusion, as set forth in an affidavit from the owner of the acreage, shall include those specified in Section 6047.74.
After receipt of the request, the board shall cause an investigation of the parcel of acreage to be made and, if the board determines that the acreage or part of the acreage will not be benefited by the activities of the district and that exclusion of the acreage will not present a pest risk to the district, the board shall exclude the table grape acreage from the district and immediately certify this fact to the county assessor and the county auditor or tax collector.
Any owner of table grape acreage outside of, or otherwise not included in, the district may present to the board a request in writing for inclusion of the acreage in the district.
The board shall, on or before the first Monday in April of each year, or as soon thereafter as possible, file with the board of supervisors a budget that sets forth all estimated expenditures of the district for the fiscal year commencing on the first day of July. A copy of the budget shall also, at the same time, be filed with the auditor of the county.
The board of supervisors may, by ordinance or by resolution, adopted after notice and a hearing, determine and levy an assessment for table grape pest and disease control activities or other activities specified in subdivision (a) of Section 6047.87 related to designated pests and diseases for any of the following purposes:
Responding to, managing, and controlling the effects of the spread of glassy-winged sharpshooter and other designated pests and diseases that attack table grape plants.
Collecting and disseminating to table grape growers in the district relevant information and scientific studies concerning the pest or pests.
Charting and determining the extent and location of any Pierce’s disease infestations and infestations of other designated pests and diseases.
Reimbursing the county or counties in which the district is located for expenses incurred in connection with providing services under this article that are not otherwise reimbursed.
An annual assessment greater than the amount provided for in this section may not be charged unless a greater assessment is approved by eligible owners in accordance with the voting requirements of Articles XIII C and XIII D of the California Constitution, as incorporated by Proposition 218 of 1996, as provided for in Section 6047.100.
The board of supervisors shall cause to be prepared and filed with the clerk of the board of supervisors a written report that contains all of the following information:
A description of each parcel of property proposed to be subject to the assessment.
The amount of the assessment of each parcel for the initial fiscal year.
The maximum amount of the assessment that may be levied for each parcel during any fiscal year.
The duration of the assessment.
The basis of the assessment.
The schedule of the assessment.
A description specifying the requirements for written and oral protests, and the protest threshold necessary for requiring abandonment of the proposed assessment pursuant to subdivision (f).
Unless otherwise excluded, the assessment shall be levied on each parcel within the boundaries of the district, zone, or area of benefit.
The board of supervisors shall comply with the notice, protest, and hearing procedures in Section 53753 of the Government Code.
In addition, the mailed notice shall include the name of the district, the return address of the sender, the amount of the assessment for the initial fiscal year, the maximum amount of the assessment that may be levied during any fiscal year and the name and telephone number of the person designated by the board of supervisors to answer inquiries regarding the protest proceedings.
The assessment authorized to be assessed and levied is hereby declared to be in the nature of a special assessment, and the Legislature hereby finds that the owners of all table grape plants will be benefited by the district to the same extent and in the same manner regardless of the age of the plants. The assessments authorized by this article shall be assessed and levied regardless of the age of the table grape plants growing on the land.
The assessment levied shall be computed and entered upon the assessment roll by the county auditor, and if the supervisors fail to levy the assessment as required, the auditor shall do so.
The assessment shall be collected at the same time, and in the same manner as, and together with and not separate from, general county taxes, and when collected shall be paid into the county treasury for the use of the district.
The general provisions of the laws of this state, prescribing the requirements for and manner of levying and collecting county taxes and the duties of the several county officers with respect to levying and collecting county taxes, are, so far as they are applicable and not in conflict with the specific provisions of this article, hereby adopted and made a part of this article. This article, however, shall operate so as to be compliant with Article XIII (C) and XIII (D) of the California Constitution, as incorporated by Proposition 218 of 1996. The several county officers referred to shall be liable upon their several official bonds for the faithful discharge of the duties imposed upon them by this article.
The revenue from the assessments imposed pursuant to this article by the district are trust funds and shall be encumbered only for the purposes for which the district is formed and for the benefit of the acreage assessed. The district shall expend the minimum amount necessary for overhead and other administrative costs. No district funds shall be donated, loaned, or transferred to any other local agency or to the state for any purpose, except for the implementation of the duties of the district, set forth under this article, as determined to be necessary by the district board.
The county treasury shall be the repository of all the moneys of the district. The county treasurer shall receive and receipt for all those moneys, and place them to the credit of the district.
The county treasurer shall be responsible upon his or her official bond for the safekeeping and disbursement, in the manner provided in this article, of all moneys held in the district.
If a consolidated district includes parts of two or more counties, the repository of all money of the district shall be the county treasury of the county in which is located the largest area of table grape acreage of the district. Money collected for the use of the district in any other county in which a part of the district is located shall be transferred by the county treasurer upon warrant of the county auditor of the county in which the money was collected to the county treasurer of the county serving as repository for the district, in the same manner as prescribed for the disbursement of money held for a local district. Money derived from any county in which the district is located may be expended in any part of the district for the purposes authorized by this article, notwithstanding any other provision of law limiting the expenditure of any money to a specific area or county.
The county treasurer shall pay out money of the district only upon warrants of the county auditor drawn upon the order of the board of directors of the district signed by the chairperson or vice chairperson and attested to by the secretary. The county treasurer, with the approval of the board of supervisors, shall pay out the money of the district upon one master warrant of the county auditor drawn upon the order of the board of directors of the district and signed by the chairperson or vice chairperson and attested to by the secretary, to meet the district’s expenses, including salaries, at intervals approved by the board of supervisors.
The county treasurer shall report, in writing, on the first day of July, October, January, and March of each year, to the board of directors, the amount of money the treasurer then holds for the district, the amount of receipts since the last report, and the amounts paid out. Each report shall be verified and filed with the secretary of the district to whom it is addressed.
Acreage devoted exclusively to the growing of table grapes within a tract of land outside the district, but in the county in which the district is located, may be annexed to the district in the same manner provided in this article for the formation of the district.
Any two or more districts organized or existing under this article may be consolidated, whether or not the boundaries are coterminous, and whether or not the districts are located in the same county.
The board of directors may adopt a resolution that recites the fact of receipt and the willingness of the district to consolidate, and shall then send copies of the resolution to the board of directors of each of the other districts. The board shall send a certified copy of the resolution to the board of supervisors of the county in which is located the largest area of table grape acreage of the proposed consolidated district, and a copy of the resolution to the board of supervisors of each of the other counties in which is located any part of the proposed consolidated district.
The board of supervisors of the county in which is located the largest area of table grape acreage of the proposed consolidated district shall fix a time and place for hearing the proposal. Notice shall be given and the hearing conducted in the same manner and with the same effect as prescribed for the formation of a district pursuant to Sections 6047.70, 6047.71, 6047.72, 6047.73, and 6047.74.
If the board of supervisors determines that consolidation is feasible and in the best interests of the table grape acreage owners of the respective districts, it shall, by resolution duly adopted, declare the districts consolidated into one district, giving the consolidated district a name that includes the term “consolidated.” Certified copies of the resolution shall be filed with the Secretary of State and with the county recorder of each county in which is located any part of the consolidated district. Upon the filing, the districts are consolidated into a single consolidated district with all the rights, privileges, and powers of a district. The consolidated district shall succeed to all the funds and other property, and is subject to all the indebtedness, bonded and otherwise, of the districts consolidated. Each district that is included in the consolidated district shall continue in existence for the purpose of representation on the board of the consolidated district, and for the purpose of levying, assessing, and collecting assessments for district purposes. The board of the consolidated district is, however, the board of each district that is included in the consolidated district.
Upon the adoption of a resolution consolidating two or more districts, the board of supervisors of the county in which is located the largest area of table grape acreage shall immediately appoint a board of directors of at least five members, including at least one member from each of the districts that are included in the consolidated district, and at least two members from each county, if districts located in more than one county are included in the consolidated district. If any of the districts that are included in the consolidated district includes more than 15,000 acres of table grape acreage, the board of directors shall be increased by one additional director for each 10,000 acres, or fraction of 10,000 acres, in any one district that is included in the consolidated district. If the consolidated districts are located in more than two counties, the board of directors of the consolidated district shall have at least seven members.
The board of a consolidated district has all the duties, powers, purposes, responsibilities, and jurisdiction of the board of any other district organized pursuant to this article. The members of the consolidated board shall be appointed in the same manner and serve for the same term as the directors of any other district organized pursuant to this article.
Any district that has been included in a consolidated district may withdraw from the consolidated district and be reconstituted as a separate district by filing with the board of directors of the consolidated district a petition for withdrawal that is signed by the owners of not less than a majority, by area, of table grape acreage in the district. The board of directors of the consolidated district shall send the original petition to the board of supervisors of the county in which the withdrawing district is located, and a copy of the petition to the board of supervisors of each of the other counties in which is located any part of the consolidated district. Upon receipt of a petition for withdrawal, the board of supervisors of the county in which the withdrawing district is located shall fix a time and place for hearing the petition. Notice shall be given and the hearing conducted in the same manner and with the same effect as prescribed for the formation of a district pursuant to Sections 6047.70, 6047.71, 6047.72, 6047.73, and 6047.74. Upon withdrawal of a district, all moneys collected from the district for the use of the consolidated district, and all property purchased with these moneys, shall remain the property of the consolidated district.
Upon the filing of a petition with the board of supervisors that is signed by either (1) 50 percent or more of the table grape acreage owners who own 65 percent or more of the affected acreage or by (2) 65 percent or more of the table grape acreage owners who own 50 percent or more of the affected acreage requesting the dissolution of the district, the board of supervisors shall set a time and place for hearing on the petition, which shall not be less than 20 days, or more than 40 days, after the filing of the petition.
The board of supervisors shall give notice of the time and place fixed for the hearing upon the petition for dissolution.
The notice of hearing shall state all of the following:
That a petition has been filed requesting the dissolution of the district.
That the petition is available for inspection at the offices of the board of supervisors.
The time and place for the hearing.
That at the hearing protests against the dissolution of the district shall be considered by the board of supervisors.
Notice of the hearing shall be given by publication in a newspaper of general circulation published and circulated in the district.
The notice shall be published once a week for two successive weeks prior to the date set for the hearing.
If, at the hearing, a majority of the board of supervisors does not find a compelling reason to override the owners’ petition to dissolve the district, the board of supervisors shall by resolution dissolve the district.
The board of supervisors shall cause a certified copy of the resolution to be recorded in the office of the county recorder and shall file a certified copy of it with the Secretary of State. Thereupon, the district is dissolved for all purposes.
Upon dissolution, the right, title, and interest to property owned or controlled by the district that is situated within the corporate limits of any city shall vest absolutely in the city. If the property is situated outside the corporate limits of a city, it shall vest in the county in which the property is situated.
The board of supervisors is ex officio the governing body of the dissolved district. It may levy assessments and perform other acts solely for the purpose and as may be necessary to wind up the affairs of the district and to raise money for the payment of any outstanding indebtedness.
All claims and accounts against the district that have not been settled by the board within 90 days after the resolution is recorded pursuant to Section 6047.119 shall be presented to the board of supervisors of the county in which the district was located, or in the case of a consolidated district to the board of supervisors of the county in which is located the largest area of table grape acreage, and shall be passed and approved by the board of supervisors in the same manner as county claims and shall be paid out of the funds of the dissolved district.
If there are insufficient funds to discharge all claims and accounts brought pursuant to Section 6047.122, the board of supervisors shall, at the time of levying the next general county taxes, levy a special assessment upon the net acreage devoted to the growing of table grapes that benefited from the dissolved district in an amount sufficient to discharge all outstanding claims and accounts against the district. In the case of a consolidated district, the board of supervisors of each county in which a portion of the district is located shall levy a special assessment based upon the ratio that the proportion of outstanding claims and accounts bears to the net acreage of the district in each county.
Owners of wine grapes and raisin grapes and any other agricultural commodities may petition to become subject to any district established pursuant to this article. The petition shall adhere to all the requirements of this article and shall require the approval of the board of directors of the affected district. All provisions of this article are hereby incorporated in this section and are applicable to owners who become subject to a district established pursuant to this article as though set forth in full in this section unless a provision in this article expressly states that it is not applicable to this section.
ARTICLE 9. Hydrilla [6048. - 6049.]
The plant hydrilla (Hydrilla verticillata) is a noxious aquatic weed not native to the State of California. The Legislature hereby declares that the further introduction and spread of this serious aquatic weed pest would be detrimental to the state, causing irreparable damage to the agricultural industry and recreational use of streams, lakes, and waterways and further that the eradication of this aquatic weed pest is essential to the preservation of the environment.
Hydrilla can be introduced into the state in shipments of fish and aquatic plants for wholesale and retail sale within the state. It can become established when aquariums containing hydrilla are dumped into California’s streams, lakes, ponds, and waterways. Subsequent spread is rapid, both naturally and artificially.
It is unlawful to produce, propagate, harvest, possess, sell, or distribute hydrilla as such or incidental to the sale of fish, aquatic plants, or other hosts or possible carriers of hydrilla. The director may adopt quarantine or other regulations which prohibit the importation of hydrilla. Any violation of the regulations or of this section is an infraction punishable by a fine of not more than seventy-five dollars ($75) for the first offense and is a misdemeanor for a second or subsequent offense within three years of a prior conviction of a violation of this section or of the regulations. These penalty provisions do not preclude civil action as provided in Article 2 (commencing with Section 5021) of Chapter 1.
The director shall conduct an ongoing survey and detection program for hydrilla. Whenever and wherever hydrilla is discovered, the director shall immediately investigate the feasibility of eradication. If eradication is feasible, the director shall perform the eradication in cooperation with federal, city, county, and other state agencies taking those steps and actions the director deems necessary.
The department, with the cooperation of the University of California, the United States Department of Agriculture, or other agencies, may develop and implement biological control methods to eradicate or control the aquatic weed pest hydrilla (Hydrilla verticillata) in any area of the state, and may conduct studies for those purposes. When the development or implementation involves the use of fish, each individual program for development or implementation shall first be approved by the Department of Fish and Game.
CHAPTER 10. Cotton Pests Abatement Districts [6051. - 6085.]
Cotton pests abatement districts may be organized and established by the board of supervisors of the Counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino, San Diego, and Ventura, pursuant to the provisions of this chapter, and may exercise the powers expressly granted, or necessarily implied, by those provisions.
The district may include land in more than one of the counties listed in this section with the consent of the board of supervisors of the counties affected. The county which includes the majority of acreage in the district shall be designated the principal county. The agricultural commissioner and county officers in the principal county shall perform the acts required by the provisions of this chapter. District funds shall be deposited in the treasury of the principal county.
Chapter 6.6 (commencing with Section 54773) of Part 1 of Division 2 of the Government Code and the District Reorganization Act of 1965 do not apply to cotton pests abatement districts organized pursuant to this chapter.
In order to propose the organization of a cotton pests abatement district, a petition shall be presented to the board of supervisors of the county where the lands included within the proposed district are situated. The petition may consist of any number of separate instruments. The petition shall be signed by 25 percent of the cottongrowers or by 25 cottongrowers who grow cotton within the proposed district, whichever is less.
Upon receipt of the petition, the board of supervisors shall direct the agricultural commissioner to create a register of all cottongrowers growing cotton within the proposed district describing the net acreage of land devoted to the growing of cotton by each grower.
The commissioner shall file the cottongrowers register within 60 days of receipt of the order from the board of supervisors or by March 1st, whichever date is the later. The commissioner shall file with the register of cottongrowers a report and recommendation to the board of supervisors on whether conditions of disease, insect, or other pests of cotton warrant the board of supervisors in proceeding with the organization of the district.
The proponents of the formation of the district may, within 30 days of the receipt by the board of supervisors of the register of cottongrowers from the agricultural commissioner, file with the board of supervisors a petition for the establishment of the district signed by not less than 50 percent of the cottongrowers who grow not less than 65 percent of the cotton within the proposed district or not less than 65 percent of the cottongrowers who grow not less than 50 percent of the cotton grown within the proposed district.
The petition presented to the board of supervisors pursuant to Section 6052 shall satisfy the requirements of this section if it contains the number of signatures required by this section.
Upon receipt of the petition, the board of supervisors shall immediately refer the petition to the agricultural commissioner who shall examine it by reference to the register of cottongrowers, and shall, within 15 days after receiving the petition, return the petition to the board of supervisors with his or her certificate attached thereto certifying from the cottongrowers register that the petition qualifies as valid. The certificate of the agricultural commissioner shall be conclusive as to the sufficiency of the signatures on the petition.
At its meeting at which the certificate is received from the agricultural commissioner, or at its next meeting, regular or special, thereafter, the board of supervisors shall by order fix a time and place for hearing the petition, which time shall be not less than 20 days nor more than 40 days from the date of the order, and shall give notice of the hearing by publication of the time and place thereof with a general statement of the purpose of the proposed district, together with a description of the boundaries of the proposed district, once a week for two successive weeks immediately prior to the date fixed for the hearing, in a newspaper of general circulation in the county where the district will be situated.
At the hearing, the board of supervisors shall make such changes in the boundaries of the proposed district as they determine to be advisable, and shall determine and describe the boundaries of the district. The board of supervisors shall not modify the boundaries so as to exclude from the district any lands growing or capable of growing cotton which would be benefited by the formation of the district. The board of supervisors shall, at the hearing, hear all competent and relevant testimony, in support of the petition, and in opposition thereto, and shall determine whether the petition complies with the requirements of this chapter. The determination of the board of supervisors shall be entered upon the minutes of the meeting. No defect in the contents of the petition, or in the title to, or form of, the notice or signature, shall vitiate any proceeding thereon if the petition has a sufficient number of qualified signatures attached thereto.
The board of supervisors shall, at the next regular or special meeting following the hearing upon the question of the organization of the proposed district, meet and, if it determines that the evidence presented at the hearing was sufficient to warrant the organization of the district, shall, by order entered upon its minutes, declare the district duly organized under the name designated in the petition. The order shall describe the boundaries of the district so that all lands included in it may be known, and a copy of the order shall be filed for record in the office of the county recorder of the county where the district is situated.
The board of supervisors shall, at the meeting at which the order declaring the district to be organized is made, appoint a board of five directors to administer the affairs of the district. No person shall, at any time, be eligible to hold the office of director of any district unless he or she is a resident of the state, and a cottongrower, either individually or as a joint tenant of, or is a member of a partnership which owns, or is an officer of, a corporation which grows cotton within the district.
Each director so appointed shall, in the manner provided by law, give official bond for the faithful performance of his or her duties in the amount which shall be fixed by the board of supervisors, and shall subscribe the oath of office, and the bonds and oaths shall be filed with the county clerk of the county in which the district is situated. From and after the filing for record of the order declaring it organized and the appointment and qualifying of its board of directors, the organization of the district shall be complete.
Any cotton pests abatement district organized pursuant to this chapter may do all of the following:
Have perpetual succession.
Sue and be sued for all actions and proceedings in all courts and tribunals of competent jurisdiction.
Adopt a seal and alter it at pleasure.
Take by grant, purchase, gift, devise, lease or otherwise, and to hold, use, and enjoy, and to lease, or otherwise dispose of, real and personal property of every kind and description within or without the district necessary to the full and convenient exercise of its powers.
Prohibit the planting, growing, or maintenance of cotton plants within the boundaries of the district if it determines that such a prohibition is necessary for cotton pest control.
Charge fees for permits to plant cotton. The fees shall be used for the purpose of paying any obligation of the district and to accomplish the purposes of the district in the manner herein provided.
Make contracts, and to employ, except as otherwise provided herein, all persons, firms, and corporations necessary to carry out the purposes and the powers of the district, at such salary, wage, or other compensation as the board of directors shall determine.
Eradicate, remove, or prevent the spread of any disease, insect, or other pest injurious to cotton.
Eradicate, eliminate, remove, or destroy any cotton plants except those cotton plants which are growing under the conditions established by a valid permit.
Enter into or upon any land included in the district for the purpose of inspecting cotton growing thereon.
Commence and prosecute appropriate actions to have it adjudged that any cotton plant growing within the district infested with disease, insects, or pests injurious to cotton; or any cotton plant growing within the district without a valid permit; is a public nuisance, and have it decreed that the nuisance be abated.
The general control and management of each district shall be vested in a board of directors of five members. Directors shall be reimbursed for actual and necessary traveling expenses incurred by them in and about the performance of any duties required by the board of directors to be performed by them for the district. All claims presented by any director shall be subject to the approval of three other members of the board of directors.
The term of office of the directors shall be four years, except for those first appointed upon the organization of the district. The first appointees shall, immediately upon their appointment, classify themselves by lot so that the terms of three of them shall expire on the first day of May following the first biennial election of the district and the terms of the other two shall expire on the first day of May following the second biennial election of the district.
In the event of a vacancy in the board of directors either by resignation, death, or otherwise, the vacancy shall be filled by appointment by the board of supervisors and the person so appointed shall hold office for the remainder of the term of his or her predecessor.
The board of directors of each district shall have the power to appoint and to fix the compensation of a secretary of the district who shall keep all records and perform such other duties as are ordered by the board of directors.
Except as otherwise provided by this chapter, all acts of the board of directors shall be by resolution, and the adoption of a resolution shall require the affirmative vote of a majority of the board of directors.
The powers conferred upon any cotton pests abatement district and its board of directors by the provisions of this chapter shall not be construed to be in lieu of other disease, pest, or insect control statutes, but an addition thereto, and no act of any district or of any of its directors, agents, or employees shall operate to deprive or hinder the duly appointed or designated state, county, or federal authorities in conducting any operation for the eradication or control or prevention of any disease, insect, or pest in the district.
The agricultural commissioner of the county in which any district is situated, may, without fee or charge, supervise and direct, in accordance with the best known accepted methods as determined by the board of directors, all inspection, eradication, fumigation, and other activities undertaken by the district. The agricultural commissioner shall employ any and all assistants required in and about any such work, and the district shall bear and pay all expenses incurred in and about the work. Alternatively, the board of directors may employ a manager to carry out those duties and may employ such personnel as are necessary.
The board of supervisors in every county where a district has been organized and exists under the provisions of this chapter shall direct the agricultural commissioner to file with the board of supervisors on March 1st of each year a register of every cottongrower intending to grow cotton during the growing season immediately following that date, describing the net acreage of land to be devoted to the growing of cotton by each grower. The agricultural commissioner shall submit a preliminary estimate of the information required to be filed on March 1st in order for the board to prepare the district budget.
The agricultural commissioner shall submit a copy of the register to the clerk of the board of supervisors during election years.
The board of directors of each district shall, on or before the first Monday in February of each year, prepare and file with the board of supervisors of the county in which the district is situated, a budget setting forth all estimated expenditures of the district for the fiscal year commencing on the first day of the month of April of that fiscal year. The budget shall include any estimated expenditures for special benefits which will affect only certain properties. The board of directors may submit the budget or a revised budget to the board of supervisors later than the first Monday in February, but not later than March 15, if necessary in order to properly reflect changes in the acreage involved between the preliminary estimate and the register prepared pursuant to Section 6070 and the costs of programs therefor. A copy of the budget shall, at the same time, be filed with the auditor of the county.
The board of supervisors of the county may annually establish a fee for a permit to grow cotton within each cotton pests abatement district situated within the county and shall issue the permit to any cottongrower who satisfies the requirements of this chapter. The board of supervisors shall determine the amount of the fee by dividing the budget by the number of acres which will be devoted to cotton production during the ensuing growing season as reported on the register of cottongrowers submitted to the board of supervisors on March 1st of each year. Special benefits which are included in the budget shall be paid for by an additional permit fee. This additional fee shall be based on the estimated cost of the benefit to be conferred on the specific property.
The permit fee shall be entered in the minutes of the board of supervisors who shall advise the board of directors of the district of the fee per acre required for the issuance of a permit. The board of directors shall collect this fee from the applicant for a permit to grow cotton in the district. The fees shall be paid into the county treasury for the use of the district. The board of directors may provide for the method and time of payment of the fees which may be monthly, quarterly, or as otherwise determined to be reasonable. The board of directors may provide for the refund of fees, or appropriate part thereof, collected from growers who have not grown any cotton or have grown less than that for which they have a permit, insofar as such a refund would not adversely affect the programs being conducted by the district.
The board of directors shall, at the close of the district’s fiscal year, refund any money not required for continuing programs that remains in the district fund on a pro rata basis to the persons from whom the fees being refunded were collected.
The board of directors shall pay the county or counties in which it is located the costs of county services performed at the request of the district. The district shall also reimburse the county or counties for services performed pursuant to Sections 6053, 6054, 6056, 6057, 6058, 6059, 6060, 6070, 6076, 6077, and 6081.
Petitioners for the formation of a cotton pest abatement district shall be assessed a fee by the commissioner in the amount necessary to cover any costs incurred as a result of duties performed by the commissioner under this chapter which are preparatory to the formation of a district if a district is not formed.
The treasury of the county shall be the repository of all the moneys of the district. The county treasurer shall receive and receipt for all of these moneys, and place the same to the credit of the district. Any interest earned on the district funds shall be the property of the district. The treasurer shall be responsible upon his or her official bond for the safekeeping and disbursement, in the manner herein provided, of all moneys of any such district so held by him or her. The county treasurer shall pay out the moneys of the district only upon warrants of the county auditor drawn upon the order of the board of directors of the district signed by the president of the board and attested by the secretary. The county treasurer shall report in writing on the first day of July, October, January, and March of each year, to the board of directors of each district in his or her county, the amount of money he or she then holds for the district, the amount of receipts since his or her last report, and the amounts paid out; and each report shall be verified and filed with the secretary of the district to whom it is addressed.
The board of directors, when prohibiting the planting, growing, or maintenance of cotton plants within the boundaries of the district, shall notify persons affected by this action within 15 days. The grower within 30 days may appeal the decision of the board of directors to the board of supervisors, which may, by a majority decision, modify, or rescind the decision of the board of directors.
In each cotton pests abatement district, a biennial election shall be held in March of each odd-numbered year by the county elections official of the county in which a majority of the acreage in the district is contained. Notice of the election, and of the offices to be filled, shall be published in a newspaper of general circulation in the county once a week for three successive weeks before the first day of February. At the election a sufficient number of directors shall be elected to fill the places of those directors whose terms expire the first day of April immediately following the election.
The county elections official shall make declarations of candidacy available from between 113 and 88 days before the election. Any person eligible for the office of director, desiring to be a candidate for election, shall file a declaration with the county elections official on or before the 88th day before the election. The county elections official shall certify the qualified candidates and have ballots prepared and printed. The election shall be conducted, as nearly as practicable, in accordance with the general election laws of this state.
The county elections official on or after the 29th day before the election shall mail a ballot, an identification envelope, and a stamped and addressed return envelope to each cottongrower on the register submitted by the agricultural commissioner. The ballot shall indicate the number of votes and the number shall be written on the ballot by the clerk. Each cottongrower appearing on the register shall be entitled to one vote for each acre of cotton for which a valid permit to grow cotton is possessed for each office to be filled, or proposition to be voted upon, at that election. Cumulative voting is not authorized.
The ballot shall be printed in substantially the following form:
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NOTICE OF INCOMPLETE TEXT: The Cotton Pest Abatement District official ballot appears in the hard-copy publication of the chaptered bill. See Sec. 25, Chapter 221, Statutes of 2002 (p. 946).
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The ballot shall be placed in the identification envelope by the voter after the voter has indicated his or her choices. The identification envelope shall be sealed and signed by the voter. The identification envelope shall be returned to the county elections official in the sealed return envelope.
Ballots in order to be counted shall be received by the elections official not later than 12 o’clock noon of the first Tuesday after the first Monday in March and the return envelopes containing the ballots shall not be opened until that time. The elections official shall then open the return envelopes and deposit the ballot in its unopened envelope in a ballot box. After deposit of all identification envelopes received, the elections official shall open the ballot box and count the votes cast and certify the results of the election.
The returns of the election shall be reported to the board of directors of the district who shall meet on the Monday following the election and canvass the returns.
The persons declared elected shall take the oath of office and file their official bonds with the county elections official on or before the first day of April following their election and shall take office at noon of that day.
Any owner of land devoted to the growing of cotton in the county where the district is situated may file a petition for inclusion in the district with the board of directors of any cotton pests abatement district, and the land may, by order of the board of directors, be included within the district. A certified copy of each order of the board of directors including additional lands within the district shall be filed for record by the secretary of the district in the office of the county recorder of the county immediately upon passage by the board of directors, and each such order shall particularly describe each parcel of land to be included in the district.
The board of directors of each cotton pests abatement district shall hold a regular meeting at least once each month at the time and place in the district designated by resolution of the board; and the board of directors of each district shall prescribe the rules and regulations for the conduct of its meetings and for calling and giving notice of special meetings of the board.
Whenever the board of supervisors, by resolution, desires to dissolve the district, or whenever a petition, signed by not less than 25 percent of the cottongrowers within a district who are engaged in the growing of cotton, requesting the dissolution of the district is presented to and filed with the board of directors of the district, the board of directors shall submit the question of the dissolution of the district to the qualified voters of the district at the next biennial election of the district; provided, however, that the board of directors shall not be required to accept a petition for the dissolution of the district within 10 days preceding any biennial election of a district. If at the election 60 percent of the votes cast are in favor of the dissolution of the district, the directors of the district shall, within 60 days, file for recording in the office of the county recorder of the county a certified copy of an order declaring the district to be dissolved, and cease all activities, and shall proceed immediately to wind up the affairs of the district. The dissolution election procedures shall be the same as those contained in Sections 6076 and 6077.
At the expiration of 90 days after the election, the board of directors shall deliver on the basis of the ratio of the acreage devoted to cottongrowing in each county in the district all property and assets in their possession belonging to the district to the agricultural commissioner of each county in the district to be held and used for the benefit of cotton production. Any funds which may be in the hands of the county treasurer to the credit of the district or to which the district may thereafter become entitled shall be transferred to the credit of the county in which the district is located and shall be expended by the board of supervisors for the benefit of cotton production.
All claims and accounts against the district which have not been settled by the board of directors within 90 days after the election authorizing the dissolution of the district shall be presented to the board of supervisors of the county in which the district was located and shall be passed and approved by them in the same manner as county claims and shall be paid out of the funds of the dissolved district.
In the event that there are insufficient funds to discharge all claims and accounts brought pursuant to Section 6083, the board of supervisors shall, at the time of levying the next general county taxes, make a special assessment upon the net acreage devoted to the growing of cotton which was benefited from the dissolved district sufficient in amount to discharge all outstanding claims and accounts against the district. Properties which received special benefits for which additional permit fees where paid in the last year of district operation shall have an additional pro rata charge made upon the net acreage affected.
This chapter shall be known and may be cited as the Cotton Pests Abatement District Act.
CHAPTER 11. Caprifigs and Caprifig Trees [6101. - 6177.]
ARTICLE 1. Definitions [6101. - 6106.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Blanks” means caprifigs which are devoid of Blastophaga insects or galls that contain Blastophaga insects.
“Mamme” crop means the winter crop of caprifigs.
“Matured pollen” means pollen in a powdery condition which can be dusted or shaken out from the anthers in appreciable quantities.
“Profichi crops” means the crop of caprifigs which matures in June and July and is used to caprify or pollinate the main crop of the Smyrna type of figs.
“Spent figs” means caprifigs from which all the female Blastophaga insects have issued.
ARTICLE 2. Enforcement [6131. - 6134.]
The commissioner shall enforce this chapter.
The commissioner may enter any place where caprifigs are produced, packed, stored, shipped, delivered for shipment, or sold, and inspect them. He may seize and hold for evidence any caprifigs which are packed, shipped, delivered for shipment, or sold in violation of any provision of this chapter, and prosecute actions for any such violation.
The board of supervisors of any county may receive and accept on behalf of the county, any contribution or donation of money from a person or from any agency of this state or of the United States for the purpose of enforcing this chapter. Any money which is so received shall be credited to the budget of the commissioner and shall be expended solely for such enforcement.
It is unlawful for any person to willfully or otherwise interfere with the enforcement of any provision of this chapter.
ARTICLE 3. Caprifigs [6151. - 6157.]
Caprifigs, unless properly treated, contribute to, and are responsible for, the transmission of endosepsis and other plant diseases by the blastophaga which the figs contain.
Every person who owns, raises, uses, packs, ships, or delivers for shipment or sells any caprifigs of the mamme crop for use within the county, shall treat such figs by a method which is approved by the commissioner for the prevention or elimination of endosepsis or the transmission of endosepsis by the blastophaga in the figs.
If any caprifigs of the mamme crop are to be shipped or used outside the county, the person that owns, raises, uses, packs, ships or delivers them for shipment shall notify the commissioner of the county within which the figs are to be used of all of the following:
The shipment.
The nature of the shipment.
The name and residence of the consignee.
After the notice, the commissioner shall require the consignee to properly treat the figs for the prevention or elimination of endosepsis before using them.
It is unlawful for any person to pack, ship, deliver for shipment, or sell in any container any caprifigs of the profichi crop which violate any of the following:
Do not contain matured pollen.
Do not contain living Blastophaga insect in the adult stage.
Contain more than 25 percent of spent figs.
Contain more than 10 percent of blanks.
It is unlawful for any person to pack, ship, deliver for shipment or sell in any container any caprifigs of the mamme crop, which contain more than 25 percent of spent figs, or more than 10 percent of blanks.
ARTICLE 4. Caprifig Trees [6171. - 6177.]
Caprifig trees, unless properly controlled and regulated under supervision, constitute a menace because they are a source of infection and pests.
Except as otherwise provided by Section 6173, in the interest of the public welfare and general prosperity of the state and to provide for the control, eradication, elimination, and prevention of endosepsis and other plant diseases, all caprifig trees used for shade, ornamental, or decorative purposes, and caprifig trees in, or associated with, any fig orchard which produces calimyrna or other Smyrna-type figs that aggregate in number more than one and one-half percent of the fig trees in the orchard, are unlawful and a public nuisance.
Every commercial grower of calimyrna or other Smyrna-type fig may maintain at least one caprifig tree in connection with his planting.
The commissioner shall notify the owner of any fig tree which is a public nuisance under Section 6172 to graft or destroy it within a time which is specified in the notice.
He may furnish to the owner, at the time of serving the notice, instructions for application of methods by the owner which are best designed to accomplish the purposes of the notice.
If the owner does not destroy or graft the fig tree within the time which is specified in the notice, the commissioner shall cause the grafting or destruction of the tree, at the expense of the owner, in a summary manner.
A calimyrna grower, regardless of the size of his holdings, shall follow the standard procedures for cleanup of caprifig trees by picking the mamme caprifigs before the wasps begin to issue. He shall treat the mamme caprifigs which are picked with a fungicide, according to recognized procedures.
The presence of both mamme and set profichi figs in the caprifig trees at the same time is a public nuisance. The caprifigs, or the trees, or both, shall be destroyed at the owner’s expense by the owner or by the commissioner, pursuant to this article, before the profichi caprifig crop matures.
CHAPTER 12. Winegrape Pest and Disease Control District Law [6200. - 6290.]
ARTICLE 1. Findings and Definitions [6200. - 6202.]
The Legislature finds and declares all of the following:
California is the leading producer of wine in the United States, accounting for 72 percent of all wine, foreign and domestic, consumed in this country.
Winegrapes are grown in virtually every county for processing by more than 800 wineries located throughout the state.
California grows more than 327,455 acres of winegrapes producing 2,570,707 tons of grapes per year valued at more than seven hundred eighteen million dollars ($718,000,000), as of 1990, with a direct and indirect impact on the state’s economy totaling more than eight billion six hundred million dollars ($8,600,000,000).
Destructive pests and diseases, including phylloxera, pose a significant and imminent threat to the state’s important grape and wine industry.
Phylloxera has already infested grape acreage in many California counties, including Napa and Sonoma, resulting in losses totaling two billion dollars ($2,000,000,000) to growers and the wine industry.
The state has an interest in protecting its agricultural products from further destruction by phylloxera and other harmful pests and diseases.
To avoid a potentially catastrophic loss to one of California’s most important industries, the Legislature declares that this chapter is in the interest of the public health and welfare.
The Legislature further declares that it is in the interest of the public health and welfare that the districts authorized to be created by this chapter not duplicate existing services already being provided to grape growers by the University of California Cooperative Extension Farm Advisor or the county agricultural commissioners.
This chapter shall be known and may be cited as the Winegrape Pest and Disease Control District Law.
It is the purpose of this chapter to make available a procedure for the organization, operation, government, and dissolution of districts to respond to, manage, and control the effects of the spread of the phylloxera pest, and other pests that attack winegrape plants, and to collect and disseminate to winegrape producers in the district all relevant information and scientific studies concerning the pest or pests, as well as to chart and determine the extent and location of any infestations.
Division 3 (commencing with Section 56000) of Title 5 of the Government Code does not apply to districts organized pursuant to this chapter.
Unless the context otherwise requires, the definitions in this section govern the construction of this chapter.
“Board” or “board of directors” means the board of directors of a district.
“District” means a winegrape pest and disease control district organized pursuant to this chapter.
“Owner” includes joint owner, coowner, guardian, executor, administrator, or any other person that holds property in a trust capacity under court appointment.
“Phylloxera,” Daktulosphaira vitifoliae, is an aphid-like pest in the family of Phylloxeridae that attacks winegrape plants (Vitus sp.).
“Winegrapes” means grapes produced that are intended to be converted from their fresh form into grape juice, grape concentrate, wine, or products thereof, including, but not limited to, high proof and brandy produced from winegrapes.
ARTICLE 2. Formation of Districts [6210. - 6223.]
Proceedings for the formation of a district within any county shall be commenced by a petition that is either of the following:
Signed by 50 percent or more of the growers who own 65 percent or more of the affected land.
Signed by 65 percent or more of the growers who own 50 percent or more of the affected land.
The petition shall be addressed to, and filed with, the board of supervisors of the county.
The petition may be filed in sections, each of which shall comply with all the requirements for a petition, except that a section need not contain the total number of signatures required for the petition.
Signatures to the petition may be withdrawn at any time before it has been acted upon by filing with the clerk of the board of supervisors a declaration signed by the petitioner that states that it is the intention of the petitioner to withdraw his or her signature from the petition.
The petition shall state the name of the proposed district and shall set forth its boundaries or describe the lands to be included.
It is a sufficient designation of the boundaries of a proposed district to recite that all the grape acreage in the county is to be included in the district, or that all the grape acreage in a designated area within the county is to be included in the district.
If either designation is used, the outside boundary of the area so designated is the boundary of the district, and the district shall include all area within the outside boundary.
Upon the presentation and filing of a petition, the board of supervisors shall refer the petition to the county agricultural commissioner for the preparation of a register of owners of winegrape acreage within the proposed district, and for an investigation and report.
The agricultural commissioner shall create a register of all winegrape acreage owners within the proposed district describing the net acreage of land devoted to the growing of winegrapes by each grower. The commissioner shall file with the register a report and recommendation to the board of supervisors on whether conditions of the phylloxera or other pest or disease warrant the board of supervisors proceeding with the organization of the district.
The board of supervisors shall fix a time and place for the hearing of the petition.
The hearing shall not be less than 20 days, or more than 40 days, after the filing of the petition with the board of supervisors.
The board of supervisors shall order the clerk of the board of supervisors to give notice of the time and place fixed for the hearing upon the petition.
The notice of hearing shall do all of the following:
State the name of the district and that it is being formed for the control of winegrape pests and diseases.
State the petition is available for inspection at the office of the clerk of the board of supervisors.
Designate the boundaries of the proposed district in substantially the same way that they are described in the petition.
State the time and place for the hearing.
State that at the hearing protests will be considered by the board of supervisors.
State that requests in writing for the exclusion of lands from, or the inclusion of lands in, the proposed district, will be heard and considered by the board of supervisors.
Notice of the hearing shall be given by publication in a newspaper of general circulation published and circulated in the district.
The notice shall be published once a week for two successive weeks prior to the date set for the hearing.
At the hearing, the report of the county agricultural commissioner shall be received. Protests may be made orally or in writing by any person interested in the formation of the proposed district. Any protest that pertains to the regularity or sufficiency of the proceedings shall be in writing and shall clearly set forth the irregularities and defects to which objection is made. All written protests shall be filed with the clerk of the board of supervisors on or before the time fixed for the final hearing. The hearing may be continued from time to time, not to exceed 60 days.
At the hearing, any owner of winegrape acreage in the proposed district may present to the board of supervisors a request, in writing, for the exclusion of that land or any part of that land from the proposed district upon a showing that the land or part of that land will not be benefited by the activities of the proposed district. Factors that the board of supervisors may consider in its determination to exclude shall include an affidavit from the landowner stating that the land has already been affected by phylloxera or other winegrape plant pests or diseases and the winegrape plants have been removed from the land, that more than 66 percent of the subject parcel is planted with non-vinifera-crossed rootstock, including, but not limited to, St. George, S04, 5C, or 5BB rootstock, or that the subject parcel does not have a pest or disease problem that can be controlled by the district. Any owner of winegrape acreage outside the proposed district may present to the board of supervisors a request in writing for inclusion of that land in the proposed district.
If the board of supervisors determines that the petition does not comply with the requirements of law, the matter may be dismissed without prejudice to present a new petition covering the same matter. A finding by the board of supervisors in favor of the sufficiency of the petition and notice is final and conclusive against all persons except the state in a proceeding brought by the Attorney General within one year of the date of the making of the order establishing and describing the boundaries of the district.
If the board of supervisors determines that the project is feasible and in the interest of the winegrape growers of the county, the board of supervisors shall, by order entered in its minutes, declare the district duly organized under the name designated in the petition for the formation of the district.
The order shall describe the territory included in the district and, if the board of supervisors does not exclude or include land pursuant to Section 6223, it is a sufficient description of the territory to describe the boundaries in substantially the same way as they are described in the petition.
A copy of the order duly certified by the clerk of the board of supervisors shall be filed for record in the office of the county recorder of the county in which the district is situated.
In determining the boundaries of the district, the board of supervisors shall exclude from the district any winegrape acreage that it finds will not be benefited by the proposed project, and it may include in the district any lands that it finds will be benefited if it also finds it will be in the interest of the district to include these lands. The inclusion may be upon application of the owner or, without the owner’s application, upon giving the owner notice of the proposed inclusion and an opportunity for a hearing on the inclusion.
Notice of inclusion shall be mailed, postage prepaid, by the clerk of the board of supervisors, to the address of the owner of the land as shown by the last equalized county assessment roll, and to any person that has filed with the clerk that person’s name and address and description of land in which he or she has either a legal or equitable interest. The notice shall describe the land proposed to be included, and shall state the time and place at which objections to the inclusion will be heard.
ARTICLE 3. Organization of Districts [6230. - 6237.]
Upon the adoption of the order of organization, the board of supervisors shall immediately appoint a board of directors of five members to administer the affairs of the district.
In order to be eligible to be a director of the district, a person shall be a citizen of the United States and of this state, and an owner of lands included in the district that are devoted, in whole or in part, to the growing of the product for which the district is established.
Upon his or her appointment, each director shall, in the manner provided by law, subscribe the oath of office and file the oath with the county clerk.
From and after the filing for record of the order of the board of supervisors declaring the district organized, and the appointment and qualification of its first board of directors, the organization of the district is complete. The district shall operate for a period of five years from the date of its organization, and shall cease to exist after five years unless the district is reauthorized and approved by the board of supervisors.
The board of directors shall hold a public hearing six months prior to termination of its initial organization or last reauthorization to determine whether the conditions of the phylloxera or other pest or disease determined pursuant to Section 6214 warrant the reauthorization of the district for an additional five years. The notice of hearing shall state the name of the district and that consideration is being given to reauthorizing the district for an additional five years, the boundaries of the district, and the time and place for the hearing. Notice of the hearing shall be given as provided in Sections 6217 and 6218. The board of directors shall submit the record of the hearing and its recommendation to the board of supervisors within 90 days of the hearing. The board of supervisors shall approve or reject the recommendation; if it rejects the recommendation, the board of supervisors shall return the report accompanied by its reasons for the rejection to the board of directors within 30 days of receipt. The board of directors may thereafter address the reasons for rejection by the board of supervisors and submit an amended report and new recommendations for reauthorization for approval or rejection by the board of supervisors, unless the district has ceased to exist pursuant to subdivision (a).
Immediately after the organization of the district, the directors shall meet and organize as a board and shall elect a chairperson, vice chairperson and secretary from among their own number.
The chairperson shall call and preside at all meetings of the board, sign all warrants drawn on the county treasurer, and all contracts and other documents, and the minutes of all meetings at which the chairperson is present. In case of the chairperson’s absence from a meeting, the vice chairperson shall act as chairperson pro tempore. The vice chairperson may sign warrants in place of the chairperson if the chairperson is absent from a meeting or unavailable. The secretary shall give notice of and keep the minutes of all meetings and prepare and have custody of all records and papers, and have custody of the seal of the district. The secretary shall attest all warrants drawn on the county treasury, all contracts and other documents, and shall sign the minutes of all meetings at which he or she is present. The secretary shall prepare the annual reports and any other reports required by the board and shall prepare all notices and all calls for bids.
The members of the board shall serve for terms of one year, or for a longer term as determined by the board of supervisors, and until the appointment and qualification of their successors.
Upon the expiration of the term of any member of the board, the board of supervisors shall appoint the successor. Vacancies shall be filled by the board of supervisors for the unexpired term.
The members of the board shall not receive any compensation for their services, but may be reimbursed for their actual and necessary expenses, when claims for those expenses have been approved by the board.
ARTICLE 4. Powers and Duties of the District [6240. - 6246.]
The district may do all of the following:
Sue and be sued in all actions and proceedings in all courts and tribunals of competent jurisdiction.
Adopt a seal and alter it at pleasure.
Take by grant, purchase, gift, devise, lease, or otherwise, and hold, use and enjoy, and lease, or otherwise dispose of, real and personal property of every kind and description within or without the district necessary to the full and convenient exercise of its powers.
Cause assessments to be levied, as provided in Article 5 (commencing with Section 6250), to pay any obligation of the district and to accomplish the purposes of the district in the manner provided in this chapter.
Make contracts, and employ, except as otherwise provided in this chapter, all persons, firms, and corporations necessary to carry out the purposes and the powers of the district, and at any salary, wage, or other compensation as the board of directors shall determine.
Respond to the effects of, the spread of phylloxera and other winegrape plant pests and diseases and collect and disseminate to winegrape growers in the district all relevant information and scientific studies concerning the pest or pests or diseases, as well as to chart and determine the extent and location of any infestations.
With reasonable advance notice in writing to the landowner, as determined by the district, enter into or upon any land included within the boundaries of the district for the purpose of inspecting the winegrape plants and any other host plants and fruit growing on them.
Perform any and all acts, either within or outside the district, necessary or proper to fully and completely carry out the purposes for which the district is organized.
Every district formed pursuant to this chapter has all of the powers prescribed by Section 6240 and other provisions of this chapter, regardless of any language in the petition for formation for any district or in any of the proceedings leading to the formation that would otherwise limit the power of the district.
The county agricultural commissioner of the county in which the district is located shall, upon request of the board, assist the district to the extent possible in all activities undertaken by the district for the control of phylloxera or other winegrape plant pests or diseases.
The board shall, immediately after its appointment and after public hearing, formulate an effective plan and adopt a budget of expenditures for the forthcoming fiscal year. At a public hearing on the plan and the budget, any owner of winegrape acreage included in the district may make written or oral protest against the budget or any item in it. The plan and the budget, as thereafter approved by the board, shall be the plan and the budget of the district for the forthcoming fiscal year.
There may be added to the budget for the first fiscal year of the operation of the district an amount not to exceed 20 percent of the total amount of the budget to cover the preliminary expenses of the district, including, but not limited to, the costs of formation, before the beginning of the first fiscal year.
For each fiscal year subsequent to the first year of operation of the district, the board shall adopt the final budget therefor in the same manner and at the same time that the budget for the first fiscal year was adopted.
The board of supervisors may charge the district for any expenses incurred by the county in connection with the proceedings for the formation of the district, and the district shall reimburse the county from assessments levied for those expenses.
ARTICLE 5. Levy of Assessments for District Purposes [6250. - 6259.]
The county assessor, in making the annual assessment of property included in the district each and every year after the organization of the district, shall identify any parcel of real property with one acre or more of winegrape plants.
Whenever acreage within the district is planted with winegrape plants in such a fashion as to qualify as winegrape acreage, the acreage is subject to assessment as provided in this article.
After the district has been formed, an owner of winegrape acreage in the district may present to the board a request in writing for the exclusion of that land or any part of the land from the district upon a showing that the land or part of the land will not be benefited by the activities of the district. Factors that the board may consider in its determination for exclusion shall include an affidavit from the owner that the land has already been affected by phylloxera or other winegrape plant pests and the winegrape plants have been removed from the land, more than 66 percent of the subject parcel is planted with non-vinifera-crossed rootstock, including, but not limited to, St. George, S04, 5C or 5BB rootstock, or that the subject parcel does not have a pest or disease problem that can be controlled by the district.
After receipt of the request, the board shall cause an investigation of the parcel of land to be made and, if the board determines that the land or part of the land will not be benefited by the activities of the district, the board shall exclude the winegrape acreage from the district and immediately certify this fact to the county assessor and the county auditor or tax collector.
Any owner of winegrape acreage outside of, or otherwise not included in, the district may present to the board a request in writing for inclusion of the land in the district.
The board shall, on or before the first Monday in April of each year, file with the board of supervisors a budget that sets forth all estimated expenditures of the district for the fiscal year commencing on the first day of July. A copy of the budget shall also, at the same time, be filed with the auditor of the county.
The board of supervisors may, by ordinance or by resolution, adopted after notice and hearing, determine and levy an assessment for winegrape pest and disease control activities for any of the following purposes:
Responding to, managing, and controlling the effects of the spread of the phylloxera pest and other pests that attack winegrape plants.
Collecting and disseminating to winegrape producers in the district all relevant information and scientific studies concerning the pest or pests.
Charting and determining the extent and location of any infestations.
The annual assessment shall not exceed five dollars ($5) per planted acre.
The board of supervisors shall cause to be prepared and filed with the clerk of the board of supervisors a written report that contains all of the following information:
The duration of the assessment.
The basis of the assessment.
The schedule of the assessment.
A description specifying the requirements for written and oral protests, and the protest threshold necessary for requiring abandonment of the proposed assessment pursuant to subdivision (f).
The board may establish zones or areas of benefit within the district, and may restrict the imposition of assessments to areas lying within one or more of the zones or areas of benefit established within the district.
The assessment shall be levied on each parcel within the boundaries of the district, zone, or area of benefit.
The board of supervisors shall comply with the notice, protest, and hearing procedures in Section 53753 of the Government Code.
In addition, the mailed notice shall include the name of the district, the return address of the sender, the amount of the assessment for the initial fiscal year, the maximum amount of the assessment that may be levied during any fiscal year and the name and telephone number of the person designated by the board of supervisors to answer inquiries regarding the protest proceedings.
The assessment authorized to be assessed and levied is hereby declared to be in the nature of a special assessment, and the Legislature hereby finds that the owners of all winegrape plants will be benefited by the district to the same extent and in the same manner regardless of the age of the plants. The assessments authorized by this article to be assessed and levied shall be assessed and levied regardless of the age of the plants growing on the land.
The assessment so levied shall be computed and entered upon the assessment roll by the county auditor, and if the supervisors fail to levy the assessment as required, the auditor shall do so. The assessment shall be collected at the same time, and in the same manner as, and together with and not separate from, general county taxes, and when collected shall be paid into the county treasury for the use of the district.
The general provisions of the laws of this state, prescribing the manner of levying and collecting county taxes and the duties of the several county officers with respect to levying and collecting county taxes, are, so far as they are applicable and not in conflict with the specific provisions of this article, hereby adopted and made a part of this article. The several county officers thus referred to shall be liable upon their several official bonds for the faithful discharge of the duties imposed upon them by this chapter.
The revenue from the assessments imposed pursuant to this chapter by the district are trust funds and shall be encumbered only for the purposes for which the district is formed and for the benefit of the property assessed. The district shall expend the minimum amount necessary for overhead and other administrative costs. No district funds shall be donated, loaned, or transferred to any other local agency or to the state for any purpose.
The county treasury shall be the repository of all the moneys of the district. The county treasurer shall receive and receipt for all those moneys, and place the same to the credit of the district. The county treasurer shall be responsible upon his or her official bond for the safekeeping and disbursement, in the manner provided in this article, of all moneys of the district so held.
If a consolidated district includes parts of two or more counties, the repository of all money of the district shall be the county treasury of the county in which is located the largest area of the district. Money collected for the use of the district in any other county in which a part of the district is located shall be transferred by the county treasurer upon warrant of the county auditor of the county in which the money was collected to the county treasurer of the county serving as repository for the district, in the same manner as prescribed for the disbursement of money held for a local district. Money derived from any county in which the district is located may be expended in any part of the district for the purposes authorized by this chapter, notwithstanding any other provision of law limiting the expenditure of any such money to a specific area or county.
The county treasurer shall pay out money of the district only upon warrants of the county auditor drawn upon the order of the board of directors of the district signed by the chairperson or vice chairperson and attested to by the secretary. The county treasurer, with the approval of the board of supervisors, shall pay out the money of the district upon one master warrant of the county auditor drawn upon the order of the board of directors of the district and signed by the chairperson or vice chairperson and attested to by the secretary, to meet the district’s expenses, including salaries, at such intervals as is approved by the board of supervisors.
The county treasurer shall report, in writing, on the first day of July, October, January, and March of each year, to the board of directors, the amount of money the treasurer then holds for the district, the amount of receipts since the last report, and the amounts paid out. Each report shall be verified and filed with the secretary of the district to whom it is addressed.
ARTICLE 6. Inclusion of Lands [6260. - 6260.]
Lands devoted exclusively to the growing of winegrapes within a tract of land outside the district, but in the county in which the district is located, may be annexed to the district in the same manner provided in this chapter for the formation of the district.
ARTICLE 7. Consolidation [6270. - 6276.]
Any two or more districts organized or existing under this chapter may be consolidated, whether or not the boundaries are coterminous, and whether or not the districts are located in the same county.
The board of directors may adopt a resolution that recites the fact of receipt and the willingness of the district to consolidate, and shall then send copies of the resolution to the board of directors of each of the other districts. The board shall send a certified copy of the resolution to the board of supervisors of the county in which is located the largest area of winegrape acreage of the proposed consolidated district, and a copy of the resolution to the board of supervisors of each of the other counties in which is located any part of the proposed consolidated district.
The board of supervisors of the county in which is located the largest area of winegrape acreage of the proposed consolidated district shall fix a time and place for hearing the proposal. Notice shall be given and the hearing conducted in the same manner and with the same effect as prescribed for the formation of a district pursuant to Article 2 (commencing with Section 6210).
If the board of supervisors determines that consolidation is feasible and in the best interests of the winegrape growers of the respective districts, it shall, by resolution duly adopted, declare the districts consolidated into one district, giving the consolidated district a name that includes the term “consolidated.” Certified copies of the resolution shall be filed with the Secretary of State and, for record, with the county recorder of each county in which is located any part of the consolidated district. Upon the filing, the districts are consolidated into a single consolidated district with all the rights, privileges, and powers of a district. The consolidated district shall succeed to all the funds and other property, and is subject to all the indebtedness, bonded and otherwise, of the districts consolidated. Each district that is included in the consolidated district shall continue in existence for the purpose of representation on the board of the consolidated district, and for the purpose of levying, assessing, and collecting assessments for district purposes. The board of the consolidated district is, however, the board of each district that is included in the consolidated district.
Upon the adoption of a resolution consolidating two or more districts, the board of supervisors of the county in which is located the largest area of winegrape acreage shall immediately appoint a board of directors of at least five members, including at least one member from each of the districts that are included in the consolidated district, and at least two members from each county, if districts located in more than one county are included in the consolidated district. If any of the districts that are included in the consolidated district includes more than 15,000 acres of winegrape acreage, the board of directors shall be increased by one additional director for each 10,000 acres, or fraction of 10,000 acres, in any one district that is included in the consolidated district. If the consolidated districts are located in more than two counties, the board of directors of the consolidated district shall have at least seven members.
The board of a consolidated district has all the duties, powers, purposes, responsibilities, and jurisdiction of the board of any other district organized pursuant to this chapter. The members of the consolidated board shall be appointed in the same manner and serve for the same term as the directors of any other district organized pursuant to this chapter.
Any district that has been included in a consolidated district may withdraw from the consolidated district and be reconstituted as a separate district by filing with the board of directors of the consolidated district a petition for withdrawal that is signed by the owners of not less than 51 percent, by area, of winegrape land in the district. The board of directors of the consolidated district shall send the original petition to the board of supervisors of the county in which the withdrawing district is located, and a copy of the petition to the board of supervisors of each of the other counties in which is located any part of the consolidated district. Upon receipt of a petition for withdrawal, the board of supervisors of the county in which the withdrawing district is located shall fix a time and place for hearing the petition. Notice shall be given and the hearing conducted in the same manner and with the same effect as prescribed for the formation of a district under Article 2 (commencing with Section 6210). Upon withdrawal of a district, all moneys collected from the district for the use of the consolidated district, and all property purchased with these moneys, shall remain the property of the consolidated district.
ARTICLE 8. Dissolution of Districts [6280. - 6290.]
Upon the filing of a petition with the board of supervisors, signed by the owners of not less than 60 percent by area of the winegrape acreage in the district, requesting the dissolution of the district, the board of supervisors shall set a time and place for hearing on the petition, which shall not be less than 20 days, or more than 40 days, after the filing of the petition.
The board of supervisors shall give notice of the time and place fixed for the hearing upon the petition for dissolution.
The notice of hearing shall state all of the following:
That a petition has been filed requesting the dissolution of the district.
That the petition is available for inspection at the offices of the board of supervisors.
The time and place for the hearing.
That at the hearing protests against the dissolution of the district shall be considered by the board of supervisors.
Notice of the hearing shall be given by publication in a newspaper of general circulation published and circulated in the district.
The notice shall be published once a week for two successive weeks prior to the date set for the hearing.
If, at the hearing, a majority of the membership of the board of supervisors find that the dissolution of the district will benefit the winegrape industry of the county, it shall, by resolution, dissolve the district.
The board of supervisors shall cause a certified copy of the resolution to be recorded in the office of the county recorder and shall file a certified copy of the same with the Secretary of State. Thereupon, the district is dissolved for all purposes.
Upon dissolution, the right, title, and interest to property owned or controlled by the district that is situated within the corporate limits of any city shall vest absolutely in the city. If the property is situated outside the corporate limits of a city, it shall vest in the county in which the property is situated.
The board of supervisors is ex officio the governing body of the dissolved district. It may levy such assessments and perform such other acts as may be necessary to wind up the affairs of the district and to raise money for the payment of any outstanding indebtedness.
All claims and accounts against the district that have not been settled by the board within 90 days after the resolution is recorded pursuant to Section 6286 shall be presented to the board of supervisors of the county in which the district was located, or in the case of a consolidated district to the board of supervisors of the county in which is located the largest area of winegrape acreage, and shall be passed and approved by the board of supervisors in the same manner as county claims and shall be paid out of the funds of the dissolved district.
If there are insufficient funds to discharge all claims and accounts brought pursuant to Section 6289, the board of supervisors shall, at the time of levying the next general county taxes, levy a special assessment upon the net acreage devoted to the growing of winegrapes that benefited from the dissolved district in an amount sufficient to discharge all outstanding claims and accounts against the district. In the case of a consolidated district, the board of supervisors of each county in which a portion of the district is located shall levy a special assessment based upon the ratio that the proportion of outstanding claims and accounts bears to the net acreage of the district in each county.
CHAPTER 13. Napa County Winegrape Pest and Disease Control District Law [6292. - 6299.]
ARTICLE 1. Findings and Definitions [6292. - 6292.3.]
The Legislature finds and declares all of the following:
California is the leading producer of wine in the United States, accounting for 91 percent of total United States wine production and 72 percent of total wine sales in the United States.
Winegrapes are grown in virtually every county for processing by more than 800 wineries located throughout the state.
California grows more than 554,000 acres of winegrapes producing 3.3 million tons of grapes per year valued at more than one billion nine hundred million dollars ($1,900,000,000), with a direct and indirect impact on the state’s economy totaling more than thirty-three billion dollars ($33,000,000,000). Napa Valley contributes more than four billion dollars ($4,000,000,000) to that total.
Destructive pests and diseases, including winegrape pests and diseases, pose a significant and imminent threat to California’s important grape and wine industry.
The State of California has a great economic interest in protecting its agricultural products from further destruction by the Pierce’s disease vector, the glassy-winged sharpshooter, and other harmful winegrape pests and diseases, which may occur in the future.
Pierce’s disease has already infested grape growing acreage in many California counties, including Napa County, resulting in devastating losses to growers and the wine industry.
As a known vector for Pierce’s disease, the glassy-winged sharpshooter has been determined to carry and spread Pierce’s disease to many forms of California agriculture, usually with complete destruction to the infected crop. This destructive effect of the disease has been determined by experts in the viticulture field to be especially true with infected winegrapes.
To avoid a potentially catastrophic loss to one of California’s most important industries, the Legislature declares that this chapter is in the interest of the public health and welfare.
This article is not intended to establish a precedent, or to supersede, reduce, or in any way alter government funding related to Pierce’s disease and other pests in this state.
The purposes of this article are enhanced by the many and varied efforts of the growers and marketers of other commodities related to this bacteria and its vectors.
The Legislature further declares that it is in the interest of the public health and welfare that the creation of districts by this chapter not duplicate existing services already being provided to grape growers by the University of California Cooperative Extension Farm Advisor or the county agricultural commissioner.
This chapter shall be known and may be cited as the Napa County Winegrape Pest and Disease Control District Law.
It is the purpose of this chapter to make available a procedure for the organization, operation, government, and dissolution of districts to assist in the funding of the inspection, detection, and education of Pierce’s disease as stated in the Napa County Glassy-Winged Sharpshooter Workplan, as approved by the California Department of Food and Agriculture and accepted by the Napa County Board of Supervisors, to prevent the spread of Pierce’s disease by the glassy-winged sharpshooter. Additionally, it is the purpose of this chapter to address other pests and diseases that attack winegrape plants, and to collect and disseminate to winegrape producers in the district all relevant information and scientific studies concerning pest or pests, as well as to chart and determine the extent and location of any infestations.
Division 3 (commencing with Section 56000) of Title 5 of the Government Code does not apply to districts organized pursuant to this chapter.
Unless the context otherwise requires, the definitions in this section govern the construction of this chapter.
“Board” or “board of directors” means the board of directors of a district.
“District” means a winegrape pest and disease control district organized pursuant to this chapter.
“Owner” includes joint owner, coowner, guardian, executor, administrator, or any other person or entity that holds property in a trust capacity under court appointment.
“Winegrape pest and disease” means any pest or disease that is determined by the California Department of Food and Agriculture or the County Agricultural Commissioner to be a threat to the growing or viability of winegrapes, as defined in this section, or as defined in Section 5006.
“Winegrapes” means grapes produced that are intended to be converted from their fresh form into grape juice, grape concentrate, wine, or any products thereof, including, but not limited to, high proof and brandy produced from winegrapes.
“Winegrape growing acreage” means any parcel of real property with one acre, or more, of winegrape plants, grapes or grape products, regardless of the use of a grape product or products.
ARTICLE 2. Formation of Districts [6293. - 6293.13.]
Proceedings for the formation of a district within Napa County shall be commenced by a petition that is either of the following:
Signed by 50 percent or more of the owners of 65 percent or more of the affected land.
Signed by 65 percent or more of the owners of 50 percent or more of the affected land.
The petition shall be addressed to, and filed with, the board of supervisors of the county.
The petition may be filed in sections, each of which shall comply with all the requirements for a petition, except that a section need not contain the total number of signatures required for the petition.
Signatures to the petition may be withdrawn at any time before it has been acted upon by filing with the clerk of the board of supervisors a declaration signed by the petitioner that states that it is the intention of the petitioner to withdraw his or her signature from the petition.
The petition shall state the name of the proposed district and shall set forth its boundaries or describe the lands to be included.
It is a sufficient designation of the boundaries of a proposed district to recite that all the winegrape growing acreage in the county is to be included in the district, or that all the winegrape growing acreage in a designated area within the county is to be included in the district.
If either designation is used, the outside boundary of the area so designated is the boundary of the district, and the district shall include all winegrape growing acreage within the outside boundary.
Upon the presentation and filing of a petition, the board of supervisors shall refer the petition to the county agricultural commissioner for the preparation of a register of owners of winegrape growing acreage within the proposed district, and for an investigation and report.
The agricultural commissioner shall create a register of all winegrape growing acreage owners within the proposed district describing the net acreage or size of land devoted to the growing of winegrapes. The commissioner shall file with the register a report and recommendation to the board of supervisors on whether conditions of Pierce’s disease, the glassy-winged sharpshooter, or other pest or disease warrant the board of supervisors proceeding with the organization of the district.
The board of supervisors shall fix a time and place for the hearing of the petition.
The hearing shall not be less than 20 days, or more than 40 days, after the filing of the petition with the board of supervisors.
The board of supervisors shall order the clerk of the board of supervisors to give notice of the time and place fixed for the hearing upon the petition.
The notice of hearing shall do all of the following:
State the name of the district and that it is being formed for the control of winegrape pests and diseases pursuant to this chapter.
State the petition is available for inspection at the office of the clerk of the board of supervisors.
Designate the boundaries of the proposed district in substantially the same way that they are described in the petition.
State the time and place for the hearing.
State that at the hearing protests will be considered by the board of supervisors.
State that requests in writing for the exclusion of lands from, or the inclusion of lands in, the proposed district, will be heard and considered by the board of supervisors.
Notice of the hearing shall be given by publication in a newspaper of general circulation published and circulated in the district. Notice of the hearing shall also be given to all winegrape growing acreage owners within the proposed district.
The notice shall be published once a week for two successive weeks prior to the date set for the hearing.
At the hearing, the report of the county agricultural commissioner shall be received by the board of supervisors. Protests may be made orally or in writing by any person interested in the formation of the proposed district. Any protest that pertains to the regularity or sufficiency of the proceedings shall be in writing and shall clearly set forth the irregularities and defects to which objection is made. All written protests shall be filed with the clerk of the board of supervisors on or before the time fixed for the final hearing. The hearing may be continued from time to time, not to exceed 60 days.
At the hearing, any owner of winegrape growing acreage in the proposed district may present to the board of supervisors a request for the exclusion of that land or any part of that land from the proposed district upon a showing that the land or part of that land will not be benefited by the activities of the proposed district. Factors that the board of supervisors may consider in its determination to exclude shall include an affidavit from the landowner stating that the land is not planted to winegrapes and will not be so planted in the foreseeable future. However, should the excluded land be planted to winegrapes, the landowner shall be required to inform the district, in writing, within 30 days of planting. Any owner of winegrape acreage outside the proposed district may present to the board of supervisors a request in writing for inclusion of that land in the proposed district.
If the board of supervisors determines that the petition does not comply with the requirements of law, the matter may be dismissed without prejudice to present a new petition covering the same matter. A finding by the board of supervisors in favor of the sufficiency of the petition and notice is final and conclusive against all persons except the state in a proceeding brought by the Attorney General within one year of the date of the making of the order establishing and describing the boundaries of the district.
If the board of supervisors determines that the project is feasible and in the interest of the winegrape growers of the county, the board of supervisors shall, by order entered in its minutes, declare the district duly organized under the name designated in the petition for the formation of the district.
The order shall describe the territory included in the district and, if the board of supervisors does not exclude or include land pursuant to Section 6293.13, it is a sufficient description of the territory to describe the boundaries in substantially the same way as they are described in the petition.
A copy of the order duly certified by the clerk of the board of supervisors shall be filed for record in the office of the county recorder of the county in which the district is situated.
In determining the boundaries of the district, the board of supervisors shall exclude from the district any winegrape growing acreage that it finds will not be benefited by the proposed project, and it may include in the district any winegrape growing acreage that it finds will be benefited if it also finds it will be in the interest of the district to include that winegrape growing acreage. The inclusion may be upon application of the owner or, without the owner’s application, upon giving the owner notice of the proposed inclusion and an opportunity for a hearing on the inclusion.
Notice of inclusion shall be mailed, postage prepaid, by the clerk of the board of supervisors, to the address of the owner of the winegrape growing acreage, as shown by the last equalized county assessment roll, and to any person that has filed with the clerk that person’s name and address and description of winegrape growing acreage in which he or she has either a legal or equitable interest. The notice shall describe the winegrape growing acreage proposed to be included, and shall state the time and place at which objections to the inclusion will be heard.
ARTICLE 3. Organization of Districts [6294. - 6294.7.]
Upon the adoption of the order of organization, the board of supervisors shall immediately appoint a board of directors of five members to administer the affairs of the district.
In order to be eligible to be a director of the district, a person shall be a citizen of the United States and of this state, and an owner of lands included in the district that are devoted, in whole or in part, to the growing of winegrapes. The district board members shall represent geographically diverse areas in the county.
Upon his or her appointment, each director shall, in the manner provided by law, subscribe the oath of office and file the oath with the county clerk.
From and after the filing for record of the order of the board of supervisors declaring the district organized, and the appointment and qualification of its first board of directors, the organization of the district is complete. The district shall operate for a period of five years from the date of its organization and shall cease to exist after five years, unless the district is reauthorized and approved by the board of supervisors.
The district board of directors shall hold a public hearing six months prior to the termination of its initial organization or last reauthorization to determine whether the conditions of Pierce’s disease, the glassy-winged sharpshooter or other pest or disease determined pursuant to Section 6293.4 warrant the reauthorization of the district for an additional five years. The notice of hearing shall state the name of the district and that consideration is being given to reauthorizing the district for up to an additional five years, the boundaries of the district, and the time and place for the hearing. Notice of the hearing shall be given as provided in Sections 6293.7 and 6293.8. The district board of directors shall submit the record of the hearing and its recommendation to the board of supervisors within 90 days of the hearing.
Following its receipt of the recommendation of the district board of directors, the board of supervisors shall approve or reject the recommendation. If the recommendation is rejected, the board of supervisors shall return the report accompanied by its reasons for the rejection to the board of directors within 30 days of receipt. The district board of directors may thereafter address the reasons for rejection by the board of supervisors and submit an amended report and new recommendations for reauthorization for approval or rejection by the board of supervisors, unless the district has ceased to exist pursuant to subdivision (a).
Immediately after the organization of the district, the directors shall meet and organize as a board and shall elect a chairperson, vice chairperson and secretary from among their own number.
The chairperson shall call and preside at all meetings of the district board, sign all warrants drawn on the county treasurer, and all contracts and other documents, and the minutes of all meetings at which the chairperson is present. In case of the chairperson’s absence from a meeting, the vice chairperson shall act as chairperson pro tempore. The vice chairperson may sign warrants in place of the chairperson if the chairperson is absent from a meeting or unavailable. The secretary shall give notice of and keep the minutes of all meetings and prepare and have custody of all records and papers, and have custody of the seal of the district. The secretary shall attest all warrants drawn on the county treasury, all contracts and other documents, and shall sign the minutes of all meetings at which he or she is present. The secretary shall prepare the annual reports and any other reports required by the district board and shall prepare all notices and all calls for bids.
The members of the district board shall serve for terms of one year, or for a longer term as determined by the board of supervisors, and until the appointment and qualification of their successors.
Upon the expiration of the term of any member of the district board, the board of supervisors shall appoint the successor. Vacancies shall be filled by the board of supervisors for the unexpired term.
The members of the district board shall not receive any compensation for their services, but may be reimbursed for their actual and necessary expenses, when claims for those expenses have been approved by the district board.
ARTICLE 4. Powers and Duties of the District [6295. - 6295.6.]
The district may do all of the following:
Sue and be sued in all actions and proceedings in all courts and tribunals of competent jurisdiction.
Adopt a seal and alter it at pleasure.
Take by grant, purchase, gift, devise, lease, or otherwise, and hold, use and enjoy, and lease, or otherwise dispose of, real and personal property of every kind and description within or without the district necessary to the full and convenient exercise of its powers.
Cause assessments to be levied, as provided in Article 5 (commencing with Section 6296), to pay any obligation of the district and to accomplish the purposes of the district in the manner provided in this chapter.
Make contracts, and employ, except as otherwise provided in this chapter, all persons, firms, and corporations necessary to carry out the purposes and the powers of the district, and at any salary, wage, or other compensation as the district board of directors shall determine.
Respond to the effects and spread of Pierce’s disease, the glassy-winged sharpshooter, and other winegrape plant pests and diseases and collect and disseminate to winegrape growers in the district all relevant information and scientific studies concerning the pest or pests or diseases, as well as to chart and determine the extent and location of any infestations.
With reasonable advance notice in writing to the landowner, as determined by the district, enter into or upon any land included within the boundaries of the district for the purpose of inspecting the winegrape plants and any other host plants and fruit growing on them.
Perform any and all acts, either within or outside the district, necessary or proper to fully and completely carry out the purposes for which the district is organized.
The district’s administrative costs are to be limited to 5 percent of the annual assessment revenues.
Every district formed pursuant to this chapter has all of the powers prescribed by Section 6295 and other provisions of this chapter, regardless of any language in the petition for formation for any district or in any of the proceedings leading to the formation that would otherwise limit the power of the district.
The county agricultural commissioner of the county in which the district is located shall, in consultation with the district board, assist the district to the extent possible in all activities undertaken by the district for the control of Pierce’s disease, the glassy-winged sharpshooter, or any other winegrape plant pests or diseases.
The district board shall, immediately after its appointment and after public hearing, formulate an effective plan and adopt a budget of expenditures for the forthcoming fiscal year. At a public hearing on the plan and the budget, any owner of winegrape growing acreage included in the district may make written or oral protest against the budget or any item in it. The plan and the budget, as thereafter approved by the district board, shall be the plan and the budget of the district for the forthcoming fiscal year.
There may be added to the budget for the first fiscal year of the operation of the district an amount not to exceed 20 percent of the total amount of the budget to cover the preliminary expenses of the district, including, but not limited to, the costs of formation, before the beginning of the first fiscal year.
For each fiscal year subsequent to the first year of operation of the district, the district board shall adopt the final budget therefor in the same manner and at the same time that the budget for the first fiscal year was adopted.
The board of supervisors may charge the district for actual costs incurred by the county in connection with the proceedings for the formation of the district, and the district shall reimburse the county from assessments levied for those expenses.
ARTICLE 5. Levy of Assessments for District Purposes [6296. - 6296.9.]
The county assessor, in making the annual assessment of property included in the district each and every year after the organization of the district, shall identify any parcel of real property with one acre, or more, of winegrape plants.
Whenever acreage within the district is planted with winegrape plants in such a fashion as to qualify as winegrape growing acreage, the acreage is subject to assessment as provided in this article.
After the district has been formed, an owner of winegrape growing acreage in the district may present to the district board a request in writing for the exclusion of that land or any part of the land from the district upon a showing that the land or part of the land will not be benefited by the activities of the district. Factors that the district board may consider in its determination for exclusion shall include an affidavit from the owner that the plants have been removed from the land and will not be replanted within the foreseeable future. However, should the excluded land be planted to winegrapes, the landowner shall be required to inform the district, in writing, within 30 days of planting.
After receipt of the request, the district board shall cause an investigation of the parcel of land to be made and, if the district board determines that the land or part of the land will not be benefited by the activities of the district, the district board shall exclude the winegrape acreage from the district and immediately certify this fact to the county assessor and the county auditor or tax collector.
Any owner of winegrape acreage outside of, or otherwise not included in, the district may present to the district board a request in writing for inclusion of the land in the district.
The district board shall, on or before the first Monday in April of each year, file with the board of supervisors a budget that sets forth all estimated expenditures of the district for the fiscal year commencing on the first day of July. A copy of the budget shall also, at the same time, be filed with the auditor of the county. The board of supervisors shall cause to be prepared and filed with the clerk of the board of supervisors a written report that contains all of the following information:
A description of each parcel of property proposed to be subject to the assessment.
The amount of the assessment of each parcel for the initial fiscal year.
The maximum amount of the assessment that may be levied for each parcel during any fiscal year.
The duration of the assessment.
The basis of the assessment.
The schedule of the assessment.
A description specifying the requirements for written and oral protest, and the protest threshold necessary for requiring abandonment of the proposed assessment pursuant to Section 6299.
The board of supervisors may, by ordinance or by resolution, adopted after complying with the notice, protest, and hearing procedures in Article 4.6 (commencing with Section 53750) of Chapter 4 of Part 1 of Division 2 of Title 5 of the Government Code, and upon approval by two-thirds of the benefiting vineyard property owners, determine and levy an assessment for winegrape pest and disease control activities for any of the following purposes:
Responding to, managing, and controlling the effects of the spread of Pierce’s disease, the glassy-winged sharpshooter, and any other pests that attack winegrape plants.
Collecting and disseminating to winegrape producers in the district all relevant information and scientific studies concerning the pest, or pests, and winegrape diseases.
Charting and determining the extent and location of any infestations.
The annual assessment shall not exceed twenty dollars ($20) per planted acre.
In addition, the mailed notice shall include the name of the district, the return address of the sender, the amount of the assessment for the initial fiscal year, the maximum amount of the assessment that may be levied during any fiscal year and the name and telephone number of the person designated by the board of supervisors to answer inquiries regarding the protest proceedings.
The assessment so levied shall be computed and entered upon the assessment roll by the county auditor, and if the supervisors fail to levy the assessment as required, the auditor shall do so. The assessment shall be collected at the same time, and in the same manner as, and together with and not separate from, general county taxes, and when collected shall be paid into the county treasury for the use of the district.
The general provisions of the laws of this state, prescribing the manner of levying and collecting county taxes and the duties of the several county officers with respect to levying and collecting county taxes, are, so far as they are applicable and not in conflict with the specific provisions of this article, hereby adopted and made a part of this article. The several county officers thus referred to shall be liable upon their several official bonds for the faithful discharge of the duties imposed upon them by this chapter.
The revenue from the assessments imposed pursuant to this chapter by the district are trust funds and shall be encumbered only for the purposes for which the district is formed and for the benefit of the property assessed. The district shall expend the minimum amount necessary for overhead and other administrative costs. No district funds shall be donated, loaned, or transferred to any other local agency or to the State of California for any purpose, except for the implementation of the duties of the district, set forth under this chapter, as determined necessary by the district board.
The county treasury shall be the repository of all the moneys of the district. The county treasurer shall receive and receipt for all those moneys, and place the same to the credit of the district. The county treasurer shall be responsible upon his or her official bond for the safekeeping and disbursement, in the manner provided in this article, of all moneys of the district so held.
The county treasurer shall pay out money of the district only upon warrants of the county auditor drawn upon the order of the board of directors of the district signed by the chairperson or vice chairperson and attested to by the secretary. The county treasurer, with the approval of the board of supervisors, shall pay out the money of the district upon one master warrant of the county auditor drawn upon the order of the board of directors of the district and signed by the chairperson or vice chairperson and attested to by the secretary, to meet the district’s expenses, including salaries, at such intervals as is approved by the board of supervisors.
The county treasurer shall report, in writing, on the first day of July, October, January, and March of each year, to the district board of directors, the amount of money the treasurer then holds for the district, the amount of receipts since the last report, and the amounts paid out. Each report shall be verified and filed with the secretary of the district to whom it is addressed.
ARTICLE 6. Inclusion of Lands [6297. - 6297.]
Lands devoted exclusively to the growing of winegrapes within a tract of land outside the district, but in the county in which the district is located, may be annexed to the district in the same manner provided in this chapter for the formation of the district.
ARTICLE 7. Consolidation [6298. - 6298.]
Any two or more districts organized or existing under this chapter may be consolidated, whether or not the boundaries are coterminous.
ARTICLE 8. Dissolution of Districts [6299. - 6299.]
Upon the filing of a petition with the board of supervisors, signed by 50 percent or more of the owners of 65 percent or more of the affected land, or signed by 65 percent or more of the owners of 50 percent or more of the affected land, requesting the dissolution of the district, the board of supervisors shall set a time and place for hearing on the petition, which shall not be less than 20 days, or more than 40 days, after the filing of the petition. Immediately following the hearing, the board of supervisors shall vote on the petition for dissolution. A majority vote supporting the petition by the supervisors will result in dissolution of the district.
PART 2. SHIPMENTS [6301. - 6524.]
CHAPTER 1. Generally [6301. - 6344.]
ARTICLE 1. General Provisions [6301. - 6306.]
If any article is found to have been transported into this state from any other country or state, or territory or district of the United States, in violation of any provision of a quarantine that is established by the Secretary of Agriculture of the United States, the article is subject to seizure, destruction, or other disposition to the same extent and in the same manner as if the article had originated in this state and was in violation of a provision of this division.
The secretary shall adopt, by reference, by regulation, those federal quarantine regulations and any subsequent amendments in Parts 301 to 369, inclusive, of Title 7 of the Code of Federal Regulations. Civil and criminal penalties applicable to a violation of those federal quarantine regulations may be imposed by the secretary and other duly authorized plant quarantine officers in conformity with that other law.
Any funds recovered by the commissioner pursuant to this section shall be deposited in the county general fund in the county in which the action is brought and shall be allocated to the commissioner to cover costs related to the enforcement of this division. Any funds recovered by the secretary pursuant to this section shall be deposited in the Department of Food and Agriculture Fund to cover costs related to the enforcement of this division.
If any shipment of plants or things which is passing through any portion of the state is, or is liable to be, infested or infected with any pest, and there exists danger of dissemination of the pest while the shipment is in transit in this state, the shipment shall be placed within sealed containers which are composed of metal or other material so constructed that they are not liable to be broken or opened while in transit so as to permit the pest to escape. The containers shall not be opened while within the state.
It is unlawful for any person, except under written permission from a plant quarantine officer or under his specific direction, to move any lot or shipment of plants or other things to which a warning tag or notice has been affixed pursuant to this division, or to remove, alter, destroy, deface, or mutilate any such warning tag or notice.
If any shipment of plants or things is allowed to transit the state or transit to a given destination county under a quarantine warning-hold notice, the shipment of plants or things shall not be diverted to another destination without the written permission of the director or the commissioner of the destination county.
Diversion of a shipment as described in subdivision (b) is unlawful.
If a shipment of plants or things requires a state or county plant quarantine officer to be present at the destination to supervise the unloading, inspection, or treatment of a quarantine shipment, the director or commissioner, as the case may be, may charge the shipper or receiver a service fee for the cost of the services. Service fees shall be determined based on the director or commissioner’s costs for the services rendered.
It is unlawful for any person to import into the state any English or Australian wild rabbit, flying fox, mongoose, or any other form of animal life which is detrimental to agriculture. Any such animal shall be refused entry and shall be immediately destroyed or shipped out of the state within 48 hours at the option and expense of the owner or bailee of the animal.
It is unlawful for any person to willfully import into, or ship or transport within, the state any live insect or any pest as such, unless the shipment or transportation and subsequent use and handling is authorized prior to shipment under written permit and the regulations of the director or the United States Department of Agriculture, except the following:
Honey bees of the species of Apis mellifera.
Weeds for the purpose of identification.
Beneficial or useful insects of common occurrence in the state.
Insects or other organisms of public health or animal health interest, which are not plant pests, when imported, shipped, or transported by any governmental public health agency.
Any shipment which is not authorized by this section shall be immediately destroyed unless it is determined by the inspecting officer that the nature of the contents of the shipment is such that no damage can be caused to agriculture in this state through its shipment out of the state or return of the shipment to the point of origin. In such case, the shipment out of the state or the return of the shipment to point of origin shall be allowed at the expense of the owner or bailee of the shipment within the time which is specified by the inspecting officer.
Unless otherwise permitted by law, any person who willfully and knowingly imports into, or who willfully and knowingly transports or ships within, this state, a Mediterranean fruit fly is guilty of a felony.
ARTICLE 2. Tephritidae Fruit Flies [6321. - 6323.]
It is unlawful for any person to import into, or transport thereafter within, the state any plant, fruit, or vegetable which is known to be, or may become, a host of any species of the fruit fly family Tephritidae from any territory, state, or district where such species of Tephritidae is known to exist except under permit and regulation of the director if the director finds that the species is harmless to agriculture or that an effective treatment of the hosts eliminates fruit fly risk.
Any plant, fruit, or vegetable which is known to be, or which may become, a host of any species of the fruit fly family Tephritidae, together with its containers and packing, shall be refused entry or transportation within the state.
Any plant, fruit, or vegetable which is known to be, or which may become, a host of any species of the fruit fly Tephritidae, which is imported into, or transported thereafter within, this state shall be immediately destroyed at the expense of the owner or bailee unless it is imported or transported under permit and in accordance with regulations of the director.
ARTICLE 3. Seed Pests in Shipments [6341. - 6344.]
If anything brought into any county or locality of the state from another county or locality within the state, or from any other state or foreign country, is found to be infested with the seed or propagule of any pest that is not of common occurrence in the county or locality into which the shipment is brought, the director or the commissioner shall notify the owner or bailee of such shipment to return it to the point from which the shipment was made.
The owner or bailee shall return the shipment to the point from which it was made within 48 hours.
If the director or the commissioner determines that the pest seeds can be destroyed by treatment, the shipment may, at the option and expense of the owner or bailee, be given such treatment under the supervision of the director or the commissioner. After the treatment the shipment may be released.
If the director or the commissioner determines that no adverse effect to agriculture would result from allowing the shipment to be stored in quarantine pending treatment or shipment out of the state, or from procedures incidental thereto, the shipment may be so stored for such a period of time in an approved place under such conditions as the director or commissioner may require.
CHAPTER 2. Interstate Shipments [6401. - 6465.]
ARTICLE 1. Notice of Arrival and Hold for Inspection [6401. - 6405.]
It is unlawful for any person to transport, receive, or import into the state any plant or any thing against which a quarantine has been established, or any plant, unless he does both of the following:
Notifies the director or the commissioner of the county in which the plant or thing is received, of the arrival of the plant or thing immediately after its arrival.
Holds the plant, or thing for immediate inspection by the director or commissioner, without unnecessarily moving it, or placing it where it may be harmful.
If there is no commissioner in the county where the plant or thing is received, the person that transports, receives, or imports the plant or thing into the state shall notify the director, who shall make immediate arrangements for its inspection.
The officer who makes the inspection may enter at any time into any conveyance or place within the state where the plant or thing is located to ascertain whether it is, or is liable to be, infested or infected with any pest.
The secretary may enter into agreements with the regulatory officials of other states or the United States Department of Agriculture to provide for the application of various pest risk mitigation measures to the shipments of plants or bee colonies at the place of origin. Shipments entering the state in compliance with these agreements may be released upon arrival at ports of entry or terminals in this state without being held and inspected for compliance with standards and quarantine requirements.
Any certificate that has been altered, defaced, or improperly completed or changed is void.
It shall be unlawful for any person to do any of the following:
Alter, deface, or otherwise falsify or change, a certificate that is attached to any plant shipment or other thing entering the state.
Use, or have in his or her possession, any certificate that has been altered, defaced, or otherwise falsified or changed.
Transport, receive, or possess any plant material represented by a certificate.
For purposes of this section, “certificate” means a certificate issued pursuant to a quarantine regulation.
ARTICLE 2. Markings [6421. - 6421.]
Each shipment of plants which is brought into this state shall have legibly marked upon it in a conspicuous manner and place all of the following:
The name and address of the shipper or owner.
The name of the person to whom the shipment is forwarded or shipped or the name of his agent.
The name of the country, state, or territory where the contents were grown.
A statement of its contents.
ARTICLE 3. Pest Findings [6441. - 6443.]
If, after inspection, any plant or thing is found to be infested or infected, the owner or bailee shall, at his expense, disinfect the conveyance or place where the plant or thing may have been located, in such manner as to destroy all infection or infestation present, or that is liable to be present.
The officer who makes the inspection shall not permit any article to be removed which has come in contact with the infested or infected plant or thing, if such article might convey infection or infestation, until after the infection or infestation is destroyed, except for the purpose of destruction or disinfection under the supervision of the inspecting officer.
Any article which is liable to be infested or infected shall be held until it has been thoroughly disinfected and the pest has been destroyed.
The director may designate certain plants that are not for planting, propagation, or ornamental purposes within this state, which are arriving from certain areas, to be plants that may be released without inspection, if he finds, upon investigation, that such plants from such areas are not liable to cause the introduction of pests into this state.
ARTICLE 4. Abatement, Reshipment, or Treatment [6461. - 6465.]
It is unlawful to ship or transport any plant or any other thing into this state which is infested with any pest which has been listed, by the director, as detrimental to agriculture in this state.
The director shall either establish and amend the list of pests by order, after notice and opportunity for written or oral comments, or through the adoption or amendment of quarantine regulations.
In addition to the civil, criminal, and administrative remedies specified in this division, the director may, after notice and opportunity to respond, impose inspection, treatment, certification, holding, or other requirements for any shipper or transporter that has shipped or transported three or more pest-infested shipments into this state within any 12-month period.
With regard to any commercial shipment violating any of those requirements imposed pursuant to this section, the director or commissioner may also charge the shipper or transporter the cost of inspecting and controlling the pest.
Except as otherwise provided in this article, if any shipment of plants or any other things in violation of this chapter or any quarantine which has been established, is brought into this state and it is found to be infested or infected, or there is reasonable cause to believe that it may be infested or infected, with any pest, the shipment shall be immediately destroyed by, or under the supervision of, the officer who inspects it, at the expense of the owner or bailee of the shipment.
If the nature of the pest is such that no detriment can be caused to agriculture in the state by the shipment of the plant or thing out of the state, the officer who makes the inspection may affix a warning tag or notice to the shipment. The officer shall notify the owner or bailee of the plant or thing to ship it out of the state within 48 hours. The owner or bailee shall ship the plant or thing out of the state within the time which is specified in the notice. The shipment is under the direction and control of the officer who makes the inspection and is at the expense of the owner or bailee.
If the plant or thing is not shipped out of the state within the time which is specified in the notice, the inspecting officer shall immediately after the expiration of the time seize the plant or thing and destroy it at the expense of the owner or bailee.
If the pest may be exterminated by treatment or processing which is prescribed by the director and it is determined by the inspecting officer that the nature of the pest is such that no damage can be caused to agriculture in this state through such treatment or processing or any procedure which is incidental thereto, the shipment may be treated or processed under the supervision of the inspecting officer at the expense of the owner or bailee in the manner, and within the time, which is specified by the inspecting officer.
If, after the treatment or processing, the inspecting officer determines that the pest has been exterminated, the shipment may be released.
CHAPTER 3. Intrastate Shipments [6501. - 6524.]
ARTICLE 1. Notice of Arrival and Hold for Inspection [6501. - 6506.]
Except as otherwise provided in Section 6502, 6504, 6506, or 6924, it is unlawful for any person to receive or bring into any county or locality of the state from another county or locality within the state any nursery stock, or any other plant, appliance, or thing subject to a federal or state quarantine or which the commissioner or the director considers and designates to be liable to be infected or infested with any pest, unless the person does all of the following:
Notifies the commissioner of the arrival of the article immediately after its arrival.
Holds it for immediate inspection by the commissioner, without unnecessarily moving or placing the article where it may be harmful.
Legibly marks the shipment in a conspicuous manner and place with all of the following:
The name and address of the shipper or owner.
The name of the person to whom the shipment is forwarded or shipped or the name of his or her agent.
The name of the county where the contents of the shipment were grown.
A statement of its contents.
Any shipment of less than five pounds of agricultural, vegetable, or flower seed, or comprised of packages of less than three pounds of each kind of such seed, is exempt from the requirements of this article. The shipping permit which would be required by Article 2 (commencing with Section 6921), Chapter 2, Part 3, of this division for such a shipment may be waived by the commissioner.
Except as provided in Sections 6505, 6506, and 6923 any shipment of nursery stock which is moved from one county or locality to another county or locality which is accompanied by a valid nursery stock certificate or is sold at retail and delivered to the purchaser at a licensed sales location as provided in Section 6924 is exempt from the requirements of this article
The commissioner may waive the exemption in Section 6504 by written notice to the director designating the kind of nursery stock, and the pest that may be transmitted thereby, which shall be held for inspection as provided in Section 6501, upon arrival in the county or locality described in the notice.
Any shipment of seed from an origin inspected warehouse is exempt from the requirements of this article.
ARTICLE 2. Abatement, Return, or Treatment [6521. - 6524.]
Except as otherwise provided in Sections 6523 and 6524, if any shipment of any nursery stock, plant, or container of any nursery stock or plant, or appliance, or any host or other carrier of any pest which is brought into any county or locality in the state from another county or locality within the state, is found to be infected or infested with a pest, or there is reasonable cause to believe that the shipment may be so infested or infected, the entire shipment shall be refused delivery and may be immediately destroyed by, or under the supervision of the commissioner, unless the nature of the pest is such that no damage or detriment can be caused to agriculture by the return of the shipment to the point of shipment.
The officer who makes the inspection of a shipment which is described in Section 6521 may affix a warning tag or notice to the shipment and shall notify in writing the owner or bailee of the shipment to return the shipment to the point of shipment within the time limit which the officer shall specify in the notice which shall be 48 hours, unless a longer or shorter period is determined to be necessary to accomplish the purposes of this article. The owner or bailee shall, at his own expense, return the shipment under the direction and control of the commissioner. If the owner or bailee fails to return the shipment within the time which is specified, the commissioner shall destroy it.
If the pest may be exterminated or controlled by treatment or processing which is prescribed by the commissioner, and if the commissioner determines that the nature of the pest is such that no damage can be caused to agriculture through such treatment, processing, or procedure incidental thereto, the shipment may be treated or processed, under the supervision of, and in a manner and within a time satisfactory to, the commissioner. The treatment or processing shall be at the expense of the owner or bailee of the shipment. If the shipment is so treated or processed, it may be released to the consignee.
If the commissioner determines that only a portion of the shipment is infested or infected with a pest, or that there is reasonable cause to believe that only a portion of the shipment may be so infested or infected, only such portion of the shipment may be destroyed, returned to the point of origin, or treated or processed.
PART 3. NURSERY STOCK [6701. - 6995.]
CHAPTER 1. Licenses [6701. - 6781.]
ARTICLE 1. General Provisions [6701. - 6701.]
The director may publish in pamphlet form, as often as he deems necessary, a list of all persons that are licensed pursuant to this chapter. The pamphlet may also contain such additional information as the director deems advisable concerning the enforcement of laws and regulations which pertain to nursery stock.
ARTICLE 2. Issuance and Renewal of Licenses [6721. - 6728.]
Except as provided in Section 6761, the director, upon receipt of the total license fee which is established pursuant to Section 6723, shall issue a license to sell nursery stock for the appropriate period as established pursuant to Section 6724 to any person that sells or seeks to sell plants, as defined in Section 5007, for planting, propagation, or ornamentation. Plants for ornamentation shall include cut flowers and cut greens. The applicant shall further satisfy the director of his character and good faith in seeking to carry on the business of selling nursery stock.
The secretary shall establish the minimum license fee at an amount not to exceed one hundred eighty dollars ($180).
The secretary may fix the minimum license fee at an amount that is less than one hundred eighty dollars ($180) and may adjust the license fee if, after investigation and due notice, the secretary finds that the cost of administering this division and Chapter 5 (commencing with Section 53301) of Division 18, which relate to nursery stock, can be defrayed from revenues derived from the license fee in combination with those sums as provided by Sections 435 and 5822.
Both of the following amounts shall be added as an additional license fee to the license fee established pursuant to subdivisions (a) and (b):
An equal sum for each branch salesyard, store, or sales location that is owned and operated by the applicant in the state.
An acreage fee in an amount to be established by the secretary for land used in the production, storage, or sale of all nursery stock, except as provided in subparagraph (B), in excess of one acre, which the secretary determines is necessary to carry out this part and any portion of this code that relates to nursery stock. The total acreage fee shall not be less than twenty-five dollars ($25) nor more than nine hundred dollars ($900) for each licensee. The acreage fee shall be calculated using as a basis the total of the acreage at all locations where nursery stock is produced, stored, or sold.
Subparagraph (A) does not apply to those licensees whose gross income from the production of cut flowers and cut ornamentals is 75 percent or greater of the gross income of their nursery.
As to all the fees, the secretary may require payment of prorated amounts when necessary in the issuance of new licenses for branch salesyards, stores, or sales locations to persons already licensed pursuant to the licensing periods established in Section 6724.
There shall be four licensing periods as follows: January through December, April through March, July through June, and October through September. The fees for the renewal of the license for the foregoing periods shall be paid by the 1st day of the first month of the licensee’s license period. If the renewal license fee is not paid prior to the 11th day of the first month of the licensee’s license period, for the 12-month period ensuing, the license to sell nursery stock is forfeited.
Any person whose license to sell nursery stock has been forfeited shall not be issued a renewal license except upon written application to the department.
Except as otherwise provided in Section 6727, the application for renewal of a license shall be accompanied by the following sums:
If no part of the minimum license fee has been paid, a sum which is equal to the minimum license fee and a restoration fee in an amount that is equal to the minimum license fee.
If a part of the minimum license fee has been paid, an amount which is a sum equal to any portion of the minimum license fee which is unpaid on the 11th day of the first month of the licensee’s license period and a restoration fee in an amount which is equal to the unpaid portion of the minimum license fee.
No restoration fee is required of any person whose application for renewal of a license is accompanied by his signed statement that prior to the date of his application and payment of the minimum license fee he has not sold any nursery stock during any part of the license period for which he applies for renewal of the license. The director also may accept, at his discretion, the licensee’s affidavit that the minimum license fee was not paid within the time limits specified in Section 6724 for reasons beyond the licensee’s control.
The director shall not refund more than one-half of the minimum license fee to any person who applies for a license to sell nursery stock and who later decides not to engage in the sale of nursery stock. No portion of the minimum license fee shall be refunded to any person who is denied a license pursuant to Section 6761.
ARTICLE 3. Exemptions [6741. - 6744.]
A person is not required to pay any license fee if all of the following facts exist:
The person’s sales of plants amount to less than one thousand dollars ($1,000) within any one fiscal year.
The person has reported to the commissioner his or her intention to make those sales.
All plants which are sold by the person are of his or her own production, and are sold for planting within the county in which the plants were grown.
Any person that sells seeds and does not sell or ship any other kinds of nursery stock is exempt from the license requirements of this chapter.
Any retail florist or other person that sells plants at retail for indoor decorative purposes only is exempt as to such plants from the license requirements of this chapter.
Any person that sells cut Christmas trees is exempt from the license requirements of this chapter.
ARTICLE 4. Refusal, Revocation and Suspension [6761. - 6762.]
The secretary, after investigation and hearing, may refuse to issue or renew a license, or may suspend or revoke a license, if the secretary determines that the licensee or the applicant has done any of the following:
Has willfully refused to comply with the laws and regulations relative to nursery stock, or to any pest that might be carried by nursery stock.
Was intentionally guilty of fraud or deception in the procurement of the license.
Has been guilty of fraud or misrepresentation in the handling or sale of nursery stock.
Has failed to maintain nursery stock produced or sold by the secretary in accordance with the standards of cleanliness that are prescribed by the secretary.
Has failed to comply with a lawful order that is issued by the secretary or commissioner.
Has failed to pay any assessment levied pursuant to this code on nursery stock or products comprising nursery stock.
Any proceedings shall be conducted in accordance with Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2 of the Government Code. The director shall have all the powers which are granted in such chapter.
ARTICLE 5. Disposition of Fees [6781. - 6781.]
Any money which is received by the department pursuant to this chapter shall be paid into the State Treasury and be credited to the Department of Agriculture Fund. Any money in the Department of Agriculture Fund which is derived pursuant to this chapter may be expended for the administration or enforcement of any or all of the provisions of the following portions of this code which relate to nursery stock, notwithstanding any other provision of law which limits the expenditure of such money to some specific purpose or to the administration or enforcement of some specific section, article, chapter, or law:
Section 435.
Article 7 (commencing with Section 5821), Chapter 8, Part 1, of this division.
Chapter 1 (commencing with Section 6701), Part 3, of this division.
Chapter 5 (commencing with Section 53301) of Division 18.
CHAPTER 2. Other Regulations [6901. - 6988.]
ARTICLE 1. Inspections and Standards of Cleanliness [6901. - 6904.]
The director by regulation shall provide for periodic inspections of nurseries and may prescribe standards of cleanliness for nursery stock which is produced or sold within the state.
The standards of cleanliness may:
Provide that all nursery stock shall be kept free from pests of limited distribution or pests which are not known to be established in this state and commercially clean in respect to established pests of general distribution.
Prescribe methods of treatment of various types of nursery stock for control of pests.
Require isolation of infested or infected nursery stock pending treatment or other disposal.
Make such other provisions as are reasonably necessary to insure the relative freedom from pests of all nursery stock which is produced or sold within the state.
The commissioner shall inspect all nurseries within his jurisdiction when and as required by the regulations of the director.
The commissioner shall issue such orders as may reasonably be necessary to insure compliance with the standards of cleanliness.
Any interested person, upon request, is entitled to a hearing before the director to review any order which is issued by a commissioner pursuant to this section.
ARTICLE 2. Shipment of Nursery Stock, Generally [6921. - 6927.]
It is unlawful for any person to ship, or cause to be shipped, any nursery stock from one county or locality of the state to another county or locality within the state unless he has marked upon such nursery stock in a conspicuous manner and place both of the following:
The name and address of the shipper, owner, or person that is forwarding the nursery stock.
The name of the person, or his agent, to whom the nursery stock is forwarded.
Except as otherwise provided in Sections 6502, 6504, 6505, 6506, and 6924, it is unlawful for any person to sell, deliver, or transport any nursery stock from one county to another county within the state unless he has affixed to such nursery stock in a conspicuous place one of the following which is issued by the commissioner of the county of origin:
A shipping permit that warns that inspection at destination is required.
A valid nursery stock certificate.
Except as otherwise provided in Section 6502 or Section 6506, it is unlawful for any person to sell, deliver, or transport from one locality to another locality within the same county any nursery stock which the commissioner considers and designates to be liable to be infested with any pest, unless he has affixed to such nursery stock in a conspicuous place one of the following:
A shipping permit that warns that inspection at destination is required.
A valid nursery stock certificate issued by the commissioner of the county which gives notice that inspection at destination is not required.
Except as provided in Sections 6505, 6506, and 6923 a nursery stock certificate need not be affixed to nursery stock if it is sold at retail and delivered to the purchaser at any sales location which is licensed in accordance with Article 2 (commencing with Section 6721) and Article 3 (commencing with Section 6741) of Chapter 1 of this part.
It is unlawful for any person to move, any nursery stock from one locality to another locality within the same county under conditions provided in Section 6926 or from one county to another county within the state, except nursery stock which is accompanied by a valid nursery stock certificate, unless such person forwards, at or prior to the time of shipment, to the commissioner who has jurisdiction at the destination, a manifest which states all of the following:
Name and address of the shipper.
Name and address of the person to whom the shipment is being forwarded.
Name and quantity of each kind of plant which is contained in the shipment.
Name of the locality where each kind of nursery stock was grown.
Name of the carrier by which the shipment is being transported, whether by freight, express, mail, truck, boat, airplane, or otherwise.
The requirement for a manifest does not apply to any shipment of seeds.
It is unlawful for any person to alter any shipping permit or nursery stock certificate or to use it in any manner other than as provided in this chapter.
ARTICLE 3. Citrus Nursery Stock Pest Cleanliness Program [6940. - 6946.]
This article shall apply only to citrus nursery source propagative trees. For purposes of this article, a “citrus nursery source propagative tree” means a citrus tree registered by the department that meets the following criteria:
Is not planted, grown, or maintained under the auspices of the California Citrus Clonal Protection Program.
Is planted, grown, or maintained to serve as a source of material for the propagation of citrus trees, including seeds, cuttings, buds, budsticks, tissue-cultured materials, or graft sticks.
Was tested in accordance with prescribed testing protocols of the department and determined to be negative for specific pathogens.
Is in compliance with all provisions of Section 3060.2 of Title 3 of the California Code of Regulations.
Falls within the department’s prescribed registration timeframes.
The department shall develop and establish the Citrus Nursery Stock Pest Cleanliness Program to protect citrus nursery source propagative trees from harmful diseases, pests, and other risks and threats. This program shall be administered by the secretary.
The secretary shall consider input from interested parties as to the feasibility, cost, justification, and effectiveness of the program when developing components of the program.
The program shall include all of the following:
Require that a person who, by any method of propagation, produces any citrus nursery stock shall comply with all eligibility requirements and testing protocols issued by the secretary.
Establish inspection requirements and testing standards, including retesting and other measures to ensure the accuracy and timeliness of test results.
Specify phase-in periods or effective dates for the regulations and for various requirements specified in the regulations.
Define relevant terms. All relevant terms, including, but not limited to, “person,” “sale,” “nursery stock,” and “plant” that are listed and defined in this code shall apply to the program.
Comply with all applicable federal and state quarantine requirements, with regulations establishing pest cleanliness standards for pests other than pathogens or nonpathogenic disorders, and with disclaimer of warranties and financial responsibility requirements specified in Section 3069 of Title 3 of the California Code of Regulations.
The secretary may also adopt and enforce regulations that are necessary to carry out the purposes of this article.
There are important diseases and pathogens that currently cannot be included in the program because valid and reliable testing methods and practical testing protocols do not exist for determining their absence from citrus trees intended for use as registered sources of citrus propagative stock. Important diseases and pathogens that threaten the citrus industry shall be included in the program within 45 days after valid and reliable diagnostic protocols have been developed and proven to be efficient and effective for the purpose of ensuring that citrus trees registered as sources of citrus propagative stock are tested and determined to be free of the diseases and pathogens.
Criteria relative to the proven efficiency and effectiveness of disease diagnostics for the pathogens described in subdivision (a) shall include adequate diagnostics capacity to perform the required testing and its economic feasibility and practicality.
The department may designate the following types of entities to perform the required disease and pathogen diagnostic testing and analysis under the program:
Entities that have responsibilities associated with the citrus industry and that derive their authority from this code.
Entities that are associated with a California public university.
Private entities with expertise in plant disease diagnostics that meet standards adopted by the secretary to ensure integrity of the sampling methods and results.
An entity authorized pursuant to subdivision (a) shall be proficient in the protocols for which it is approved by the department.
An entity authorized pursuant to this section shall be subject to reapproval by the department pursuant to regulations adopted as authorized by this article.
The department shall have no liability for any errors or omissions of an entity authorized pursuant to this section.
The secretary shall issue orders establishing rates or prices to cover the department’s costs for its administration, testing, inspection, private laboratory approval and accreditation, and other services under the program established pursuant to this article, subject to the following:
The rates or prices shall take into consideration departmental cost savings associated with economy of scale factors.
The nursery stock license fees received by the department pursuant to Chapter 1 (commencing with Section 6701) and the costs of the administrative functions of the program shall be factored into the calculation of the rates or prices for the services provided by the department under this program.
The industry fees for the program, including those already collected pursuant to Chapter 1 (commencing with Section 6701), shall be sufficient to reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this article. No moneys from the General Fund shall be used in this program.
This article shall be construed liberally to effectuate the Legislature’s intent that an effective citrus nursery stock pest cleanliness program in the department be established and administered by the secretary.
The secretary may adopt regulations and issue orders as authorized by this article.
ARTICLE 4. Nursery Stock Certificates and Shipping Permits [6961. - 6970.]
The director may issue regulations which will govern the issuance and form of nursery stock certificates and shipping permits and their use on shipments of nursery stock, to insure the relative freedom from pests of all nursery stock which is produced or sold within the state, and which will evidence compliance with the following:
The inspections and standards of cleanliness in Article 1 (commencing with Section 6901).
The nursery stock grades and standards in Chapter 5 (commencing with Section 53301).
Any other law, or lawful order which is issued by the director or the commissioner, relating to the production or sale of nursery stock within the state, or any shipment thereof except where a specific certificate or permit is required by any quarantine regulation which is issued pursuant to Sections 5301, 5302, or 5322.
The commissioner may issue and authorize the use of nursery stock certificates as provided for in this article.
The commissioner may revoke or suspend the right to use any nursery stock certificate or shipping permit which is issued to any person that fails to comply with the provisions of this chapter, Chapter 5 (commencing with Section 53301), or any regulation issued pursuant thereto.
It is unlawful for any person, whose right to use any nursery stock certificate or shipping permit has been revoked or suspended, to refuse to surrender to the commissioner, upon demand, any unused certificate or shipping permit.
ARTICLE 5. Special Assessments [6981. - 6988.]
An annual assessment of 1 percent shall be levied on the gross sales of all deciduous pome and stone fruit trees, nut trees, olive trees, and grapevines, including seeds, seedlings, rootstocks, and topstock, including ornamental varieties of apple, apricot, crabapple, cherry, nectarine, olive, peach, pear, and plum, produced and sold within the state or produced within and shipped from the state by any licensed nursery dealer. For packaged or containerized stock, the assessment shall be levied on the producer’s bareroot price of the plants.
The secretary, as appropriate, and on the recommendation of the board established pursuant to Section 6988, may exempt from the assessment certain species of pome and stone fruit, nut trees, grapevines, or varieties of olive trees, or ornamental varieties of apple, apricot, crabapple, cherry, nectarine, olive, peach, pear, and plum if it can be demonstrated that no benefit is derived by these species or varieties from programs described in subdivision (d).
The assessment shall be applied at the point of sale where the nursery stock is sold by a producer to persons other than California producers of nursery stock that is subject to assessment under subdivision (a).
The secretary may set the assessment at a lower percent to cover the costs necessary to implement and carry out all department programs established pursuant to Article 7 (commencing with Section 5821) of Chapter 8 of Part 1 concerning the registration and certification of pome and stone fruit trees, nut trees, olive trees, and grapevines; the University of California foundation plant materials service activities concerning pome and stone fruit trees, nut trees, olive trees, and grapevines; and other activities related to the development of planting materials for pome and stone fruit trees, nut trees, olive trees, and grapevines.
The assessment shall be due and payable to the secretary annually by March 10. Assessments not paid within 30 days of the due date shall be considered delinquent.
The measure of gross sales shall be the gross sales for the previous fiscal year of each licensee.
The secretary may conduct audits and ensure that an assessment is being properly paid.
Any money which is received by the department pursuant to this article shall be paid into the State Treasury and shall be credited to the Department of Food and Agriculture Fund. Any money in the fund which is derived pursuant to this article shall be expended solely to support programs specified in subdivision (d) of Section 6981.
The department may enter into agreements with the University of California, any commissioner, and any qualified research agency to assist in the development of planting material for pome and stone fruit, nut tree, olive tree, and grapevine production. The agreements shall provide for payment for services rendered from fees collected pursuant to this article.
The secretary shall levy on all delinquent and unpaid assessments pursuant to this article a collection charge of 20 percent of the amount due.
The secretary shall not renew a nursery license to any applicant who has failed to pay an assessment due pursuant to this article within 60 days of the due date.
The secretary, upon consultation with the pome and stone fruit tree, nut tree, olive tree, and grapevine nursery industry, shall appoint a board to assist and advise him or her concerning the implementation of this article.
Membership on the board shall consist of 11 representatives, a majority of whom are licensed producers of pome, stone, nut, olive, and grape nursery stock, but also users and a public member as follows:
Two each from the stone fruit (including almonds) and nut (other than almond) industries.
Four from the grape industry.
One each from the pome fruit and olive industries.
One public representative.
Board members shall represent all areas of the state involved in the production of pome and stone fruit trees, nut trees, olive trees, and grapevines.
The members of the board shall serve for fixed terms of up to two years. The secretary, upon nomination by the industry, may appoint a member for three consecutive terms. The secretary shall reappoint no more than eight of the then-current members of the board within a two-year period.
The board shall meet at least twice a year. The chair or the secretary may call any other meeting when it is deemed necessary by one or both of them. Each member shall be allowed per diem and mileage in accordance with Department of Human Resources rules for attending any meeting of the board.
The board shall review and make recommendations to the secretary concerning the ongoing operations of the department and the University of California pertaining to this article. This shall include advice on fiscal expenditure, assessments needed to cover costs, and proposals concerning the development of planting materials.
CHAPTER 3. Nursery Advisory Board [6990. - 6995.]
There is in the department a Nursery Advisory Board.
The advisory board shall be advisory to the secretary and may make recommendations on all matters pertaining to the portions of this code relating to nurseries and nursery stock, including, but not limited to, the provisions of law identified in Section 6781.
The advisory board may adopt and amend bylaws as it deems necessary to administer this chapter.
The Nursery Advisory Board shall consist of 12 voting members, appointed by the secretary, representing persons licensed to sell nursery stock pursuant to Chapter 1 (commencing with Section 6701).
The advisory board or secretary, or both, may appoint ex officio nonvoting members who do not have a financial interest in the nursery industry.
The term of office for each member of the Nursery Advisory Board shall be four years.
In the event of a vacancy, the secretary shall appoint a replacement member, who shall fulfill the vacancy for the unexpired term.
No more than approximately one-half of the terms for individual seats on the advisory board shall expire in a given year.
The Nursery Advisory Board shall annually elect a chairperson from its membership.
The advisory board may, from time to time as it deems appropriate, elect other officers.
Members of the Nursery Advisory Board shall not receive a salary but may receive a per diem in accordance with the Department of Human Resources rules for attendance at meetings and other advisory board activities authorized by the advisory board and approved by the secretary.
It is hereby declared, as a matter of legislative determination, that voting members appointed to the Nursery Advisory Board pursuant to this chapter are intended to represent and further the interest of a particular agricultural industry concerned, and that the representation and furtherance of that representation is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the advisory board, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
PART 4. WEEDS AND PEST SEEDS [7201. - 7603.]
CHAPTER 1. Weeds [7201. - 7305.]
ARTICLE 1. Weed-Free Areas [7201. - 7207.]
The director, after investigation and practical survey, may consult with other state and federal agencies having responsibility for forest management and protection of native species and, by proclamation, declare an area within this state to be practically free from any noxious weed, as defined in Section 5004, which is named in the proclamation.
Any area which is declared by proclamation pursuant to this article to be practically free from any noxious weed named in the proclamation shall be known as a weed-free area, as to any noxious weed named in the proclamation. The name of the noxious weed shall be a part of the name of the weed-free area.
The director may by similar proclamation change the boundaries of a weed-free area or declare the weed-free area free from any additional noxious weeds, naming the noxious weed.
A proclamation pursuant to this article shall be under the seal of the department. It shall be published in a newspaper or farm journal of general circulation, published and circulated in the area which is to be affected by the proclamation, at least once a week for two successive weeks. If there is no such newspaper or farm journal, a copy of the proclamation shall be posted in one or more public places in the area.
The director may adopt such regulations as may be necessary to carry out the provisions of this article. He, and the commissioners under the supervision and control of the director, shall enforce such provisions and regulations.
It is unlawful for any person to sell, distribute, or transport into, or within, any weed-free area any seed of any noxious weed of which the area has been declared to be practically free.
It is unlawful for any person that owns or possesses any land within any weed-free area to knowingly permit any noxious weed of which the area has been declared to be practically free, to mature upon his land and disseminate its seed or to propagate itself by other means upon such land, or on the land of another.
ARTICLE 1.7. Noxious Weeds Management [7270. - 7276.]
The Legislature finds and declares all of the following:
The destructive impact of invasive and noxious weeds is profound, affecting California’s cropland, rangeland, forests, parks, waterways, and wildlands.
These pests cause enormous losses of private, state, and federal resources through decreased land productivity, decreased water supply, degradation of wildlife habitat, and outright destruction of crops, livestock range, wetlands, waterways, watersheds, and recreational areas.
The estimated annual lost crop and pasture productivity caused by noxious weeds is twenty-five billion dollars ($25,000,000,000) nationwide, a large proportion of which is attributable to California. Nationally, the direct and indirect costs of controlling noxious weeds is estimated to be at least nine billion six hundred million dollars ($9,600,000,000) annually.
Local programs conducted under this article since 2000 have successfully eradicated over 2,000 populations of high priority weed infestations, while engaging hundreds of collaborating organizations and leveraging three dollars ($3) of additional support for every state dollar spent.
For the purposes of this article:
“Integrated weed management plan” means an ecosystem-based control strategy that focuses on long-term prevention of weeds through a combination of techniques, such as biological controls, judicious use of herbicides, modified land management, and cultural practices, and where control practices are selected and applied in a manner that minimizes the risks to human health, nontargeted organisms, and the environment. An integrated weed management plan shall also, when appropriate, comply with any applicable provisions of Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and Game Code, Division 6 (commencing with Section 11401) and Division 7 (commencing with Section 12500) of the Food and Agricultural Code, and the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
“Noxious and invasive weeds” means weeds that the department has determined to be either noxious or invasive weed species.
“Person” shall have the same meaning as in Section 38, but shall additionally include the United States of America, and all political subdivisions, districts, municipalities, and public agencies of the State of California.
“Riverway” means the water, bed, shoreline,and riparian vegetation, of any creek, including an “urban creek” as defined in Section 7048 of the Water Code, stream, river, lake, reservoir, or other body of freshwater, including a “stream environment zone” as defined in Section 66957 of the Government Code, as well as enclosed bays and estuaries, as defined by Section 13391.5 of the Water Code.
The Legislature designates the department as the lead department in noxious weed management and the department is responsible for the implementation of this article in cooperation with the Secretary of the Natural Resources Agency.
There is hereby created in the Department of Food and Agriculture Fund the Noxious Weed Management Account.
Moneys appropriated for expenditure by the secretary for the purposes of this article may be spent without regard to fiscal year and shall be allocated as follows:
Sixty percent of the moneys in the account shall be made available to eligible weed management areas or county agricultural commissioners for the control and abatement of noxious and invasive weeds according to an approved integrated weed management plan. These control moneys shall be made available through a grant program administered by the department. Proposals shall be evaluated based on the strategic importance for local and regional eradication of high priority noxious and invasive weeds.
Twenty percent shall be made available toward research on the biology, ecology, or management of noxious and invasive weeds; the mapping, risk assessment, and prioritization of weeds; the prevention of weed introduction and spread; and education and outreach activities. These moneys shall be made available to qualified applicants through a grant program administered by the department. Proposals shall be evaluated in consultation with the Range Management Advisory Committee, established pursuant to Section 741 of the Public Resources Code, with an emphasis placed on funding of needs-based, applied, and practical research.
For purposes of this paragraph, a qualified applicant includes nonprofits, publicly funded educational institutions, state and local agencies, and California Native American tribes.
Twenty percent shall be made available to the department, and shall only be used for the following purposes:
Carrying out the provisions of this article.
Developing noxious weed control strategies.
Seeking new, effective biological control agents for the long-term control of noxious weeds.
Conducting private and public workshops as needed to discuss and plan weed management strategies with all interested and affected local, state, and federal agencies, private landowners, educational institutions, interest groups, and county agricultural commissioners.
Appointing a noxious weed coordinator and weed mapping specialist to assist in weed inventory, mapping, and control strategies.
To be eligible to receive funding from the Noxious Weed Management Account pursuant to this article, a weed management area, as defined in subdivision (b), shall be formed in a county or other geographic area.
A “weed management area” is a local organization that brings together all interested landowners, land managers (private, city, county, state, and federal), special districts, and the public in a county or other geographical area for the purpose of coordinating and combining their action and expertise to deal with their common weed control problems. The organization shall function under the authority of a mutually developed memorandum of understanding and subject to statutory and regulatory requirements. A weed management area may be voluntarily governed by a chairperson or a steering committee.
Not more than 10 percent of the noxious weed management funds distributed to a weed management area subject to this section may be used by that local organization for meeting, travel, administration, and coordination costs.
Each weed management area within the state shall create an integrated weed management plan for the management of noxious weeds within that area. The plan shall be submitted to the department for review, approval, and funding.
The secretary and weed management areas shall consider the use of the California Conservation Corp and local conservation corps to assist in implementing integrated weed management plans pursuant to this article.
If feasible, the integrated weed management plan established pursuant to subdivision (d) shall prioritize a cost-share plan.
To be eligible to receive funding from the Noxious Weed Management Account pursuant to this article, a county agricultural commissioner shall submit an integrated weed management plan to implement an aggressive control program for noxious weeds. The goals of the program shall include, but not be limited to, the following:
Increase the profitability and value of cropland and rangeland.
Decrease the costs of roadside, park, and waterway maintenance.
Reduce the fire hazard and fire control costs in the state.
Protect the biodiversity of native ecosystems.
Maintain the recreational and aesthetic value of open space, recreational, and public areas.
Increase water supply and flow.
Funds dispersed pursuant to this section shall be allocated on the basis of the total number of infested acres in each county and the degree of infestation that exists in the counties, and shall only be used for the following purposes upon submission of a plan approved by county boards of supervisors and the department:
Operation of programs by the county agricultural commissioner for control of noxious weeds along county roads and other local government owned property.
Matching funds for control of noxious weeds on city owned streets, parks, rights-of-way, and other public areas.
Disseminating biological control agents by the county agricultural commissioner for the long-term control of yellow starthistle or other noxious weeds.
Abatement of noxious weed infestations on land vital to the success of the program.
Not more than 10 percent of the noxious weed management funds distributed to a county agricultural commissioner subject to this section may be used by that commissioner for meeting, travel, administration, and coordination costs.
The department shall designate and provide staff support to an oversight committee to monitor this article and shall consider input from weed management areas, county agricultural commissioners, and the Range Management Advisory Committee.
The membership of the oversight committee shall include an equitable number of representatives from each of the following interests:
Livestock production.
Agricultural crop protection.
Forest products industry.
California Invasive Plant Council.
Research institutions.
Wildlife conservation groups.
Environmental groups.
Resource conservation districts.
The general public.
Local government.
The Department of Fish and Wildlife.
The department is authorized to operate a government-volunteer partnership Adopt-A-Riverway Program.
The department may receive funds or services from any person to assist a weed management area in implementing an integrated weed management plan, pursuant to this article.
Adopt-A-Riverway Program activities may include the following activities, provided the activities are completed as part of an approved integrated weed management plan and are coordinated with the responsible local agency:
Planting and establishing native seedling trees, native grasses, and wildflowers along the adopted riverway.
Removal of litter and noxious and invasive plant species.
Adopt-A-Riverway Program activities shall be conducted only on publicly owned land unless permission is granted by the owner or owners of private property for program activities to take place on their property as well.
Activities undertaken pursuant to subdivision (c) are subject to review pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and any state or locally adopted river management or conservancy plan.
The secretary may request a local authority to authorize a courtesy sign to be placed on a county highway or city street, near the riverway, pursuant to Chapter 2 (commencing with Section 1975) of Division 2.7 of the Streets and Highways Code.
It is the intent of the Legislature that the duties and responsibilities of the department, as provided for in this section, be accomplished by utilizing existing staff resources, as available.
The Adopt-A-Riverway Fund is hereby established in the State Treasury. The fund is a trust fund and shall contain money and any other proceeds donated, appropriated, transferred, or otherwise received for purposes pertaining to the Adopt-A-Riverway Program. The secretary may collect for deposit into the fund, gifts, donations, bequests, and moneys made available from federal, state, and local sources.
Notwithstanding subdivision (c) of Section 7271, the secretary of the department shall award grants from the Adopt-A-Riverway Fund to weed management areas, as defined by subdivision (b) of Section 7272, for the purpose of integrated weed management along riverways and in riparian habitats consistent with Sections 7272 and 7272.5.
Notwithstanding subdivision (c) of Section 7271, the secretary of the department may award grants from the Adopt-A-Riverway Fund to nonprofit organizations for integrated weed management along riverways and in riparian habitats. The department shall establish regulations for grant eligibility and award pursuant to this subdivision.
Fifteen percent of the total moneys in the Adopt-A-Riverway Fund shall be made available to the department, to be used only for the following purposes:
Carrying out the provisions of this article.
Developing of noxious weed control strategies.
Seeking new, effective biological control agents for the long-term control of noxious weeds.
Conducting private and public workshops as needed to discuss and plan weed management strategies with all interested and affected local, state, and federal agencies, private landowners, educational institutions, interest groups, and county agricultural commissioners.
Upon receipt of donations to the fund totaling a minimum of one hundred thousand dollars ($100,000), up to 5 percent of any individual donation of five thousand dollars ($5,000) or more may be used for courtesy signs to be produced, placed, and maintained pursuant to Chapter 2 (commencing with Section 1975) of Division 2.7 of the Streets and Highways Code.
All startup costs incurred by the state in establishing the Adopt-A-Riverway Program shall be reimbursed to the General Fund from the Adopt-A-Riverway Fund before any money or other proceeds in the fund may be expended for program purposes or transferred by grant award.
ARTICLE 2. Camelthorn [7301. - 7305.]
Camelthorn is a public nuisance. It may be abated by summary action or otherwise pursuant to the law which relates to the abatement of public nuisance.
The director shall eradicate camelthorn wherever it exists in this state.
The expense incurred by the director in eradicating camelthorn shall be borne as follows:
One-third by the state, to be paid out of any sum appropriated for such purpose.
One-third by the county in which the land is located on which such camelthorn exists.
One-third by the owner of the land.
The board of supervisors may direct the commissioner to proceed with the abatement of the camelthorn pursuant to Chapter 6 (commencing with Section 5401), Part 1 of this division. If the commissioner does so, the board of supervisors shall allow and pay the share of the county and the share of the owner of the land out of the general fund of the county.
CHAPTER 1.5. Broomrape Program [7401. - 7441.]
ARTICLE 1. General Provisions [7401. - 7402.]
The Legislature hereby finds and declares all of the following:
Broomrape is an invasive weed that presents a clear and present danger to California’s agricultural industry due to its harmful impact on crop yields and land values of commercial food crops, including, but not limited to, lettuce, tomato, cauliflower, potato, hemp, eggplant, pomegranate, peppers, beans, peas, carrot, celery, mustard, spinach, sunflower, safflower, and fennel. Susceptible food crops, with an economic value at nearly six billion dollars ($6,000,000,000), may experience up to 70 percent annual crop losses in areas infested with broomrape. Broomrape also impacts commercial seed production and can make agricultural land unusable for planting susceptible crops for decades.
Broomrape represents a clear and present danger to California’s natural environment, with susceptible hosts comprising native California flora, including rare or endangered species, such as showy Indian clover (T. amoenum), Buck’s clover (T. buckwestiorum), and Monterey clover (Trifolium trichocalyx). The potential long-term damage to California’s native biodiversity and environment from this pest may be irreparable and action must be taken to ensure the maintenance, restoration, enhancement, or protection of the environment by developing and involving regulatory procedures for protection of the environment.
The state’s agricultural economy and environment could be rapidly and seriously damaged if measures are not expanded to prevent the spread of broomrape, which can produce an estimated 10,000 to 100,000 seeds per infectious plant.
Financial support for the purposes of this chapter shall be provided by commodities designated in this chapter or included by the board and concurred in by the secretary in accordance with procedures specified in this chapter, and by public funds when available.
The necessity of controlling broomrape is recognized as being in the public interest.
This chapter is enacted in the exercise of the police power of the state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
There is hereby established in the department a Broomrape Program.
ARTICLE 2. Definitions [7405. - 7405.]
Unless the context requires otherwise, the following definitions govern the construction of this chapter:
“Board” means the Broomrape Board.
“Broomrape” or “Orobanche” means a small parasitic herbaceous plant.
“Districts” consists of the following geographical areas:
District 1: The Counties of Butte, Colusa, Glenn, Placer, Solano, Sutter, Yolo, and Yuba.
District 2: The Counties of Alameda, Contra Costa, Sacramento, San Benito, San Joaquin, Santa Clara, and Stanislaus.
District 3: The Counties of Fresno, Madera, Merced, Monterey, San Luis Obispo, Santa Barbara, and Santa Cruz.
District 4: The Counties of Imperial, Kern, Kings, Riverside and Tulare, and that portion of the County of Los Angeles lying north of the San Gabriel Mountains.
When necessary to accomplish the purposes of this chapter, additional areas of the state may be added to these districts or additional districts may be established through regulation when recommended by the board and approved by the secretary.
“Handler” means a person or entity who receives tomatoes from a producer and who prepares the tomatoes for processing.
“Person” means a producer, handler, or any other entity that holds title to tomatoes subject to assessment pursuant to this chapter.
“Producer” means a person engaged in the commercial production of processing tomatoes in California.
ARTICLE 3. Broomrape Board [7410. - 7413.]
There is hereby established in the department a Broomrape Board.
The secretary shall appoint at least 12 members to the board. The board shall consist of at least three representatives from each district and shall be comprised of persons recommended by the tomato industry and approved by the secretary.
The term of service and other board related operational issues shall be established by the board and approved by the secretary.
The secretary may appoint a public member to the board from a list of persons provided by the board who do not have a financial interest in any commodities subject to this chapter but may have general knowledge of commercial agricultural practices. The public member shall have the same voting and other rights and immunities as other members of the board.
The secretary, in consultation with the board, may appoint nonvoting ex officio members to the board, including, but not limited to, county agricultural commissioners, pest control advisors, and representatives of the University of California and California State University system.
Persons appointed to the board are intended to represent and further the interest of the particular agricultural commodities concerned, and that the representation and furtherance is intended to serve the public interest and accordingly is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
A member or agent of the board shall not be personally liable for the actions of the board or the department. A member or agent of the board shall not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, by either commission or omission, as a principal, agent, or employee except for their own individual acts of dishonesty or crime. A member or agent of the board is not responsible individually for an act or omission of any other member or agent of the board or the department. Liability is several and not joint, and a member or agent of the board is not liable for the default of any other member or agent of the board or the department.
ARTICLE 4. Powers and Duties [7420. - 7424.]
The board shall recommend specific actions to the secretary, including, but not limited to, all of the following:
Conducting research related to broomrape.
Disseminating technical information and progress reports to stakeholders.
Surveying, detecting, analyzing, and treating causes of broomrape.
Funding activities, including, but not limited to, grants that may be required to accomplish the purposes of this chapter.
Establishing an annual assessment rate or schedule of rates that shall be paid equally by producers and handlers.
Establishing an annual budget.
Specifying other commodities produced in California that shall be subject to this chapter, increasing membership on the board to include producers and handlers of those commodities, and establishing an assessment rate consistent with expenditures needed to accomplish the purposes of this chapter.
Adoption of regulations recommended by the board relating to broomrape.
Upon receipt of a recommendation from the board for the adoption of regulations, the secretary shall do one of the following:
Initiate appropriate action to implement the recommendation of the board.
Decline to initiate action on the recommendation of the board and provide the board with a written statement of reasons for the decision.
Request that the board provide additional information regarding the recommendation.
The secretary may appoint a statewide coordinator to establish the board and enact any activities specified in this chapter.
The board shall authorize reimbursement of the secretary for all expenditures incurred by the secretary in carrying out the duties and responsibilities specified in this chapter.
The secretary shall not receive reimbursement for costs that exceed expenditures authorized in the annual budget without first receiving authorization from the board.
ARTICLE 5. Fund and Assessments [7430. - 7434.5.]
There is hereby created the Broomrape Management Account in the Department of Food and Agriculture Fund.
The Broomrape Management Account may consist of funds made available from federal, industry, and other nonpublic fund sources. Money made available from federal, industry, and other nonpublic sources shall be continuously appropriated and made available for expenditure without regard to fiscal year for the purposes of this chapter.
Any funds within the Broomrape Management Account shall be used to reimburse the secretary for the costs of carrying out recommendations of the board.
The board shall recommend an assessment rate or schedule of rates for approval by the secretary.
The secretary may adjust the assessment rate or schedule of rates from time to time when recommended by the board.
The assessment rate or schedule of rates may vary from district to district and from commodity to commodity based on multiple factors, including the degree of vulnerability to damage from broomrape experienced by producers.
The assessments collected from producers shall be paid by handlers to the secretary as provided by the secretary.
Any assessment that is imposed on the producer or handler pursuant to this article is a personal debt of the person assessed.
Failure to collect the assessment does not exempt the person assessed from liability and does not relieve a person from the obligation to pay the assessment.
Any person who fails to file a report or pay the assessment or otherwise comply with this chapter shall pay a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 1.5 percent interest per month on the unpaid balance of the assessment and the penalty.
Any funds received pursuant to this article shall be deposited and handled in a manner determined by the board and shall be expended for the purposes, administration, and enforcement of this chapter.
To the extent that revenue generated from Section 7430 is insufficient to repay the expenditures associated with this program, the Department of Food and Agriculture Fund shall be held harmless, and the secretary shall not be required to administer the provisions of this chapter.
Any costs incurred by the department in establishing, administering, and enforcing the provisions of this chapter shall be solely reimbursed by the assessment. These costs include, but are not limited to, startup costs incurred by the department before collecting the assessment, the costs of developing any regulations pursuant to this chapter, and the ongoing costs associated with the statewide coordinator.
ARTICLE 6. Enforcement [7435. - 7435.]
The secretary may establish regulations and enforcement provisions for purposes of this chapter consistent with the intent expressed in this division and any action shall be liberally construed to effectuate the intent of this chapter.
ARTICLE 7. Operation [7440. - 7441.]
This chapter shall become inoperative on July 1, 2028, and, as of January 1, 2029, is repealed.
Upon the inoperative date of this chapter, any remaining funds received pursuant to this chapter shall be refunded on a pro rata basis to all persons from whom assessments were collected during the 12-month period before the inoperative date, unless the secretary finds the amounts returnable are minimal and therefore impractical to refund, or the person who paid the assessment cannot be located, in which case the funds may be used for broomrape control or related research activities.
CHAPTER 2. Pest Seeds [7501. - 7603.]
ARTICLE 1. General Provisions [7501. - 7503.]
It is unlawful for any person to disseminate the seed of any pest within this state.
The enforcement of this chapter is under the supervision of the director. He shall make such regulations as he may deem necessary to properly carry out the provisions of this chapter.
The provisions of this chapter are in addition to the requirements which are specified in the following provisions of this code:
Article 1 (commencing with Section 5701), Chapter 8, Part 1 of this division.
Article 2 (commencing with Section 5721), Chapter 8, Part 1 of this division.
Article 3 (commencing with Section 5741), Chapter 8, Part 1 of this division.
Article 3 (commencing with Section 6341), Chapter 1, Part 2 of this division.
Chapter 3 (commencing with Section 6501), Part 2 of this division.
Chapter 2 (commencing with Section 52251) of Division 18.
ARTICLE 2. Certificates [7531. - 7534.]
To prevent the dissemination of the seed of any pest through the medium of crop seed for planting, the commissioner of each county may issue certificates which state that the crop seed is free from the seed of any pest.
The commissioner may issue the certificate if all of the following requirements are complied with:
The applicant is the grower of any crop seed within this state.
The applicant notifies the commissioner who has jurisdiction where such crop seed is being grown of his intention to harvest the crop seed for planting purposes not less than 10 days prior to the date of harvest of such crop seed.
The applicant, after notice to him of such requirement, has complied with any requirement of the commissioner with respect to the removal of any pest which is growing in the crop and which may be harvested with the crop seed.
The commissioner, upon receipt of a notice from any person who is the grower of any crop seed within the commissioner’s jurisdiction of such person’s intention to harvest crop seed not less than 10 days prior to the date of harvest, may cause a field inspection to be made of such crop. If any pest is found growing in such crop, the seed of which may be harvested with such crop seed, the commissioner shall serve a notice which specifies the particular pest that is growing in such crop and the methods to be used in removing the pest which is found in the crop.
It is unlawful for any person to alter, deface, or otherwise misuse a certificate which is issued pursuant to this article.
ARTICLE 3. Seed Screenings and Cleanings [7571. - 7581.]
Except as otherwise provided in Section 7572, it is unlawful for any person to move any seed screenings or cleanings from crop seed from the place where they may be unless one of the following first has been done:
The seed screenings or cleanings have been inspected by the commissioner and found to be free from the seed of any pest.
The seed screenings or cleanings have been processed under the supervision of, and to the satisfaction of, the commissioner by grinding, or otherwise, to render the seed of any pest incapable of reproduction.
The commissioner may permit the movement of seed screenings or cleanings for the purpose of destruction or processing.
If, upon inspection by the commissioner, any seed screenings or cleanings from crop seed are found to contain the seed of any pest, the commissioner shall give notice in writing of such fact to the person in possession of the screenings or cleanings. The notice shall order that the screenings or cleanings be processed or destroyed, as provided in this article, within 60 days.
If the person that is notified by the commissioner is not the owner of the screenings or cleanings, the person so notified shall forthwith transmit the notice to the owner. He shall cause the screenings or cleanings to be processed or destroyed, as directed by the owner, pursuant to the provisions of this article.
If the owner fails or neglects to direct the disposition of the screenings or cleanings within 10 days after the notice has been transmitted to him, the person in possession of the screenings or cleanings, at his option, may do one of the following:
Cause the screenings or cleanings to be processed and return to the owner the value of the screenings or cleanings less the cost of handling.
Destroy the screenings or cleanings. He is not liable to the owner for the destruction of such screenings or cleanings.
Any lot of seed screenings or cleanings from crop seed which contains the seed of any pest, together with its containers, is a public nuisance. If such lot is not disposed of pursuant to this article, it is subject to seizure on complaint of the director or the commissioner to a court of competent jurisdiction.
The district attorney of the county in which the nuisance is found, at the request of the director or the commissioner, shall maintain, in the name of the people of the State of California, a civil action to abate and prevent such nuisance.
Upon judgment and by order of the court, the lot which is a nuisance shall be handled in one of the following ways:
Condemned and destroyed in the manner directed by the court.
Denatured or otherwise processed to render the seed of any pest incapable of reproduction.
Released upon such conditions as the court may impose to insure that the nuisance will be abated.
If the owner fails to comply with the order of the court within the time which is specified in the order, the court may order disposal, or sale, under such terms and conditions as the court may prescribe, by the director or the commissioner, or by the sheriff or marshal.
If the court orders the sale of any of the seed screenings or cleanings from crop seed, or containers, which can be salvaged, the cost of disposal shall be deducted from the proceeds of sale and the balance paid into court for the owner.
A proceeding pursuant to this article where the value of the property seized amounts to thirty-five thousand dollars ($35,000) or less is a limited civil case.
ARTICLE 4. Crop Seed Cleaning Business [7601. - 7603.]
Every person, before engaging for hire in the business of cleaning crop seed, shall obtain a permit from the commissioner to operate each separate portable seed cleaner which is being used for the first time in the county.
Upon application by the owner for such permit or if the commissioner deems it necessary to determine that the cleaner is free from the seed of any pest, the commissioner may cause an inspection to be made of the cleaner of each permittee.
The permit may be suspended or revoked by the commissioner at any time the permittee does not comply with any of the provisions of this division, or any regulations which are adopted pursuant to this division by the director relative to preventing the dissemination of the seed of any noxious weed pest.
PART 4.5. Invasive Species Council of California [7700. - 7708.]
There is in state government the Invasive Species Council of California. The purpose of the council is to help coordinate a comprehensive effort to prevent the introduction of invasive species in the state and to advise state agencies, including, but not limited to, the department and the Natural Resources Agency, within their respective authorities how to facilitate coordinated, complementary, and cost-effective control or eradication of invasive species that have entered or are already established in the state.
In all activities of the council pursuant to this part, the council shall prioritize all of the following:
Exclusion and prevention practices to keep invasive species from entering the state.
Early detection and rapid response to keep invasive species of limited distribution from spreading in the state.
Integrated pest management for controlling invasive species already established in the state.
This part shall not prohibit the department from serving as the state’s governing authority in invasive pest and plant management, as specified in this division.
The Invasive Species Council of California shall consist of the following six members:
The secretary or their designated representative.
The Secretary of the Natural Resources Agency or their designated representative.
The Secretary for Environmental Protection or their designated representative.
The Secretary of Transportation or their designated representative.
The Secretary of California Health and Human Services or their designated representative.
The Director of Emergency Services or their designated representative.
The Secretary of the Natural Resources Agency or their designated representative and the secretary or their designee shall serve as cochairs of the council.
The Invasive Species Council of California shall meet annually and as needed as determined by the cochairs.
The secretary may designate a staff liaison to further the purposes of this part.
The Invasive Species Council of California may establish advisory committees and ad hoc working groups, as necessary, to advise on a broad array of issues related to preventing the introduction of invasive species and providing for their control or eradication, as well as minimizing the economic, ecological, and human health impacts that invasive species cause.
The advisory committees and working groups may consist of representatives from state agencies, federal agencies, county agricultural commissioners, academia, nonprofit organizations, tribal nations, industry representatives, and members of the public.
For purposes of this section, the following definitions apply:
“Integrated pest management” has the same meaning as defined in Section 11401.7.
“Invasive species” means nonnative organisms that cause, or are likely to cause, economic or environmental harm. “Invasive species” does not include humans, domestic livestock, domestic or domesticated species exempted pursuant to Section 2118 of the Fish and Game Code, or nonharmful nonnative organisms.
Upon the appropriation or transfer of adequate moneys to the Invasive Species Account, created pursuant to Section 7706, the Invasive Species Council of California may make recommendations on invasive species projects and activities, including, but not limited to, any of the following:
To assist state, federal, and local agencies to prevent the introduction of invasive species.
To relevant state agencies and departments regarding any of the following:
Detection, control, and eradication of invasive species, including emergency and nonemergency detection and rapid response.
Development and maintenance of statewide surveys and mapping of high-risk areas.
Improvement of inspections at state and national boundaries to prevent the introduction of invasive species.
To develop comprehensive reports on the ecological, agricultural, and economic impacts of invasive species.
To develop statewide education, outreach, and branding of invasive species.
To increase coordination and collaboration among invasive species partners.
To develop statewide invasive species action plans, including the plan required pursuant to Section 7708.
To host an annual California Invasive Species Summit to develop new recommendations and to coordinate invasive species activities.
To develop a report containing activities of the Invasive Species Council of California and recommendations to improve invasive species management.
The council shall submit the report developed pursuant to this subdivision to the Legislature and the Governor.
A report to be submitted to the Legislature pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.
The Invasive Species Council of California may establish the California Invasive Species Advisory Committee, which shall consist of the following 19 members:
Four members designated by the secretary.
Four members designated by the Secretary of the Natural Resources Agency or his or her designated representative.
One member appointed by the Secretary for Environmental Protection or his or her designated representative.
One member appointed by the Secretary of Transportation or his or her designated representative.
One member appointed by the Secretary of California Health and Human Services or his or her designated representative.
One member appointed by the Director of Emergency Services or his or her designated representative.
Six members appointed by the cochairs of the Invasive Species Council of California to create a diverse makeup of federal, nonprofit organization, tribal, industry, and other representatives.
One member appointed by the California Agricultural Commissioners and Sealers Association.
The Invasive Species Account is hereby established in the Department of Food and Agriculture Fund. Moneys in the account are available, upon appropriation by the Legislature, to the secretary for the purposes of funding invasive species projects and activities recommended by the Invasive Species Council of California.
Moneys in the Invasive Species Account appropriated by the Legislature for allocation by the secretary for the purposes of this part may be allocated without regard to fiscal year.
The Invasive Species Council of California shall coordinate with state and local public agencies, publicly funded educational institutions, and stakeholder groups to develop a plan for the cure or suppression of diseases associated with the spread of invasive shot hole borers, including, but not limited to, the Polyphagous and Kuroshio shot hole borers.
Upon the completion of the plan required pursuant to subdivision (a), the department, subject to the availability of appropriations for those specified purposes, shall support the efforts of state and local agencies, California Native American tribes, and nonprofits to cure or suppress the diseases affiliated with the invasive shot hole borer infestation as provided in paragraph (2).
Support provided by the department pursuant to this section may include, but is not limited to, the following:
Grants to support research related to the identification of infected trees and methods to prevent further infestation.
Grants to state and local agencies, California Native American tribes, and nonprofits to support suppression or cure efforts.
No state moneys shall be awarded to a local agency pursuant to subdivision (b) unless the local agency has contributed from local resources a dollar amount that is equal to the dollar amount of state moneys to be awarded or the local agency is located in a disadvantaged community, as identified pursuant to Section 39711 of the Health and Safety Code.
PART 5. CITRUS PEST DISTRICT CONTROL LAW [8401. - 8759.]
CHAPTER 1. Definitions and General Provisions [8401. - 8410.]
This part shall be known as the Citrus Pest District Control Law.
It is the purpose of this part to make available a procedure for the organization, operation, government, and dissolution of districts for the more effective control and eradication of citrus pests, whichever products the district is established to protect.
Unless the context otherwise requires, the definitions in this chapter govern the construction of this part.
“Board” means the board of directors of a district.
“Citrus acreage” means any parcel, tract, or lot of land with 25 or more citrus trees of any age growing on it, except a parcel, tract, or lot which is used as a nursery.
“Citrus pest” includes any infectious, transmissible, or contagious disease, any form of animal life, or any form of vegetable life infesting citrus trees or citrus fruits.
“District” means a citrus pest control district organized pursuant to this part.
“Number of trees per acre of average planting,” for the purpose of assessment pursuant to this part, shall be 100 trees per acre.
“Owner” includes joint owner, coowner, guardian, executor, administrator, or any other person that holds property in a trust capacity under appointment of court.
“Citrus” includes “citrous” and any plants of the genera Citrus, Fortunella, Poncirus, and all hybrids having one or more of such as parents.
CHAPTER 2. Formation of Districts [8451. - 8465.]
Proceedings for the formation of a district within any county shall be commenced by a petition which is signed by the owners of not less than 51 percent by area of the land in the proposed district within the county devoted exclusively to the growing of citrus fruits. The petition shall be addressed to, and filed with, the board of supervisors of the county.
The petition may be filed in sections each of which shall comply with all the requirements for a petition, except that a section need not contain the total number of signatures required for the petition.
Signatures to the petition may be withdrawn at any time before it has been acted upon by filing with the clerk of the board of supervisors a declaration signed by the petitioner which states that it is the intention of the petitioner to withdraw his signature from the petition.
The petition shall state the name of the proposed district and shall set forth its boundaries or describe the lands to be included in it.
It is a sufficient designation of the boundaries of a proposed district to recite that all the citrus acreage in the county is to be included in the district, or that all the citrus acreage in a designated area within the county is to be included in the district.
If either designation is used, the outside boundary of the area so designated is the boundary of the district and the district shall include all area within the outside boundary, if the district is formed pursuant to this part.
Upon the presentation and filing of a petition, the board of supervisors shall fix a time and place for the hearing of the petition and shall refer the petition to the commissioner for investigation and report.
The hearing shall not be less than 20 days, nor more than 40 days after such presentation and filing.
The board of supervisors shall order the clerk of the board of supervisors to give notice of the time and place fixed for the hearing upon the petition.
The notice of hearing shall do all of the following:
State the name of the district and that it is being formed for the eradication and control of citrus pests.
State the petition is available for inspection at the office of the clerk of the board of supervisors.
Designate the boundaries of the proposed district in substantially the same way that they are described in the petition.
State the time and place for the hearing.
State that at the hearing protests will be considered by the board of supervisors.
State that requests in writing for the exclusion of lands, from, or the inclusion of lands in, the proposed district will be heard and considered by the board of supervisors.
Notice of the hearing shall be given by publication in a newspaper of general circulation published and circulated in the district.
The notice shall be published once a week for two successive weeks prior to the date set for the hearing.
At the hearing, the report of the commissioner shall be received and protests may be made orally or in writing by any person interested in the formation of the proposed district. Any protest which pertains to the regularity or sufficiency of the proceedings shall be in writing and shall clearly set forth the irregularities and defects to which objection is made. All written protests shall be filed with the clerk of the board of supervisors on or before the time fixed for the final hearing. The hearing may be continued from time to time not exceeding 60 days.
At the hearing, any owner of citrus acreage in the proposed district may present to the board of supervisors a request in writing for the exclusion of that land or any part of that land from, and any owner of citrus acreage outside the proposed district may present to the board of supervisors a request in writing for inclusion of the land in, the proposed district.
If the board of supervisors determines that the petition does not comply with the requirements of law, the matter may be dismissed without prejudice to the right to present a new petition covering the same matter. A finding by the board of supervisors in favor of the genuineness and sufficiency of the petition and notice is final and conclusive against all persons except the state in a proceeding brought by the Attorney General within one year of the date of the making of the order establishing and describing the boundaries of the district.
If the board of supervisors determines that the project is feasible and in the interest of the citrus growers of the county, the board of supervisors shall, by order entered in its minutes, declare the district duly organized under the name designated in the petition for the formation of the district.
The order shall describe the territory included in the district and, if the board of supervisors does not exclude or include land pursuant to Section 8465, it is a sufficient description of the territory to describe the boundaries in substantially the same way as they are described in the petition. A copy of the order duly certified by the clerk of the board of supervisors shall be filed for record in the office of the county recorder of the county in which the district is situated.
Any district formed prior to March 2, 1961, in which the order of the board of supervisors adopted the description in general terms as it appears in the petition is hereby validated.
In determining the boundaries of the district, the board of supervisors shall exclude from the district any citrus acreage which it finds will not be benefited by the proposed project, and it may include in the district any lands which it finds will be benefited if it also finds it will be to the interest of the district to include these lands. The inclusion may be upon application of the owner or, without the owner’s application, upon giving the owner notice of the proposed inclusion and an opportunity for a hearing on it.
Notice of inclusion shall be mailed, postage prepaid, by the clerk of the board of supervisors, to the address of the owner of the land as shown by the last equalized county assessment roll, and to any person that has filed with the clerk that person’s name and address and description of land in which he or she has either a legal or equitable interest. The notice shall describe the land proposed to be included, and shall state the time and place at which objections to the inclusion will be heard.
CHAPTER 3. Organization of Districts [8501. - 8508.]
Upon the adoption of the order of organization, the board of supervisors shall immediately appoint a board of directors of five members to administer the affairs of the district.
In order to be eligible to hold the office of director of the district, a person shall be a citizen of the United States and of this state, and an owner of lands within the district which are devoted, in whole or in part, to the growing of the product for which the district is established.
Upon his appointment, each director shall, in the manner provided by law, give such official bond for the faithful performance of his duties as shall be fixed by the board of supervisors and shall subscribe the oath of office and such bond and oath shall be filed with the county clerk.
From and after the filing for record of the order of the board of supervisors declaring the district organized, and the appointment and qualification of its first board of directors, the organization of the district is complete.
Immediately after the organization of the district, the directors shall meet and organize as a board and shall elect a chairman, a vice chairman, a secretary, and an assistant secretary, from among their own number.
The chairman shall call and preside at all meetings of the board, sign all warrants drawn on the county treasurer and all contracts and other documents, and the minutes of all meetings at which he is present. In case of his absence from a meeting, the vice chairman shall act as chairman pro tempore for him. The vice chairman has the authority to sign warrants in place of the chairman if the chairman is absent from a meeting or unavailable.
The secretary shall give notice of and keep the minutes of all meetings and prepare and have custody of all records and papers, and have custody of the seal of the district. He or the assistant secretary shall attest all warrants drawn on the county treasurer, all contracts and other documents and shall sign the minutes of all meetings at which he is present. He shall prepare the annual reports and any other reports required by the board and shall prepare all notices and all calls for bids. In case of his absence from a meeting, the assistant secretary shall perform his duties.
The members of the board shall serve for terms of four years and until the appointment and qualification of their successors.
The terms of the members of the first board appointed by the board of supervisors shall divide themselves by lot and one member shall serve for a term of one year, one member shall serve for a term of two years, one member shall serve for a term of three years, and two members shall serve for a term of four years.
Upon the expiration of the term of any member of the board, the board of supervisors shall appoint his successor.
Vacancies shall be filled by the board of supervisors for the unexpired term.
The members of the board are not entitled to any compensation for their services, but may be reimbursed for their actual and necessary expenses, when claims for such expenses have been approved by the board.
CHAPTER 4. Powers and Duties of the District [8551. - 8568.]
The district shall have perpetual succession and may do all of the following:
Sue and be sued in all actions and proceedings in all courts and tribunals of competent jurisdiction.
Adopt a seal and alter it at pleasure.
Take by grant, purchase, gift, devise, lease, or otherwise, and hold, use and enjoy, and lease, or otherwise dispose of, real and personal property of every kind and description within or without the district necessary to the full and convenient exercise of its powers.
Cause assessments to be levied, as provided in Chapter 5 (commencing with Section 8601) to pay any obligation of the district and to accomplish the purposes of the district in the manner provided in this part.
Make contracts, and employ, except as otherwise provided in this part, all persons, firms, and corporations necessary to carry out the purposes and the powers of the district, and at any salary, wage, or other compensation as the board of directors shall determine.
Eradicate, remove, or prevent the spread of any and all citrus pests.
Enter into or upon any land included within the boundaries of the district for the purpose of inspecting and treating the citrus trees and other host plants and fruit growing on them.
Perform any and all acts either within or outside the district necessary or proper to fully and completely carry out the purposes for which the district was organized.
Every district formed pursuant to this part has all of the powers prescribed by Section 8551 and other sections of this part, including the power to eradicate, remove, or prevent the spread of each and every citrus pest, regardless of any language in the petition for formation for any district or in any of the proceedings leading to formation which might seem to limit the power of the district to the control or eradication of one or more citrus pests in particular.
A district may pay limited compensation to the owner of any citrus tree infected with citrus tristeza virus which is removed by the district or by the owner within 15 days after written notice of the infection to the owner by the district. The limited compensation shall not exceed the following payment schedule, with the age of the tree being conclusively established as of the time written notice of the infection is first given to the owner.
The schedule of payments is as follows:
For the purposes of this section, the holder of the record title of the real property on which the trees are located shall be considered to be the owner of the citrus trees to whom written notice of infection is given.
The written notice referred to in subdivision (a) shall be a written or printed document labeled “Notice of Infection,” addressed to the owner and informing the owner of the existence of the infected trees, their location, and that they should be removed forthwith.
For the purposes of determining the age of infected citrus trees under this section, trees shall be considered one year old as of the January 1st succeeding the calendar year in which they are planted, and shall be deemed one year older on the January 1st of each succeeding year.
In order to expedite the elimination of the source of citrus tristeza virus, if it appears to the board that the cost of testing, indexing, or retesting trees to determine infection may exceed the cost of removal, plus the payment of limited compensation, a district may, with the consent of the owner, remove and pay limited compensation pursuant to Section 8553 for trees which have not been determined to be infected with citrus tristeza virus.
The commissioner of the county in which the district is located shall, upon request of the board and without fee or charge, supervise and direct, in accordance with the best known and accepted methods as determined by the board, all activities undertaken by the district for the control or eradication of citrus pests.
The board shall, immediately after its qualification, formulate an effective plan based on the best known and accepted methods for the control and eradication of the citrus pests within the district.
After the final adoption of the plan, the board shall make or cause to be made an estimate of the cost of operating the plan for the next fiscal year beginning not sooner than 90 days thereafter.
Within 30 days after the receipt of the estimate, the board shall adopt a preliminary budget of expenditures for such fiscal year.
Upon the adoption of the preliminary budget, the board shall fix a time and place for holding a hearing thereon.
The hearing shall not be less than 20 days, nor more than 40 days, after the adoption of the preliminary budget.
The board shall give notice of the time and place fixed for the hearing upon the preliminary budget by publication in a newspaper of general circulation published and circulated in the district.
The notice shall be published once a week for two successive weeks prior to the date set for the hearing.
The notice shall contain all of the following:
A summary of the proposed budget and shall refer to the original on file with the board for further particulars.
State that it is the intention to raise the amount of money required to meet the proposed budget by levying an assessment upon the assessed value of the citrus trees within the district in accordance with this part.
A statement of the day, hour, and place, when and where any and all persons interested may appear and object to the adoption of the budget or to any item in it.
At any time not later than the hour set for hearing objections to the proposed budget, any owner of citrus acreage in the district may make written protest against the budget or any item in it.
At the time set for hearing protests, the board shall proceed to hear and pass upon all protests so made and its decision on the protests shall be final and conclusive.
At the conclusion of the hearing, the board shall by resolution entered on its minutes make such changes in the proposed budget as it finds are proper and advisable. The tentative budget as so changed or modified shall be the budget of the district for the forthcoming fiscal year.
There may be added to the budget for the first fiscal year of the operation of the district an amount not in excess of 20 percent of the total amount of the budget to cover the preliminary expenses of the district and for the expenses of operation up to the beginning of the first fiscal year.
For each fiscal year subsequent to the first year of operation of the district, the board shall adopt the final budget therefor in the same manner and at the same time that the budget for the first fiscal year was adopted.
CHAPTER 5. Levying and Assessing Taxes for District Purposes [8601. - 8610.]
The county assessor, in making the annual assessment of property in each and every year after the organization of the district, shall assess any parcel of real property with 25 or more citrus trees on it and enter as a separate item, on the assessment roll for each such parcel of real propety included in the district, the value, as improvements on the parcel, of all citrus trees which are growing on it.
For the purpose of this part, the county assessor shall assess all citrus acreage at a uniform value per acre. The assessment shall be upon an acreage basis and the number of acres shall be determined conclusively, except as otherwise provided in this section, by the assessor counting the trees and dividing the total number by the number of trees per acre of average planting. The county assessor in counting the citrus trees shall not, however, count any more than 200 trees on any one acre of land, and for any citrus acreage which has from 70 to 100 trees per acre the number of acres to be determined by the county assessor shall be the actual acreage of the parcel.
Upon completing the assessment roll of the county in each year, the assessor shall separately compute and certify, to the board of supervisors, the total assessed value, as shown by the assessment roll, of all the citrus trees in the district.
Whenever acreage within the district is planted with citrus trees in such a fashion as to qualify as citrus acreage, the acreage is subject to assessment as provided in this part.
Whenever any citrus trees have been removed from any parcel of land included in the district, the owner of the parcel of land may file with the board an affidavit particularly describing the parcel of land, and setting forth the fact of the removal therefrom of the trees. Thereupon, the board shall cause an investigation of the parcel of land to be made and, if the board finds the allegations of the affidavit are true, the board shall immediately certify this fact to the county assessor and the amount of citrus acreage removed shall not be assessed on the next assessment roll.
The board shall, on or before the first Monday in July of each year, file with the board of supervisors the final budget which sets forth all estimated expenditures of the district for the fiscal year commencing on the first day of July. A copy of the budget shall also at the same time be filed with the auditor of the county.
The board of supervisors shall annually, at the time of levying other county taxes, levy an assessment upon all the citrus trees planted or growing in the district, regardless of age, as assessed by the assessor pursuant to this part. The rate shall be such as will produce, after due allowance for delinquency, the amount determined as necessary to be raised on the secured roll. If a fraction of a cent occurs on a valuation of one hundred dollars ($100), it shall be taken as a full cent.
The assessment authorized to be assessed and levied is hereby declared to be in the nature of a special assessment, and the Legislature hereby finds that the owners of all citrus trees will be benefited by the district to the same extent and in the same manner regardless of the age of the trees. The assessments authorized by this chapter to be assessed and levied on the trees shall be assessed and levied on all citrus trees regardless of their age.
The tax so levied shall be computed and entered upon the assessment roll by the county auditor, and if the supervisors fail to levy the tax as required, the auditor shall do so. The tax shall be collected at the same time, and in the same manner as, and together with and not separate from, general county taxes, and when collected shall be paid into the county treasury for the use of the district.
The general provisions of the laws of this state, prescribing the manner of levying and collecting county taxes and the duties of the several county officers with respect to levying and collecting county taxes, are, so far as they are applicable and not in conflict with the specific provisions of this part, hereby adopted and made a part of this part. The several county officers thus referred to shall be liable upon their several official bonds for the faithful discharge of the duties imposed upon them by this part.
The county treasury shall be the repository of all the moneys of the district. The county treasurer shall receive and receipt for all such moneys, and place the same to the credit of the district. He shall be responsible upon his official bond for the safekeeping and disbursement, in the manner provided in this part, of all moneys of the district so held by him.
If a consolidated district includes parts of two or more counties, the repository of all money of the district shall be the county treasury of the county in which is located the largest area of the district. Money collected for the use of the district in any other county in which a part of the district is located shall be transferred by the county treasurer upon warrant of the county auditor of the county in which the money was collected to the county treasurer of the county serving as repository for the district, in the same manner as prescribed for the disbursement of money held for a local district. Money derived from any county in which the district is located may be expended in any part of the district for the purposes authorized by this part, notwithstanding any other provision of law limiting the expenditure of any such money to a specific area or county.
The county treasurer shall pay out money of the district only upon warrants of the county auditor drawn upon the order of the board of directors of the district signed by the chairman or vice chairman and attested by the secretary or assistant secretary. The county treasurer, with the approval of the board of supervisors, shall pay out the money of the district upon one master warrant of the county auditor drawn upon the order of the board of directors of the district and signed by the chairman or vice chairman and attested to by the secretary or assistant secretary, to meet the district’s expenses, including salaries, at such intervals as is approved by the board of supervisors. The county treasurer shall report in writing on the first day of July, October, January, and March of each year, to the board the amount of money he then holds for the districts, the amount of receipts since his last report, and the amounts paid out. Each such report shall be verified and filed with the secretary of the district to whom it is addressed.
CHAPTER 6. Inclusion of Lands [8651. - 8651.]
Lands devoted exclusively to the growing of citrus fruits within a tract of land outside the district but in the county wherein the district is located may be annexed to the district.
CHAPTER 7. Consolidation [8701. - 8707.]
Any two or more districts organized or existing under this part may be consolidated, whether or not the boundaries are coterminous and whether or not the districts are located in the same county.
Proceedings for consolidation may be initiated by the filing of a petition for consolidation with the board of each district to be consolidated. Each petition shall be signed by the owners of 51 percent by area of the citrus land in the district. Upon the filing of a petition, the board of directors shall adopt a resolution which recites the fact of receipt and the willingness of the district to consolidate, and shall then send copies of the petition and resolution to the board of directors of each of the other districts. The board shall send the original petition and a certified copy of the resolution to the board of supervisors of the county in which is located the largest area of citrus acreage of the proposed consolidated district, and a copy of the petition and resolution to the board of supervisors of each of the other counties in which is located any part of the proposed consolidated district.
Upon presentation and filing of the petitions of two or more districts proposing consolidation, the board of supervisors of the county in which is located the largest area of citrus acreage of the proposed consolidated district shall fix a time and place for hearing the petitions. Notice shall be given and the hearing conducted in the same manner and with the same effect as prescribed for the formation of a district pursuant to Chapter 2 (commencing with Section 8451).
If the board of supervisors determines that the consolidation is feasible and for the best interests of the citrus growers of the respective districts, it shall by resolution duly adopted declare the districts consolidated into one district, giving the consolidated district a name which name shall include the term “consolidated.” Certified copies of the resolution shall be filed with the Secretary of State and, for record, with the county recorder of each county in which is located any part of the consolidated district. Upon the filing, the districts are consolidated into a single consolidated district with all the rights, privileges, and powers of a district. The consolidated district shall succeed to all the funds and other property, and is subject to all the indebtedness, bonded and otherwise, of the districts consolidated. Each district which is included in the consolidated district shall continue in existence for the purpose of representation on the board of the consolidated district, and for the purpose of levying, assessing, and collecting assessments for district purposes. The board of the consolidated district is, however, the board of each district which is included in the consolidated district.
Upon the adoption of a resolution consolidating two or more districts, the board of supervisors shall immediately appoint a board of directors of at least five members, including at least one member from each of the districts which are included in the consolidated district. If any of the districts which are included in the consolidated district includes more than 15,000 acres of citrus acreage, the board of directors shall be increased to a number equal to the number of districts which are included in the consolidated district, plus one additional director for each 10,000 acres, or major fraction of 10,000 acres, in any one district which is included in the consolidated district.
The board of a consolidated district has all the duties, powers, purposes, responsibilities, and jurisdiction of the board of any other district. The members of the board shall be appointed in the same manner and serve for the same term as the directors of any other district. If, however, the number of directors is increased to more than five, as provided in Section 8705, the sixth member of the first board shall serve for three years, the seventh for two years, and all in excess of seven for one year each.
Any district which has been included in a consolidated district may withdraw from the consolidated district and be reconstituted as a separate district by filing with the board of directors of the consolidated district a petition for withdrawal which is signed by the owners of not less than 51 percent by area of citrus land in the district. The board of directors of the consolidated district shall send the original petition to the board of supervisors of the county in which the withdrawing district is located, and a copy of the petition to the board of supervisors of each of the other counties in which is located any part of the consolidated district. Upon receipt of a petition for withdrawal, the board of supervisors of the county in which the withdrawing district is located shall fix a time and place for hearing the petition. Notice shall be given and the hearing conducted in the same manner and with the same effect as prescribed for the formation of a district under Chapter 2 (commencing with Section 8451). Upon withdrawal of a district, all moneys collected from the district for the use of the consolidated district, and all property purchased with these moneys, shall remain the property of the consolidated district. All moneys collected from a district after it withdraws from a consolidated district shall be held for the use of the district.
CHAPTER 8. Dissolution of Districts [8751. - 8759.]
Upon the filing of a petition with the board of supervisors, signed by the owners of not less than 60 percent by area of the citrus acreage in the district, requesting the dissolution of the district, the board of supervisors shall set a time and place for hearing on the petition, which shall not be less than 20 days, nor more than 40 days, after the filing of the petition.
The board of supervisors shall give notice of the time and place fixed for the hearing upon the petition for dissolution.
The notice of hearing shall state all of the following:
That a petition has been filed requesting the dissolution of the district.
That the petition is available for inspection at the offices of the board of supervisors.
The time and place for the hearing.
That at such hearing protests against the dissolution of the district shall be considered by the board of supervisors.
Notice of such hearing shall be given by publication in a newspaper of general circulation published and circulated in the district.
The notice shall be published once a week for two successive weeks prior to the date set for the hearing.
If, at the hearing, a majority of the members of the board of supervisors find that the dissolution of the district will benefit the citrus industry of the county, it shall by resolution dissolve the district.
The board of supervisors shall cause a certified copy of the resolution to be recorded in the office of the county recorder and shall file a certified copy of the same with the Secretary of State. Thereupon, the district is dissolved for all purposes.
Upon dissolution, the right, title, and interest to property owned or controlled by the district which is situated within the corporate limits of any city shall vest absolutely in such city. If such property is situated without the corporate limits of the city, it shall vest in the county in which the property is situated.
The board of supervisors is ex officio the governing body of the dissolved district. It may levy such taxes and assessments and perform such other acts as may be necessary to wind up the affairs of the district and to raise money for the payment of any outstanding indebtedness.
PART 5.5. OLIVE, STONE, AND POME FRUIT PEST DISTRICT CONTROL LAW [8760. - 8772.]
CHAPTER 1. General Provisions [8760. - 8772.]
This part shall be known as the Olive, Stone, and Pome Fruit Pest District Control Law.
All of Part 5 (commencing with Section 8401) applies to olive, stone, and pome fruit pest control districts and is hereby incorporated in this part as though set forth in full in this part unless a provision in this part expressly states that the provision is not applicable to this part.
Any district formed pursuant to Part 5 (commencing with Section 8401) to control and eradicate olive, stone, and pome fruit pests shall continue in existence without further proceedings and shall be subject to this part.
It is the purpose of this part to make available a procedure for the organization, operation, government, and dissolution of districts for the more effective control and eradication of olive, stone, and pome fruit pests, whichever products the district is established to protect.
Proceedings for the formation of a district within any county shall be commenced by a petition that is signed by the owners of not less than 51 percent by area of the land in the proposed district, which may be composed of noncontiguous parcels within the county devoted exclusively to the growing of olive, stone, and pome fruit trees. The petition shall be addressed to, and filed with, the board of supervisors of the county.
In determining the boundaries of the district, the board of supervisors shall exclude from the district any olive, stone, and pome fruit acreage that it finds will not be benefited by the proposed project, and it may include in the district any noncontiguous lands that it finds will be benefited if it also finds it will be in the interest of the district to include these lands. The inclusion may be upon application of the owner or, without the owner’s application, upon giving the owner notice of the proposed inclusion and an opportunity for a hearing on it.
Notice of inclusion shall be mailed, postage prepaid, by the clerk of the board of supervisors, to the address of the owner of the land as shown by the last equalized county assessment roll, and to any person that has filed with the clerk that person’s name and address and description of land in which he or she has either a legal or equitable interest. The notice shall describe the land proposed to be included, and shall state the time and place at which objections to the inclusion will be heard.
“Olive, stone, and pome fruit acreage” means any parcel, tract, or lot of land with 10 or more olive, stone, or pome fruit trees of any age growing on it with a commercial value of at least two hundred fifty dollars ($250), except a parcel, tract, or lot that is used as a nursery.
The district shall have perpetual succession and may do all of the following:
Sue and be sued in all actions and proceedings in all courts and tribunals of competent jurisdiction. Section 820.9 of the Government Code applies to this subdivision.
Adopt a seal and alter it at pleasure.
Take by grant, purchase, gift, devise, lease, or otherwise, and hold, use and enjoy, and lease, or otherwise dispose of, real and personal property of every kind and description within or without the district necessary to the full and convenient exercise of its powers.
Cause assessments to be levied, as provided in this chapter to pay any obligation of the district and to accomplish the purposes of the district in the manner provided in this part.
Make contracts, and employ, except as otherwise provided in this part, all persons, firms, and corporations necessary to carry out the purposes and the powers of the district, and at any salary, wage, or other compensation as the board of directors shall determine.
Eradicate, remove, or prevent the spread of any and all olive, stone, or pome fruit pests.
Enter into or upon any land included within the boundaries of the district for the purpose of inspecting and treating the olive, stone, or pome fruit trees and other host plants and fruit growing on them.
Perform any and all acts either within or outside the district necessary or proper to fully and completely carry out the purposes for which the district was organized.
In order to expedite the elimination of the source of the olive fruit fly and the apple maggot, a district may, with the consent of the owner, remove trees that have not been determined to be infested with the olive fruit fly or the apple maggot.
The board in which the district is located shall, after consultation with the commissioner, supervise and direct, in accordance with the best known and accepted methods as determined by the board, all activities undertaken by the district for the control or eradication of olive, stone, or pome fruit pests. The board may authorize the use of nonchemical alternatives.
The board, annually after the organization of the district, shall assess any assessor’s parcel of real property with 10 or more olive, stone, or pome fruit trees on it and enter as a separate item, on an annual assessment roll for each assessor’s parcel of real property included in the district, the number of all olive, stone, or pome fruit trees that are growing on it.
For the purpose of this part, the board shall assess all olive, stone, or pome fruit acreage at a uniform value per tree. The assessment shall be upon a tree basis and the number of trees shall be determined conclusively by the board counting the trees on each assessor’s parcel. The board, in counting the olive, stone, or pome fruit trees, shall not, however, count any more than 100 trees on any one acre of land.
Upon completing the tree count within the district each year, the board shall separately compute and certify, to the board of supervisors, the total number of all the olive, stone, or pome fruit trees in the district on each parcel.
Whenever new acreage within the district is planted with olive, stone, or pome fruit trees so as to qualify as olive, stone, or pome fruit acreage, the trees are subject to assessment as provided in this part.
Whenever any olive, stone, or pome fruit trees have been removed from any parcel of land included in the district, the owner of the parcel of land may file with the board an affidavit particularly describing the parcel of land, and setting forth the fact of the removal of the trees. Upon receipt of the affidavit, the board shall cause an investigation of the parcel of land to be made and, if the board finds the statements in the affidavit are true, the board shall immediately verify this fact and the amount of olive, stone, or pome fruit trees removed shall not be assessed on the next assessment roll.
The board shall, on or before the first Monday in July of each year, file with the board of supervisors a list of assessor parcel numbers that sets forth all assessments of the district for the fiscal year commencing on the first day of July. At the same time, a copy of the list shall also be filed with the auditor of the county.
The board of supervisors shall annually, at the time of levying county taxes, levy a special assessment upon all the olive, stone, or pome fruit trees planted or growing in the district regardless of age, as submitted by the district pursuant to subdivision (a). The special assessment shall be added to the secured roll and collected by the county on behalf of the district in the same manner that the county collects county taxes.
PART 6. PEST CONTROL COMPACT [8801. - 8808.]
The Pest Control Compact is hereby enacted into law and entered into with all other jurisdictions legally joining therein in the form substantially as follows:PEST CONTROL COMPACTArticle I. Findings
The party states find that:
In the absence of the higher degree of cooperation among them possible under this compact, the annual loss of approximately seven billion dollars from the depredations of pests is virtually certain to continue, if not to increase.
Because of varying climatic, geographic and economic factors, each state may be affected differently by particular species of pests; but all states share the inability to protect themselves fully against those pests which present serious dangers to them.
The migratory character of pest infestations makes it necessary for states both adjacent to and distant from one another, to complement each other’s activities when faced with conditions of infestation and reinfestation.
While every state is seriously affected by a substantial number of pests, and every state is susceptible of infestation by many species of pests not now causing damage to its crop and plant life and products, the fact that relatively few species of pests present equal danger to or are of interest to all states makes the establishment and operation of a fund, from which individual states may obtain financial support for pest control programs of benefit to them in other states and to which they may contribute in accordance with their relative interests, the most equitable means of financing cooperative pest eradication and control programs.
Article II. Definitions
As used in this compact, unless the context clearly requires a different construction:
“Fund” means the Pest Control Fund established pursuant to this compact.
“Governing board” means the administrators of this compact representing all of the party states when such administrators are acting as a body in pursuance of authority vested in them by this compact.
“Executive committee” means the committee established pursuant to Article V(e) of this compact.
Article III. The Fund
There is hereby established the Pest Control Fund for the purpose of financing other than normal pest control operations which states may be called upon to engage in pursuant to this compact. The fund shall contain moneys appropriated to it by the party states and any donations and grants accepted by it. All appropriations, except as conditioned by the rights and obligations of party states expressly set forth in this compact, shall be unconditional and may not be restricted by the appropriating state to use in the control of any specified pest or pests. Donations and grants may be conditional or unconditional, provided that the fund shall not accept any donation or grant whose terms are inconsistent with any provision of this compact.
Article IV. The Fund, Internal Operations and Management
The governing board shall adopt bylaws for the conduct of the business of the fund and shall have the power to amend and rescind these bylaws. The fund shall publish its bylaws in convenient form and shall file a copy thereof and a copy of any amendment thereto with the appropriate agency or officer in each of the party states.
The fund annually shall make to the Governor and Legislature of each party state a report covering its activities for the preceding year. The fund may make such additional reports as it may deem desirable.
In addition to the powers and duties specifically authorized and imposed, the fund may do such other things as are necessary and incidental to the conduct of its affairs pursuant to this compact.
Article V. Compact Fund Administration
Consistent with law and within available appropriations, the departments, agencies, and officers of this state may cooperate with the fund established by the Pest Control Compact.
Pursuant to Article IV(h) of the compact, copies of bylaws and amendments thereto shall be filed with the Office of Administrative Procedure.
The compact adminstrator for this state is the director.
Within the meaning of Article VI(b) or VIII(a), a request or application for assistance from the fund may be made by the Governor whenever in his judgment the conditions qualifying this state for such assistance exist and it would be in the interest of this state to make such request.
The notice of any meeting at which an application for assistance from the fund is to be considered given pursuant to Article VI (d), shall also be given to the Speaker of the Assembly and the President pro Tempore of the Senate.
The department, agency, or officer expending or becoming liable for an expenditure on account of a control or eradication program undertaken or intensified pursuant to the compact shall have credited to his account in the State Treasury the amount or amounts of any payments made to this state to defray the cost of such program, or any part thereof, or as reimbursement thereof.
As used in the compact, with reference to this state, the term “executive head” means the Governor.
DIVISION 5. ANIMAL AND POULTRY QUARANTINE AND PEST CONTROL [9101. - 11305.]
PART 1. DISEASED ANIMALS AND POULTRY [9101. - 9702.]
CHAPTER 1. General Provisions [9101. - 9189.]
ARTICLE 1. Reports [9101. - 9101.]
The department shall periodically publish and make available a list of reportable conditions that pose or may pose significant threats to public health, animal health, the environment, or the food supply. This document shall be known as the “List of Reportable Conditions for Animals and Animal Products.”
Any licensed veterinarian, any person operating a diagnostic laboratory, or any person who has been informed, recognizes or should recognize, by virtue of education, experience, or occupation, that any animal or animal product is or may be affected by, has been exposed to, or may be transmitting or carrying any condition specified in the “List of Reportable Conditions for Animals and Animal Products,” shall report to the department all known information required by the department within the time specified in the “List of Reportable Conditions for Animals and Animal Products.”
For the purposes of this section, “animal” includes any animal, poultry, fowl, bird, or fish.
While the procedure for selecting the conditions required to be reported and the method of preparation and publication of the “List of Reportable Conditions for Animals and Animal Products” shall be established by regulation, the selection of the specific conditions identified in the “List of Reportable Conditions for Animals and Animal Products” and the timeframe for reporting those conditions are exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of Government Code.
Until the department publishes the “List of Reportable Conditions for Animals and Animal Products,” the diseases listed in Section 796 of Title 3 of the California Code of Regulations shall constitute the conditions required to be reported pursuant to this section.
ARTICLE 2. Serum [9121. - 9121.]
Any person that is engaged in stockraising may purchase for injection in his stock any serum used for the cure or prevention of animal diseases.
ARTICLE 3. Disposal of Carcasses [9143. - 9143.]
An animal which has died from any contagious disease shall not be used for the food of any human being, domestic animal, or fowl.
ARTICLE 3.5. Laboratory Services [9151. - 9157.]
For purposes of this article, the following definitions apply:
“Emergency or regulatory condition” includes all diseases or conditions listed as emergency or regulatory conditions in the department’s List of Reportable Conditions for Animals and Animal Products published pursuant to Section 9101.
“Laboratory services” means any of the following:
Providing a residue analysis of animal tissue.
Providing nutrient analysis of animal tissue.
Providing the identification of insects, parasites, bacteria, viruses, prions, or any pathogenic organisms in animal tissue.
Providing any other services compatible with, or incidental to, those laboratory services provided pursuant to Section 9152.
The department shall do all of the following:
Require certification of laboratories providing services in the examination, diagnosis, analysis, testing, quantifying, or identification of any emergency or regulatory condition of poultry or livestock owned or located within the state.
Prescribe procedures and requirements for certification.
Develop and implement regulations necessary to carry out this article.
A laboratory approved, certified, or accredited by the state or the federal government to provide services equivalent to those described in subdivision (a) of Section 9152 is exempt from this article.
A person shall not establish, operate, or maintain a laboratory that provides services in the examination, diagnosis, analysis, testing, quantifying, or identification of any emergency or regulatory condition of poultry and livestock unless the person obtains a certificate from the department pursuant to this article authorizing the person to establish, operate, and maintain a laboratory that provides these services, except as specified in Section 9152.5.
A person who desires a certificate pursuant to this section shall file an application with the department for a certificate accompanied by the application fee required pursuant to Section 9154.
The application shall be on a form prescribed and furnished by the department.
The department shall issue a certificate to an applicant if the department is satisfied that the applicant is documented and verified to have full accreditation and to be in good standing with the American Association of Veterinary Laboratory Diagnosticians or International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC) 17025 current general requirements for the competence of testing and calibration laboratories.
A certificate shall expire one year after the date of issuance. A certificate shall be renewed upon payment of the renewal application fee required pursuant to Section 9154 if the applicant is in compliance with this article and the regulations adopted pursuant to this article.
A certified laboratory shall use an official nationally approved or validated diagnostic test for diseases of regulatory importance. A certified laboratory may request permission from the department to use a nonapproved or nonvalidated test.
A certified laboratory shall report positive and suspect positive test results only to the party who provided the original sample and shall also report the test results as required by Section 9101 or any other law.
Before issuing a certificate pursuant to Section 9153, the department shall require an applicant for a certificate to pay an application fee.
Before January 1, 2023, the application and renewal fees shall be one thousand dollars ($1,000).
On and after January 1, 2023, the department may adjust the application and renewal fees to cover the department’s reasonable costs to implement laboratory certification requirements.
The fees collected pursuant to this section shall be deposited into the Department of Food and Agriculture Fund.
The department may refuse to approve or renew a certificate or may suspend or revoke a certificate if the applicant or certificate holder is not in compliance with this article or regulations adopted pursuant to this article. The department shall notify an applicant or certificate holder of the reasons for the action and shall approve or reinstate the certificate when the laboratory is in compliance.
The department shall review an action taken pursuant to subdivision (a) upon request of any person adversely affected by the action, and the decision is subject to appeal in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code.
Test results certified by the department are prima facie evidence of the facts stated in the results for purposes of an action pursuant to subdivision (b) of Section 9157. This section does not apply to a criminal action.
For the purpose of paragraph (1), an act shall be deemed to be each day a person establishes, operates, or maintains a laboratory without a certificate from the department in accordance with subdivision (a) of Section 9153, or every test conducted that violates subdivision (f) or (g) of Section 9153.
Notwithstanding Section 9166, any person who violates any regulation adopted pursuant to this article shall be liable for a civil penalty of no more than twenty-five thousand dollars ($25,000) per day, for any acts constituting a violation of any regulation adopted pursuant to this article, so long as the regulation specifies that a violation is subject to enforcement in accordance with this section.
Unless a civil penalty has been imposed pursuant to paragraph (2), the department may administratively impose a civil penalty for a violation described in subdivision (a) or (b).
Unless the department has administratively imposed a civil penalty pursuant to paragraph (1), the Attorney General, upon request of the State Veterinarian, shall petition the Superior Court to impose, assess, and recover a civil penalty for a violation described in subdivision (a) or (b).
The department shall review an action taken pursuant to paragraph (1) of subdivision (c) upon request of any person adversely affected by the action, and the decision is subject to appeal in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code.
The proceeds of any civil penalty collected pursuant to this section shall be deposited into the Department of Food and Agriculture Fund.
If the Attorney General prevails in or settles an action under this section, the Attorney General shall receive an amount for reasonable expenses that the court finds to have been reasonably incurred, plus reasonable costs and attorney’s fees. All expenses, costs, and fees shall be awarded against the defendant and under no circumstances shall they be the responsibility of the state.
Notwithstanding Section 9165, a violation of this article is not a crime.
ARTICLE 4. Violations and Penalties [9161. - 9169.]
It is unlawful for any person to bring, cause to be brought, or aid in bringing into the state any domestic animal which such person knows is infected with any contagious disease.
Any person that owns or has possession or control of any animal which is affected by any contagious or infectious disease, that fails to keep the animal within an inclosure, or herd the animal in a place where it is secure from contact with other animals of like kind that are not so affected, or that permits the infected animal to be driven on any public highway, is guilty of a misdemeanor, which is punishable by a fine of not more than one thousand dollars ($1,000) for each offense.
In order to prevent the spread of any livestock disease, it is unlawful for any person, that does not have a written permit issued by the director, to remove, or cause to be removed, any livestock from slaughterhouse pens, yards, corrals, or similar holding places where livestock is held for the purpose of immediate slaughter, except directly into the slaughterhouse that controls such pens, yards, corrals, or similar holding places.
Except for Sections 10492 and 10494, any person that violates any provision of this division is guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or by imprisonment of not less than 10 days nor more than six months, or by both such fine and imprisonment.
In addition to any other penalty or fine prescribed by law, any person who violates any provision of this division, or any regulation which is issued pursuant to this division, is subject to an administrative penalty of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000) for each violation. Each violation during any day constitutes a separate offense. Any money that is recovered under this section shall be paid into the State Treasury and shall be credited to the Department of Food and Agriculture Fund.
If the secretary finds that a violation has occurred, the person charged shall receive notice of the nature of the violation, and shall be given an opportunity to be heard in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, except that informal hearing procedures may not be used under the circumstances described in subdivision (a) or (b) of Section 11445.20 of the Government Code.
The Attorney General shall, upon complaint by the director, or may, upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring an action for civil penalties in the name of the people of this state in any court of competent jurisdiction in this state against any person violating any provision of this division.
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring an action in the name of the people of this state in the superior court for an injunction against any person violating any provision of this division or any regulation which is adopted by the director pursuant to it.
Any proceedings pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
It is unlawful for any person to defeat or interfere with or to attempt to defeat or interfere with any animal disease test authorized by any provision of this division.
ARTICLE 5. Investigations [9175. - 9175.]
The secretary may make any necessary investigations relative to reported violations of this division pursuant to Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code.
ARTICLE 6. Collections [9185. - 9189.]
Any fees that are provided for by any provision of this division and regulations promulgated pursuant to it shall be due and payable upon receipt of a statement from the department itemizing the kind and amount of those fees. The fees shall be paid to the secretary within 30 days of the receipt of the statement.
A penalty assessment of 5 percent per month of the amount of any unpaid fees, not to exceed 25 percent, shall be collected by the secretary when fees are not paid in accordance with Section 9185.
The secretary shall have a lien upon any livestock and real property owned by the person owing any fees due under any provision of this division that are not paid pursuant to Section 9185.
All money which is collected pursuant to this division shall be paid into the State Treasury and shall be credited to the Department of Food and Agriculture Fund and may be expended in carrying out the provisions of this division.
CHAPTER 1.5. Commercial Blood Banks for Animals and Biologics [9201. - 9272.]
ARTICLE 1. Definitions [9201. - 9201.]
Unless the context otherwise requires, the following definitions govern the construction of this chapter:
“Adverse event” means an event in which an animal is injured, sickened, rendered unconscious, or killed.
“Animal” includes, but is not limited to, any domesticated fowl or nonhuman mammal or any wild fowl, bird, or mammal that is reduced to captivity.
“Biologics” means all viruses, serums, antibody products, toxins (excluding substances that are selectively toxic to microorganisms, such as antibiotics), or analogous products at any stage of production, shipment, distribution, or sale, which are intended for use in the treatment of animals and that act primarily through the direct stimulation, supplementation, enhancement, or modulation of the immune system or immune response.
“Blood and blood component products” means whole blood collected directly from a donor animal for transfusion or the blood components for transfusion, including packed red blood cells, platelet-rich plasma, platelet concentrates, fresh plasma, fresh frozen plasma, frozen plasma, cryoprecipitate, and cryosupernatant. Antibody products like hyperimmune serums are considered “biologics” and are excluded from this definition of blood and blood component products.
“Captive closed colony” has the same meaning as in Section 4920 of the Business and Professions Code and means that an animal is kept, housed, or maintained in any way for the purpose of collecting its blood.
“Closed-colony blood bank” has the same meaning as in Section 4920 of the Business and Professions Code and means a commercial blood bank for animals that produces animal blood or blood component products solely from animals held in a captive closed colony.
“Commercial blood bank for animals” has the same meaning as in Section 4920 of the Business and Professions Code and means an establishment that produces animal blood or blood component products from captive closed-colony or community-sourced animals to market and sell for use in the cure, mitigation, treatment, or prevention of injury or disease in animals.
“Community blood bank” has the same meaning as in Section 4920 of the Business and Professions Code and means a commercial blood bank for animals that produces animal blood or blood component products solely from community-sourced animals whose owners voluntarily consent to the donation.
“Community sourced” has the same meaning as in Section 4920 of the Business and Professions Code and means that an animal is all of the following:
Kept, housed, and maintained at the residence of its owner who is a person and not a partnership, association, corporation, or limited liability company.
Brought by its owner to a community blood bank to have its blood collected.
Licensed in accordance with any pet licensing required by the pet owner’s state, county, or city of residence.
“Production” has the same meaning as in Section 4920 of the Business and Professions Code and means collection of blood or the preparation, testing, processing, storage, or distribution of blood or blood component products for the purpose of transfusion.
ARTICLE 2. Animal Blood and Blood Component Products Production and Biologics Production [9210. - 9212.5.]
A person shall not engage in the production of animal blood and blood component products for retail sale and distribution except in a captive closed-colony commercial blood bank for animals licensed by the secretary or in accordance with Article 7 (commencing with Section 4920) of Chapter 11 of Division 2 of the Business and Professions Code.
Notwithstanding subdivision (a), a community blood bank for animals operating pursuant to Article 7 (commencing with Section 4920) of Chapter 11 of Division 2 of the Business and Professions Code shall register blood and blood component products with the secretary in accordance with Article 5 (commencing with Section 9241).
No person shall engage in the production of biologics except as permitted under federal law.
The secretary shall license establishments as captive closed-colony commercial blood banks for animals that meet all of the following:
Operate under conditions, and use methods of production, that are consistent with current standards of care and practice for the field of veterinary transfusion medicine to ensure that the animal blood and blood component products will not be contaminated, dangerous, or harmful.
Produce animal blood and blood component products under the direct supervision of a person qualified in the field.
Maintain onsite records containing information documenting how the animal was acquired and any history of blood draws or use of anesthesia on the animal.
Keep, house, or maintain all animal donors within California state boundaries.
The department shall discontinue its licensing program for commercial blood banks for animals that produce canine blood and blood component products sourced from captive closed-colony dogs within 18 months of making a finding and provision of notice as follows:
Based on the quarterly reports required under Section 4920.6 of the Business and Professions Code, subdivision (c) of Section 9252, and subdivision (b) of Section 9253, every three months, the secretary shall calculate the total estimated amount of canine blood sold in California that quarter by community blood banks and, separately, the total estimated amount of canine blood that closed-colony blood banks sold in the state during the same period. This information shall be publicly posted on the department’s internet website along with annual totals compiled each year.
If the secretary finds that community blood banks sold an annual amount of canine blood in California that equals or exceeds the annual amount closed-colony blood banks sold in four consecutive quarters, then the secretary shall provide notice on the department’s internet website that discontinues its licensing program for closed-colony blood banks for dogs within 18 months from the date of that notice.
The calculation of canine blood pursuant to this subdivision shall be done separately, with whole blood, packed red blood cells, and fresh frozen plasma being measured as separate amounts in estimated milliliters based on weight in grams.
For purposes of this section, “canine blood” means whole blood, packed red blood cells, and fresh frozen plasma.
Upon enactment of this section, the secretary shall not accept any new applications to license a commercial blood bank for animals that produces canine blood or blood component products sourced from captive closed-colony dogs.
Closed-colony blood banks may transition to community-sourced models and continue to operate in accordance with Article 7 (commencing with Section 4920) of Chapter 11 of Division 2 of the Business and Professions Code.
ARTICLE 3. Licenses [9221. - 9222.]
An application for a license for any establishment that produces, or proposes to produce, animal blood and blood component products from a closed-colony blood bank shall be made on forms issued by the secretary. The application shall contain all of the following:
The name and address of the person who owns the property, establishment, or institution in which it is proposed to produce animal blood and blood component products.
The name and address of the person who shall oversee the production of animal blood and blood component products.
The type of animal blood and blood component products that shall be produced.
A full description of the building, including its address, facilities, equipment, and apparatus, to be used in the production of animal blood and blood component products.
A written protocol, consistent with current standards of care and practice for the field of veterinary transfusion medicine, that addresses all of the following:
Maximum length of time for donation by animal donors, or minimum health parameters for animal donors.
Frequency and amount of blood collected from animal blood donors in estimated milliliters based on weight in grams.
Socialization and exercise programs for animal blood donors.
Method of identification of each animal, including microchip or tattoo.
Ongoing veterinary care, including an annual physical exam and vaccination schedule for animals held in blood donor facilities.
Husbandry standards for feeding, watering, sanitation, housing, handling, and care in transit, with minimums based on the standards set forth pursuant to the federal Animal Welfare Act (7 U.S.C. Sec. 2131 et seq.) in Part 3 (commencing with Section 3.1) of Subchapter A of Chapter 1 of Title 9 of the Code of Federal Regulations.
Implementation of a permissive adoption program.
Bloodborne pathogen testing for all canine and feline blood donors in accordance with the best clinical practices in the veterinary field, which may include the most recent Consensus Statement on blood donor infectious disease screening by the American College of Veterinary Internal Medicine.
An oversight letter identifying the oversight veterinarian who will be responsible for oversight of the facility. The letter shall be from the oversight veterinarian, and shall be maintained on file by the secretary. Oversight veterinarians shall be licensed to practice veterinary medicine in California. In the event of a change of the oversight veterinarian, it is the oversight veterinarian’s responsibility to give notice to the secretary of the termination of the oversight veterinarian within 30 days of the termination date of the oversight veterinarian. An oversight letter from the incoming oversight veterinarian shall be submitted to the secretary within 30 days of the termination date of the prior oversight veterinarian.
Additional information that the secretary finds is necessary for the proper administration and enforcement of this chapter.
A commercial blood bank for animals shall not discriminate against veterinarians licensed in California in the sale of animal blood or blood component products.
A commercial blood bank for animals, as described in subdivision (a), that refuses to sell animal blood or blood component products to a veterinarian in circumstances in which that blood bank has an available supply may be deemed by the secretary to be in violation of this provision against discriminatory business practices.
ARTICLE 4. License Fees [9231. - 9231.]
The license application fee and license renewal fee under this chapter for an establishment proposing to produce or producing animal blood and blood component products from a closed-colony blood bank shall be as follows:
The application and annual license fee shall be one thousand dollars ($1,000) for each establishment, which shall be the fee for the fiscal year, or portion thereof, ending June 30 of each year. When an applicant is a city, county, state, or district, or an official thereof, no fee shall be required under this section.
Licenses shall be renewed every year. The annual renewal fee shall be paid on or before the first day of July of each year.
The license application fee and licensee renewal fee under this chapter shall be adjusted annually for inflation. The adjustments shall be rounded off to the nearest whole dollar.
The department may set inspection fees in an amount that shall not exceed the department’s reasonable regulatory costs incurred in connection with implementing this chapter. The fees shall include amounts sufficient to repay any amount loaned from the General Fund to establish the program.
ARTICLE 5. Blood or Blood Component Product Registration [9241. - 9245.]
No person shall offer for sale or use any of the following:
Any biologic unless it is manufactured pursuant to the terms of a valid license or permit issued by the United States Department of Agriculture.
Any blood or blood component product unless it is produced in an establishment licensed by the secretary or in accordance with Article 7 (commencing with Section 4920) of Chapter 11 of Division 2 of the Business and Professions Code, or imported into the state pursuant to Section 9252 and registered with the department in accordance with Section 9244.
The secretary shall register blood or a blood component product that meets all of the following requirements:
It is produced under acceptable procedures.
It has been demonstrated to the secretary that the blood or blood component product is safe and noninjurious to animal health.
It has been demonstrated to the secretary that the blood or blood component product is of value for the purpose intended.
It is labeled for proper handling and use, and is not misrepresented.
It is produced in an establishment that meets the requirements of Section 9210.
An application for registration of blood or a blood component product shall include all of the following:
The name and address of the person who owns the property, establishment, institution, or business that sells the blood.
The name and address of the person who oversees the production of animal blood and blood component products.
The type of animal blood and blood component products produced for sale.
A full description of the building, including its address, facilities, equipment, and apparatus, to be used in production of animal blood and blood component products.
A protocol of the methods of production in detail that is followed in the production of the product.
A sample of the label to be placed on the blood or blood component product.
The registration application fee and annual renewal fee for an establishment proposing to offer blood or blood component products for retail sale or use in California shall be as follows:
The registration application fee and annual renewal fee shall be five hundred dollars ($500) for each product, which shall be the fee for the fiscal year, or portion thereof, ending June 30 of each year.
Registration shall be renewed every year. The annual renewal fee shall be paid on or before July 1 of each year.
The application and renewal fees under this chapter shall be adjusted annually for inflation. The adjustments shall be rounded off to the nearest whole dollar.
Fees may be increased or decreased by the department but shall not exceed the department’s reasonable regulatory costs incurred to administer and enforce product safety standards set forth in this chapter.
The secretary may impose such conditions on the production or use of blood or blood component products as he or she deems necessary to accomplish the purposes of this chapter.
ARTICLE 6. Rules and Regulations [9251. - 9255.]
The secretary may adopt reasonably necessary rules and regulations for the administration and enforcement of this chapter.
The secretary shall track, administer, and enforce the safe importation and sale of animal blood and blood component products from out-of-state blood banks for animals that produce those blood and blood component products in compliance with California standards.
Importation and sale of canine blood and blood component products from out-of-state sources shall only be permitted from community blood banks.
Out-of-state community blood banks that sell canine blood and blood component products in California under this section shall submit a quarterly report to the department every three months that includes the separate total amounts of canine whole blood, packed red blood cells, and fresh frozen plasma sold in the state during that quarter, in estimated milliliters based on weight in grams.
A closed-colony blood bank licensed under this chapter shall maintain an onsite record of the number of donations collected from captive animals, the amount of blood collected per donation in estimated milliliters based on weight in grams, any adverse events, the disposition of any animals, and any other information necessary to comply with this section.
A closed-colony blood bank licensed under this chapter shall submit a quarterly report to the department every three months including all of the following:
The number of donations from captive animals and separate total amount in milliliters of whole blood, packed red blood cells, and fresh frozen plasma sold in California during that quarter, by species of animal in estimated milliliters based on weight in grams.
The number of captive animals kept, housed, or maintained at the closed-colony blood bank, by species of animal.
The disposition records of any animals and the total number of animals released for adoption.
The number and species of animals experiencing adverse events, the total number of adverse events, and the nature of adverse events experienced by captive animals that donate blood.
The number and species of animal donors whose blood tested positive for known pathogens, in accordance with the best clinical practices in the veterinary field, which may include the most recent Consensus Statement for blood donor infectious disease screening by the American College of Veterinary Internal Medicine.
A violation of this section, Section 9210, or Section 9212 shall constitute a cause for corrective action, suspension, restriction, or the nonrenewal or revocation of a license by the department. The proceedings for the suspension or revocation of a license shall be conducted pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The secretary shall have all the powers granted in that chapter.
For purposes of this section, “disposition” means adoption, euthanasia, transfer to another blood bank, breeding facility, farm, animal control agency, animal shelter, or rescue organization, or donation or sale for medical research or other purpose. Disposition records shall include all of the following:
The department shall annually submit a copy of the canine blood collection information that it publicly posts on its internet website pursuant to subparagraph (A) of paragraph (1) of subdivision (a) of Section 9212.5 to the Chair and Vice Chair of the Assembly Business and Professions Committee, the Chair and Vice Chair of the Senate Business, Professions and Economic Development Committee, the Chairs and Vice Chairs of the Assembly and Senate Agriculture Committees, and the Veterinary Medical Board.
The department, in collaboration with the Veterinary Medical Board, technical experts in animal blood banking, and any other relevant stakeholders, shall develop and make available a “Community Animal Blood Banking Guidance Resource” or other documents that provide veterinarians, at a minimum, accurate, clear, and concise information regarding best management practices for operating community blood banks.
On or before March 1, 2023, the department shall publish the guidance resource or other documents described in subdivision (a) on its internet website. The guidance resource or other documents shall include primary information and best practices in all of the following areas:
Animal donor qualification, selection, and screening.
Bloodborne pathogen testing.
Safe blood products handling, processing, labeling, and storage.
ARTICLE 7. Enforcement [9261. - 9269.]
License for any commercial blood bank for animals or registration of any blood or blood component product may be denied, suspended, or revoked by the secretary for failure to meet the requirements of this chapter or for the violation of any provision of this chapter, or of any rule or regulation adopted by the secretary under this chapter. The proceedings shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
The biologics prepared prior to July 1, 1975, in laboratories licensed pursuant to Chapter 4 (commencing with Section 1600) of Division 2 of the Health and Safety Code, which have an expiration date of July 1, 1975, or later, are not subject to the provisions of this chapter.
If the secretary finds that blood or blood component products do not conform to the requirements of Section 9242 or the use or continued use of such products constitutes an immediate danger to animals, the secretary may, after notice, suspend the registration of those blood or blood component products or license of an establishment producing those blood or blood component products pending a hearing and final decision.
If the secretary finds blood or blood component products that do not meet the requirements of Section 9242, the secretary may order those blood or blood component products to be held on the premises where found or elsewhere until he or she has determined that the products may be safely released for the purposes intended.
The secretary may order the destruction of any blood or blood component products under a hold order if the blood or blood component products cannot be made to meet the requirements of Section 9242.
The department, or humane officers under contract with the department, shall inspect commercial blood banks for animals licensed by the department at least once a year to ensure compliance with the protocols required by subdivision (e) of Section 9221.
Shall not apply to those facilities required to be inspected by the United States Department of Agriculture in accordance with the Animal Welfare Act (Chapter 54 (commencing with Section 2131) of Title 7 of the United States Code).
Shall apply to those facilities housing blood donor animals under contract with commercial blood banks for animals licensed by the department.
Except as provided in subdivision (b), the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall apply to all records held by the department relating to this chapter, including, but not limited to, records relating to applications, fees, or inspections required by this chapter.
Except as provided in subdivisions (c) and (d), identifying personal information that is contained in records described in subdivision (a) shall be confidential and not subject to disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
This subdivision does not prevent the disclosure by the department of data regarding age, race, ethnicity, national origin, or gender of individuals whose personal information is protected pursuant to this section, so long as the data does not contain individually identifiable information.
Records held by the department relating to this chapter shall be accessible to law enforcement officers and state and local agencies with jurisdiction over any matter covered by this chapter.
The department shall, upon request, disclose information in records relating to this chapter that is already in the public domain.
For purposes of this section, “identifying personal information” means the following information pertaining to the owner of an animal donor that is collected for purposes of coordinating, conducting, or documenting a donation from the animal owned by that person and is maintained by the department in relation to this chapter:
Social security number.
Date of birth.
Physical description.
Home address.
Statements of personal worth or personal financial data.
Personal medical history.
Employment history.
Email address.
Information that reveals any electronic network location or identity.
For purposes of this subdivision, a person who owns, operates, maintains, or oversees a commercial blood bank for animals shall not be considered the owner of an animal donor.
ARTICLE 8. Exemptions [9272. - 9272.]
This chapter shall not apply to any of the following:
Licensed facilities primarily engaged in the collection, preparation, testing, processing, storage, or distribution of human blood or blood products, and any biologic as defined in Section 9201 produced by that facility is sold or distributed only to an establishment licensed by this chapter.
Clinical laboratories licensed pursuant to Chapter 3 (commencing with Section 1200) of Division 2 of the Business and Professions Code whose only biologics are autogenous bacterins prepared at the request of licensed veterinarians.
Licensed private veterinarians who collect blood or blood products solely for use in their own practice or pursuant to Article 7 (commencing with Section 4920) of Chapter 11 of Division 2 of the Business and Professions Code, except with respect to Article 5 (commencing with Section 9241) and Section 9255.
CHAPTER 2. Scabies and Ticks [9301. - 9352.]
ARTICLE 1. Treatment [9301. - 9307.]
When moved for the purpose of immediate slaughter, cattle which are infected with, or exposed to, the Boophilus annulatus tick shall be dipped or treated in the manner which is prescribed by the department, unless they are to be loaded directly on railroad cars at the point of origin.
If upon examination of any cattle or sheep, the director finds any cattle which are infected with the Boophilus annulatus tick, or sheep or cattle which are infected with, or exposed to, scabies, he shall forthwith notify, in writing, the owner or person that is in control of the cattle or sheep to dip or otherwise treat them as directed for the purpose of eradicating the tick or scabies. The owner or person that is in control of the cattle or sheep shall comply with the notice within 10 days.
If, at the expiration of 10 days from the date on which notice was given, the owner or person in control of the cattle or sheep has failed to dip the cattle or sheep in accordance with the directions of the director, the director shall immediately take possession of the cattle or sheep and dip the sheep as many times as may be necessary, or dip or otherwise treat the cattle.
If upon examination at the end of the 10 days the director finds that the cattle have been dipped or otherwise treated for the extermination of ticks but are still infected, he shall instruct the owner or person in possession of the cattle to continue the dipping or treatment as the circumstances may demand, and within such time as the department deems advisable.
If upon examination at any time the department finds that the cattle are again infected with the ticks or that the owner or person in control of the cattle has not continued to properly dip or otherwise treat the cattle as instructed, the director shall take possession of the cattle and dip or otherwise treat them.
If the director has reason to believe that the disease known as scabies exists in a flock of sheep or in a herd of cattle, he shall notify the owner or person that is in control of the sheep or cattle to gather all the sheep or cattle in a corral in order that the sheep or cattle may be examined to ascertain if any are so infected.
If the owner or person that is in control of the sheep or cattle does not gather all of the sheep or cattle in a corral for the examination, the director shall gather the sheep or cattle in a corral for the examination. He may hire such necessary help as may be required to gather the sheep or cattle.
ARTICLE 2. Civil Liability [9331. - 9333.]
All expenses and costs of dipping or treating cattle or sheep and all expenses and costs of gathering sheep or cattle which are incurred by the department pursuant to this chapter are a lien on the cattle or sheep until the lien is paid or foreclosed by law.
If the lien is not paid within 15 days after the expenses and costs were incurred, the department shall, in the name of the people of the State of California, commence an action to foreclose the lien. The action shall be commenced, tried, and determined in all respects as provided by law for the foreclosure of mortgages on personal property.
In any civil proceeding which arises under this chapter, all persons that have an interest in, or control or possession of, the cattle or sheep concerning which the proceeding is had, are liable severally and jointly.
ARTICLE 3. Violations [9351. - 9352.]
It is unlawful for any person to willfully sell, except for immediate slaughter, or expose in such a manner as may infect other livestock not so infected, any cattle which have or are infected with the Boophilus annulatus tick.
It is unlawful for any person to knowingly sell any sheep or cattle which are infected with scabies, or to expose them in such a manner as may infect other sheep or cattle which are not infected with scabies.
CHAPTER 3. Animal Quarantine [9501. - 9702.]
ARTICLE 1. Definitions [9501. - 9503.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Animal,” “livestock,” or “domestic animal,” includes poultry.
“Poultry” includes all domesticated fowl and any wild fowl or bird which is reduced to captivity.
ARTICLE 2. Inspections [9531. - 9532.]
If the director receives information of the existence of any contagious, infectious, or transmissible disease which affects domestic animals within this state, he shall thoroughly investigate it. In making such an investigation, he may enter any premises and inspect any animal.
This chapter does not deprive the regular inspectors who are employed by any chartered or incorporated city, or city and county, after they have passed a civil service meat, market, and poultry inspection examination, of the powers which are granted them by such city, or city and county, to inspect animals.
ARTICLE 3. Establishment of Quarantine [9561. - 9574.]
The State Veterinarian may establish such quarantine, sanitary, and police regulations as may be necessary to prevent, circumscribe, or exterminate, any condition designated pursuant to Section 9562.
Subject to the rights and procedures established pursuant to Chapter 4.5 (commencing with Section 11400) of Division 3 of Title 2 of the Government Code, and in accordance with regulations adopted pursuant to this code, the State Veterinarian shall impose a quarantine if he or she believes, upon any basis reasonably supportable by standard epidemiological practice or credible scientific research, that a population of domestic animals or food product from animals has contracted, or may carry, an illness, infection, pathogen, contagion, toxin, or condition that, without intervention, could transmit an illness that could kill or seriously damage other animals or humans, including, in addition to the original condition, those clinically plausible secondary illnesses, infections, pathogens, contagions, toxins, or conditions arising from the effects of the original.
Because the authority conferred by this section is designed to protect the health and safety of the citizens of this state, the authority shall be interpreted broadly to give full effect to the purpose of protecting the public health and safety and shall be construed to include the imposition of quarantines in the circumstances of natural disaster, whether occurring or imminent, or declared emergencies.
In furtherance of the objectives of the quarantine, the State Veterinarian may impose restrictions not only on the affected animals themselves and the uses to which those animals may be put, but on products produced from, by, or with those animals in order to minimize the risk or spread of food-borne illness.
The State Veterinarian’s quarantine powers set forth in this section expressly include the power to order movement, segregation, isolation, or destruction of animals or food products, as well as the power to hold animals or food products in place.
It is unlawful for any person to move or allow to be moved any of the animals, food product from animals, vehicles, farm equipment, farm products, or other materials that are subject to restrictions established pursuant to Section 9562 or 9569 unless that person has first obtained authorization from the State Veterinarian.
If it is necessary to restrict the movements of animals pursuant to Section 9562, the State Veterinarian may fix and proclaim the boundaries of a quarantine area in lieu of separate, individual orders issued to each owner pursuant to Section 9562. While the boundaries are in force, it is unlawful for any person to move or allow to be moved any such animals from or within the boundaries of the quarantine area, unless that person is authorized to do so by the State Veterinarian.
In addition to actions that may be directed by the State Veterinarian pursuant to Section 9562, the State Veterinarian may:
Regulate, restrict, or restrain the movements of persons, vehicles, farm equipment, farm and dairy products, and other property from or into the quarantine area, or from place to place within it, during the existence of the quarantine.
Impose, as a condition to travel through or within the quarantine area, that no person or vehicle which is permitted to travel on any road or highway shall depart from the road or highway while within the quarantine area.
Order all animals within the quarantine area to be detained for purposes of examination or inspection at any place which is specified by him or her in the order.
Cause to be destroyed all animals or property which may be found within the area that are affected with the disease, infestation, or condition or which have been so exposed as to be dangerous to themselves or other animals.
Require a proper disposal to be made of the hide and carcass of any animal which is destroyed.
Adopt and enforce all necessary regulations for cleaning and disinfecting any premises or property where the disease, infestation, or condition exists or has existed by treatment, disposal, or otherwise, and such other regulations as he may deem necessary to eradicate the disease and to prevent its dissemination.
If the State Veterinarian invokes Section 9562, and the importation of animals, animal products, or other property from any state, territory, or foreign country may transmit, carry or disseminate the illness, infection, pathogen, contagion, toxin, or condition designated pursuant to Section 9562, the State Veterinarian shall prescribe the conditions, if any, under which these animals, animal products, or property may be imported into this state.
Any person who negligently or intentionally violates any state or federal law or regulation, including any quarantine regulation, by moving any animal or other article, which by virtue of being pest infested or disease infected, causes an infestation or infection of a pest, animal, or disease, or causes an existing infestation to spread beyond any quarantine boundaries is liable civilly in a sum not to exceed twenty-five thousand dollars ($25,000) for each act that constitutes a violation of the law or regulation.
The Attorney General, upon request of the State Veterinarian, shall petition the superior court to impose, assess, and recover the sum imposed pursuant to subdivision (a). In determining the amount to be imposed, the court shall take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation and the nature and persistence of the violation.
The remedy under this section is in addition to, and does not supersede or limit, any and all other remedies, civil or criminal, that are otherwise available to the state.
Any funds recovered pursuant to this section shall be deposited in the Department of Food and Agriculture Fund for emergency pest or disease exclusion, detection, eradication, and research of agricultural plant or animal pests or diseases. These funds may be allocated to cover costs related to the enforcement of this division. These funds are in addition to any funds appropriated for those purposes pursuant to Section 224.
ARTICLE 4. Compensable Destruction of Diseased Animals [9591. - 9595.]
The state may contribute toward the payment for the animal or property destroyed if either of the following occurs:
The United States agrees to share equally in the payment.
The State Veterinarian finds that the failure to dispose of the animal, animal product, or property would be or would have been detrimental to human or animal health or the welfare of that animal industry.
The value of the animal or property prior to its destruction for which contribution is made pursuant to subdivision (a) of Section 9592 shall be determined by an appraisal process agreed upon by the secretary of the Department of Food and Agriculture and the Secretary of the United States Department of Agriculture.
The value of the animal or property prior to its destruction for which contribution is made pursuant to Section 9592 shall be expeditiously determined by the secretary in consultation with the affected industry.
Nothing in this provision shall be construed to require appraisal or payment before destruction is carried out.
The department may pay from any money which is available for the support of the department all sums that are due or to become due from the state to owners of animals or property which is taken, destroyed, or otherwise disposed of pursuant to any provision of this code that relates to the control, prevention, or eradication of disease in animals.
Indemnity payments provided by this division shall not be paid for any animal or property which is taken, destroyed, or otherwise disposed of pursuant to any provision of this code that relates to the control, prevention, or eradication of disease, if the owner is in violation of any quarantine order issued pursuant to this division or any regulation adopted pursuant thereto.
ARTICLE 5. Noncompensable Destruction of Diseased Animals [9621. - 9621.]
Except as otherwise provided in Section 9571, every horse, mule, or other animal which is affected with dourine, as shown by a complement-fixation test, is a public nuisance, and shall be immediately destroyed under the direction and supervision of the department. No indemnity shall be paid for such animal.
ARTICLE 6. Importation [9641.5. - 9641.7.]
Any horse or other Equidae brought into this state shall be accompanied by the following:
A certificate of health from the state of origin issued by an accredited veterinarian. The certificate shall state that the horse or other Equidae is free from evidence of any communicable disease.
Verification that any horse or Equidae has been tested within the preceding 12 months and found negative to a test for equine infectious anemia. The test shall be approved by the secretary and conducted by a laboratory approved by the United States Department of Agriculture, and the necessary sample shall be taken, and the verification signed by, an accredited veterinarian.
A nursing foal of less than six months of age when accompanied by a negative dam and any horse or other Equidae consigned for immediate slaughter shall be exempt from the testing requirements of this section.
The director may issue a permit, valid on January 1 and renewable on or before January 1 of each year thereafter, that exempts any working horse from the requirements of Section 9641.5 under all of the following conditions:
The applicant owns or operates a business or businesses located in both this state and in another state in which horses are used in the operation of the business or businesses.
The horse is moved across the state border from one business location to the other.
The director may require the applicant to furnish any information that the director determines to be necessary as part of the application process.
“Working horse” means a horse used for livestock husbandry or for other ranch-related activities.
Any positive test for equine infectious anemia performed in a California laboratory shall be reported by telephone within 24 hours to the department by the laboratory making the test.
ARTICLE 7. Interagency Cooperation [9671. - 9674.]
The director shall meet periodically with the livestock sanitary officials or committees of other states, the duly authorized agricultural representatives of other states and of the United States, or any of them, for the purpose of coordinating livestock sanitary activities within this state and among the several states which have common or similar problems in the field of livestock disease and the prevention, quarantine, eradication, or control of livestock disease.
A county may appropriate and expend money from the general fund of the county to carry on investigation, inspection, control, and eradication of disease in domestic animals. For such purposes it may enter into agreements with the department or with any other county and the department.
An agreement which is entered into pursuant to Section 9672 may do all of the following:
Provide that payments from the county treasuries may be made to the department and disbursed only for investigation, inspection, control and eradication of disease in domestic animals within any county which is a party to the agreement.
Provide that the department shall have full control and supervision in carrying on the work which is provided for.
Be continued for a definite term or until rescinded or terminated.
Provide for the method by which it may be rescinded or terminated by any of the parties to the agreement.
An agreement which is entered into pursuant to Section 9672 shall provide for the disposition, division, or distribution of any property which is acquired as the result of the joint exercise of powers, and the return of any surplus moneys, in proportion to the contributions which were made, after the agreement has been completed.
ARTICLE 8. Violations [9691. - 9702.]
It is unlawful for any person to remove or cause to be removed any animal from any district, area, or premises which is quarantined pursuant to this chapter, except upon the conditions which are prescribed in this chapter.
It is unlawful for any person to bring or cause to be brought any animal into a quarantined district, area, or premises, without written permission from the State Veterinarian or an authorized representative.
It is unlawful for any person to move or cause to be moved any animal from place to place within any quarantined district, area, or premises, without written permission from the State Veterinarian or an authorized representative.
It is unlawful for any person to resist the destruction of any animal or property ordered destroyed by the State Veterinarian pursuant to Section 9562.
It is unlawful for any person to hide, secrete, or fail to disclose any animal or property that is suffering from, or that has been exposed or potentially exposed to any disease subject to a current quarantine order or to fail to disclose the whereabouts of that animal or property.
It is unlawful for any person to violate any quarantine order which regulates, restricts, or restrains the movement of persons, vehicles, farm equipment, farm and dairy products into, from, or from place to place within a quarantined district, area, or premises.
It is unlawful for any person to violate the conditions of any permit which authorizes the permittee to travel upon any road or highway within a quarantined district, area, or premises.
It is unlawful for any person to violate any other provision of this chapter or any regulation or order which is made pursuant to it.
Any violation of any provision of this chapter is an infraction punishable by a fine of not more than one hundred dollars ($100) for the first offense and is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000) or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment, for a second or subsequent offense committed within three years of a prior conviction under this chapter.
It is unlawful for the operator of any vehicle to fail to stop the vehicle upon demand of a clearly identified animal health quarantine officer when the officer orders the operator to stop for the purpose of determining whether any quarantine which is established pursuant to this chapter is being violated and the officer has reasonable cause to believe that the vehicle is being used in connection with a quarantine violation.
PART 2. DISEASED BOVINES [9801. - 10610.]
CHAPTER 1. Exceptions [9801. - 9801.]
This part does not apply to animals which are used in research projects of the University of California.
CHAPTER 2. Bovine Tuberculosis [9901. - 10152.]
ARTICLE 1. Definitions [9901. - 9914.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Accredited herd” means a herd of cattle for which the owner holds a valid certificate of accreditation issued to him by the United States Department of Agriculture and the department.
“Approved veterinarian” means a veterinarian who has been granted permission by the department to buy, possess, or use tuberculin.
“Bovine animals” means cattle.
“State TB status” means an area so declared by the United States Department of Agriculture.
“Premises” means any place where cattle have been or are kept.
“Purebred animal” means an animal which is identified in the herd book of a breed record association that is recognized by the United States Department of Agriculture.
“Reactor” or “reacting bovine animal” means any bovine animal that reacts positively to a tuberculosis test or that is determined to be tuberculosis upon examination.
“Tuberculosis test” means the use of an official test for diagnosing tuberculosis in cattle.
“Tuberculosis control area” means an area which is established and delimited as such by proclamation of the department.
“Tuberculosis-exposed cattle” means cattle that have been in contact with, or exposed to, any reactor or tuberculosis infected premises, or any tuberculosis infected material.
ARTICLE 2. General Provisions [9931. - 9933.]
To carry out the provisions of this chapter, the inspectors or agents of the department or the United States Department of Agriculture, may at any time or place, enter upon any premises, except dwelling houses. No person shall obstruct, hamper, or interfere with the agents or inspectors while they are enforcing the provisions of this chapter.
The State Veterinarian may make regulations as are reasonably necessary to carry into effect the provisions of this chapter to prevent bovine tuberculosis from entering and spreading within this state.
The department may enter into any cooperative agreement with the United States Department of Agriculture to undertake tuberculosis control pursuant to this chapter.
ARTICLE 3. Sale and Use of Tuberculosis Tests [9941. - 9944.]
The State Veterinarian may designate approved veterinarians to buy, possess, or use tuberculosis tests and may suspend or revoke that designation.
The State Veterinarian may designate a duly authorized representative of the department or of the United States Department of Agriculture to possess or use tuberculosis tests and may suspend or revoke that designation.
Any sale or disposition of tuberculosis tests within the state shall be reported to the department within five days after the sale or disposition.
It is a misdemeanor punishable by imprisonment in the county jail for not less than 90 days, without alternative of a fine in any case, for any person who is not an approved veterinarian to buy, possess, or use tuberculosis tests.
It is a misdemeanor punishable by imprisonment in a county jail for not less than 90 days, without alternative of a fine in any case, for any person who is not a duly authorized representative of the department or of the United States Department of Agriculture to possess or use tuberculosis tests.
It is unlawful for any person to sell or otherwise dispose of any tuberculosis test in the state that has not been produced under license of the Agricultural Research Service of the United States Department of Agriculture.
ARTICLE 4. Tuberculosis Tests [9971. - 9982.]
Any approved veterinarian or duly authorized representative of the department or of the United States Department of Agriculture may ear tag or otherwise identify any bovine animal to establish the identity of the animal, while applying a tuberculosis test to it.
The result of every tuberculosis test shall be reported to the State Veterinarian by the veterinarian who conducted the test within 48 hours after the completion of the test.
Every reactor, immediately upon the determination of such reaction, shall be identified, pursuant to regulations of the department and the United States Department of Agriculture, by its owner or the owner’s agent under the supervision of the approved veterinarian who conducts the tuberculosis test.
If the State Veterinarian has reason to suspect an irregularity in the application of a tuberculosis test or the identification of reactors, the State Veterinarian may enter any premises for the purpose of examining any bovine animals in or on the premises to determine if there has been any abuse or misuse of tuberculosis, or any faulty, unskillful, or irregular technique or procedure in the application of the tuberculosis test, identification of reactors, or identification of animals tested for tuberculosis.
It is unlawful for any person to do any of the following:
Obstruct, attack, or interfere with, or permit to be obstructed, attacked, or interfered with, the State Veterinarian or an approved veterinarian who is conducting a tuberculosis test.
Neglect or fail to properly secure and restrain any bovine animal to be tuberculosis tested, or under tuberculosis test, for examination, injection, observation, or other procedures that pertain to a tuberculosis test.
It is a misdemeanor which is punishable by imprisonment in the county jail for not less than 90 days, without the alternative of a fine in any case, for any person to defeat or interfere with or to attempt to defeat or interfere with a tuberculosis test.
It is a misdemeanor which is punishable by imprisonment in the county jail for not less than 90 days, without the alternative of a fine in any case, for any person to obstruct, defeat, or interfere with or to attempt to obstruct, defeat, or interfere with a tuberculosis test by transporting from a premises or by hiding away or sequestering any bovine animal from or by bringing substitute bovine animals onto, such premises after receipt of a notification by the owner or person in charge of such animals on the premises from the department or from an approved veterinarian who is conducting tuberculosis tests, stating that the animals or herd on such premises will be tuberculosis tested on or before a certain date or will be under tuberculosis test for a stated period and that the animals or herd shall be held on the stated premises for a specified period.
Permission in writing may be obtained from the department or the approved veterinarian who is conducting the tuberculosis tests to allow any necessary movement of the animals required to be held pursuant to Section 9977. Upon the completion of the tuberculosis test that is referred to in the notification, the department or the approved veterinarian shall issue a written release from the holding requirements of the notice.
It is unlawful for any person to apply a tuberculosis test to any bovine animal that has at any time been found by an approved veterinarian to be a reactor.
It is unlawful for any person to knowingly apply tuberculosis tests that are not approved tests.
It is unlawful for any person to have any tuberculosis infected or exposed bovine animal at any livestock fair or show.
It is unlawful for any person to knowingly sell, after notification of its condition from the department, any bovine animal that has tuberculosis as shown by a positive reaction to the tuberculosis test, physical examination, or any other method which is recognized by the department, unless the person has first obtained a permit in writing from the department.
ARTICLE 5. Tuberculosis Control Areas [10001. - 10007.]
The department may establish and maintain tuberculosis control areas within this state.
When the department establishes a tuberculosis control area, the affected industry shall be notified.
The State Veterinarian may authorize the testing of any cattle in a tuberculosis control area to determine which animals are affected with tuberculosis.
All owners of cattle within a tuberculosis control area that are subject to examination and tuberculosis testing shall, upon request of the department, provide necessary facilities for conducting tuberculosis tests, and render such assistance as may be required.
Cattle moving into a tuberculosis control area must meet the requirements specified by the State Veterinarian.
ARTICLE 7. Slaughter of Reacting Bovine Animals [10061. - 10071.]
The State Veterinarian may impose a quarantine pursuant to Section 9562 when any bovine animal reacts positively to a tuberculosis test conducted by an approved veterinarian or a duly authorized representative of the department or of the United States Department of Agriculture, or determined to be tuberculous upon physical examination.
Within 30 days after the appraisal of the reacting bovine animal, it shall be slaughtered under the supervision of the State Veterinarian.
Animals shall be tested or slaughtered pursuant to this article even if indemnity funds are unavailable.
The slaughtering of any reacting bovine animal, pursuant to this article, shall be under the supervision of the department, or of the United States Department of Agriculture.
The carcasses of the slaughtered animals shall be disposed of pursuant to the regulations of the department or the rules and regulations of the United States Department of Agriculture that govern meat inspection.
If an animal is slaughtered pursuant to this article, and indemnity funds are available, the owner may receive part or all of the following:
The proceeds of the sale of the salvage of the animal.
From the United States Department of Agriculture, any sum that is authorized to be paid to the owner from any appropriation that is made by the United States Department of Agriculture to assist in the eradication of tuberculosis in cattle in this state.
Indemnity provided by this article shall not be paid to any person in any of the following cases:
For any bovine animal that is brought into a tuberculosis control area that reacts to a tuberculosis test that is applied within 90 days after arrival of the animal in the area, as provided for in this chapter.
For any bovine animal that is brought into a tuberculosis control area in violation of any law, any regulation of the department, or any rule or regulation of the United States Department of Agriculture.
For any reacting bovine animal, until the premises, where the animal had been kept, have been cleaned and disinfected by the owner in a manner that is approved by an agent of the department or of the United States Department of Agriculture.
For any reacting bovine animal that is not slaughtered within 30 days after the animal is appraised.
For any animal that is owned by a federal, state, or local government entity.
If the person has violated any provision of this chapter that relates to a tuberculosis control area or any regulation that is made by the department that relates to such an area.
A subsequent payment of indemnity shall not be made to any person in any of the following cases:
Unless the provisions of this chapter have been fully complied with for each and every bovine animal added to his herd.
Unless and until the premises are maintained in a sanitary condition which is satisfactory to the department or the United States Department of Agriculture.
The pedigree of any purebred bovine animal shall be proved by a certificate of registry from the herd books where the animal is registered. The registration papers of any purebred bovine animal which is slaughtered because of tuberculosis and for which indemnity is paid shall be marked “canceled” by the department.
Each claim against the state for payment for the slaughter of any reacting bovine shall be presented to the State Controller and paid out of appropriations or funds available for that purpose in accordance with law. Every claim shall be paid within 60 days after the date of presentation if the claimant is entitled to payment.
ARTICLE 9. Tuberculosis-Exposed Cattle [10100. - 10103.]
The State Veterinarian may impose a quarantine pursuant to Section 9562 when it has been determined that any bovine animal has been exposed to tuberculosis.
The State Veterinarian may impose tuberculosis testing requirements for tuberculosis-exposed cattle.
Indemnity for reacting tuberculosis-exposed cattle may be available and shall be in accordance with the provision stated in Article 7 (commencing with Section 10061) of this chapter.
The State Veterinarian may issue a special permit for the movement of tuberculosis-exposed cattle to any of the following:
An establishment that is operating under state, state approved, or federal meat inspection, or a public stockyards designated by the department to handle reactors and tuberculosis-exposed cattle for slaughter.
Premises where tuberculosis-exposed cattle are kept.
Premises where no spread of tuberculosis to other cattle could occur.
ARTICLE 11. Confinement of Cattle Subject to Examination [10151. - 10152.]
If the owner or any person that is in charge of cattle, after 10 days’ written notice, refuses properly to confine in corrals or stanchions any cattle that are subject to examination, tuberculosis testing, identification, or slaughter, the department shall be entitled to reimbursement from the owner for necessary costs incurred to properly examine, tuberculosis test, identify, or slaughter the cattle.
Any expense which is incurred by the department pursuant to Section 10151 is a lien upon the cattle. Unless the amount of the lien is paid within 10 days after written notice of the amount of the lien is given by the department to the owner or person that is in possession of the cattle, the lien shall be enforced pursuant to Section 3052 of the Civil Code.
CHAPTER 3. Bovine Brucellosis [10301. - 10496.]
ARTICLE 1. Definitions [10301. - 10311.]
Unless the context otherwise requires, the definitions in this article govern the construction of this division.
“Accredited veterinarian” means a veterinarian who is so designated by the United States Department of Agriculture and the department.
“Bovine animals” means neat cattle.
“Brucellosis” means the disease of cattle which is caused by Brucella microorganisms.
“Brucellosis control area,” means any area that has been so established by the department in order to qualify and maintain such area in accordance with certification standards of the bovine brucellosis eradication uniform methods and rules adopted by the United States Department of Agriculture.
“Cattle” means neat cattle.
“Official veterinarian” means a veterinarian who is in the employ of the United States Department of Agriculture or the department.
“Premises” means any place where cattle have been or are kept.
“Reactor” or “reacting bovine animal” means any bovine animal that reacts positively to a test for brucellosis which is approved by the director.
“Vaccinate” or “vaccination” means the use of vaccine in cattle.
“Vaccine” means any vaccine which is produced by a laboratory which is licensed by the Agricultural Research Service of the United States Department of Agriculture and recognized by the department for use in preventing or treating brucellosis in cattle.
ARTICLE 2. General Provisions [10321. - 10327.]
The department may enter into any cooperative arrangement with the United States Department of Agriculture to undertake brucellosis control pursuant to this chapter.
To carry out the provisions of this chapter, any duly authorized representative of the department or of the United States Department of Agriculture, may enter upon any premises except dwelling houses. No person shall interfere with the representative while he is enforcing the provisions of this chapter.
The department may use the services of official veterinarians or contract with accredited veterinarians to carry out the provisions of this chapter.
The director may make such regulations as are reasonably necessary to carry this chapter into effect. He may require such reports and records as are necessary.
Every accredited veterinarian who is conducting work pursuant to this chapter shall submit reports to the department on forms that are furnished for that purpose.
In addition to any other authority in this part that is available to the director for the purpose of preventing the spread of any disease of livestock, the director may adopt regulations to prevent the spread within this state of bovine brucellosis through limitations on movement of bovine animals or through such tests or vaccinations or other means as he may find and determine to be necessary. If he finds and determines that similar regulations are necessary interstate, he shall notify the Governor in order that the procedure which is set forth in Section 9570 may be followed.
To accomplish the purpose of this chapter and to prevent outbreaks of brucellosis, the director shall by regulation establish conditions for the movement of female dairy cattle, such as evidence of calfhood vaccination or other appropriate recognized tests.
ARTICLE 3. Vaccines [10341. - 10342.]
Any vaccine which is used pursuant to this chapter shall be procured by the department from a laboratory which is licensed by the Agricultural Research Service of the United States Department of Agriculture. The vaccine, after purchase directly from the laboratory, shall be distributed by the department.
It is unlawful for any person, except a federal, state, county, or municipal officer or employee, in his official capacity, or an accredited veterinarian, to buy, possess or use a vaccine or antigen which contains brucella micro-organisms, except pursuant to the regulations of the director.
ARTICLE 4. Vaccinations [10351. - 10359.]
All female dairy calves shall be vaccinated by an official veterinarian or an accredited veterinarian, who is authorized by the department, at such ages as are designated by the department. Male dairy calves and beef calves may, at the option of the owner, be vaccinated.
Each calf which is vaccinated pursuant to this chapter shall have an official tattoo placed in the right ear by the veterinarian who performs the service that shows the period within which the animal was vaccinated, or such other evidence of vaccination or identification as the department may by regulation specify.
The owner of any calf which is to be vaccinated pursuant to this chapter shall, upon request of the department, provide the necessary facilities and assistance for such vaccination.
If the owner or any person that is in charge of any dairy calf, after 10 days’ written notice by the department, refuses properly to confine in a corral or stanchions, any calf which is required to be vaccinated and identified pursuant to this chapter, the department may in such case incur such expense as is necessary to properly vaccinate and identify the calf.
Any expense which is incurred by the department pursuant to Section 10354 is a lien upon the calf which is vaccinated and identified. Unless the amount of the lien is paid within 10 days after written notice of the amount of the lien is given by the department to the owner or person that is in possession of the calf, the lien shall be enforced pursuant to Section 3052 of the Civil Code.
The vaccination of any bovine animal pursuant to the provisions of this chapter shall be by either an official veterinarian or an accredited veterinarian, who is authorized by the department. The director may charge a reasonable fee to cover the cost of any vaccination performed by an official veterinarian other than the cost of the vaccine.
It is unlawful for any person to refuse to submit a dairy calf which is required to be vaccinated and identified pursuant to this chapter to such vaccination.
It is unlawful for any person to remove any official mark which is required by this chapter, or to imitate or simulate such official mark.
It is unlawful for any person, except a federal, state, county, or municipal officer or employee, in his official capacity, or an accredited veterinarian, to buy, possess, or use any device which is designed to produce a mark, stamp, or tattoo that simulates in design the official tattoo, tag, or mark that is adopted by the department and the United States Department of Agriculture for identifying cattle which are officially vaccinated against brucellosis.
ARTICLE 5. Brucellosis Control Areas [10381. - 10387.]
The department may, after hearing, establish and maintain brucellosis control areas within this state.
The department shall examine and test such cattle for brucellosis in any brucellosis control area as the director may specify, as often as may be deemed necessary to qualify and maintain such area within the standards of certification which are adopted by the United States Department of Agriculture.
All owners of cattle which are subject to examination and testing for brucellosis within a brucellosis control area shall, upon request of the department, provide the necessary facilities for collecting such samples of blood or milk as may be deemed necessary to conduct tests for brucellosis, and shall render such assistance as may be required.
If any owner or person that is in charge of cattle, after 10 days’ written notice by the department, refuses properly to confine in corrals, stanchions, or chutes, any cattle within a brucellosis control area which are required to be tested and identified pursuant to this chapter, the owner is guilty of a misdemeanor and the department may in such case incur such expense as is necessary to properly confine and identify the cattle.
Any expense which is incurred by the department pursuant to Section 10384 is a lien upon the cattle which are tested and identified. Unless the amount of the lien is paid within 10 days after written notice of the amount of the lien has been given by the department to the owner or person that is in possession of the cattle, the lien shall be enforced pursuant to Section 3052 of the Civil Code.
The director shall, by regulation, designate the conditions under which cattle may be moved into a brucellosis control area.
It is unlawful for any person to refuse to submit any cattle which are required to be tested pursuant to this chapter, for the collection of milk or blood samples, or to refuse to submit any milk samples which are necessary for the testing of cattle for brucellosis pursuant to this chapter.
ARTICLE 6. Slaughter of Reacting Bovine Animals [10401. - 10407.]
Any bovine animal in a brucellosis control area that reacts positively to a test for brucellosis shall immediately be identified pursuant to the regulations of the secretary. The animal shall be slaughtered within 30 days in accordance with the regulations of the secretary.
The value of an animal which is slaughtered shall be determined by appraisement by a representative of the department or a representative of the Agricultural Research Service of the United States Department of Agriculture, and by the owner or his agent. If such persons do not agree on the valuation of the animal, the animal shall be appraised by the chief appraiser of the department or his representative. In either event, the value which is determined is final.
Within 30 days after the appraisal of the animal, it shall be slaughtered under the supervision of the director.
Where it is necessary to prevent the spread within this state of bovine brucellosis, the director may provide for the slaughter of animals.
If an animal is slaughtered pursuant to this article, and indemnity funds are available, the owner of the animal may receive part or all of the following:
The proceeds of the sale of the salvage of the animal.
From the United States Department of Agriculture, any sum that is authorized to be paid to the owner from any appropriation that is made by the United States Department of Agriculture to assist in the eradication of brucellosis in cattle in this state.
Indemnity shall not be paid to any person in any of the following cases:
For any steer or grade bull that is determined to be a reactor.
For any bovine animal that is brought into a brucellosis control area, that reacts to a brucellosis test which is applied within 90 days after the arrival of the animal in the area as provided for in this chapter.
For any bovine animal that is brought into a brucellosis control area, in violation of any law, any regulation of the department, or any rule or regulation of the United States Department of Agriculture.
For any reacting bovine animal, until the premises, where the animal had been kept, have been cleaned and disinfected by the owner in a manner approved by an agent of the department or of the United States Department of Agriculture.
For any reacting bovine animal that is not slaughtered within 30 days after the animal was appraised.
For any animal that is owned by the United States, this state, or any county or city in the state.
For any bovine animal that was vaccinated for brucellosis after reaching 12 months of age. However, indemnity shall be provided for any bovine animal that was vaccinated after reaching 12 months of age and that was part of an official whole herd adult vaccination plan approved by the secretary. “Official whole herd adult vaccination plan” means a plan, approved by the secretary, whereby all female cattle exceeding 12 months of age are vaccinated against brucellosis using an approved vaccine as defined in Section 10311 and are identified as required by the department.
For any bovine animal in a herd that has been under an order to hold, issued pursuant to Section 9565, for more than 18 consecutive months, except as provided by subdivision (i).
For any officially adult vaccinated bovine animal in a herd that has been under an order to hold, issued pursuant to Section 9565, for more than 22 consecutive months.
If the person has violated any provision of this chapter that relates to a brucellosis control area, or any regulation that is adopted by the department that relates to such an area.
The owner of a herd that is subject to subdivision (h) or (i) of Section 10406 may appeal to the director in writing, on a form as prescribed by the director, for continuation of indemnity payments.
Upon a determination that the herd owner was in full compliance with the laws and regulations, the director, notwithstanding Section 10406, may grant a continuation of indemnity payments to the herd owner for a period of time deemed appropriate by the director.
A subsequent payment of indemnity shall not be made to any person in any of the following cases:
Unless the provisions of this chapter have been fully complied with for each and every bovine animal that is added to his herd.
Unless and until the premises are maintained in a sanitary condition, which is satisfactory to the department or the United States Department of Agriculture.
ARTICLE 7. Slaughter of Exposed Nonreacting Animals [10421. - 10423.]
Notwithstanding any other provision of this chapter, the secretary may proceed with the identification of nonreacting animals in a herd in the same manner as provided in Section 10401 and require the slaughter of those animals and the disinfection of the premises where the animals have been kept if all of the following requirements are satisfied:
The secretary determines that bovine brucellosis cannot be eradicated or effectively controlled in the particular herd by the usual recognized methods.
The secretary determines that slaughter of the remaining exposed nonreacting animals in the herd is the best and most practical method of attaining eradication or control.
The secretary has entered into a voluntary agreement with the owner of the nonreacting animals to carry out the purposes and conditions of this chapter.
Funds are available to indemnify the owner of the nonreacting animals.
The value of a nonreacting animal that is slaughtered shall be determined by appraisement by a representative of the department or a representative of the Agricultural Research Service of the United States Department of Agriculture, and by the owner or his or her agent. If these persons do not agree on the valuation of the animal, the animal shall be appraised by the chief appraiser of the department, or his or her representative. In either event, the value that is determined is final.
If a nonreacting animal is slaughtered pursuant to this article, and indemnity funds are available, the owner of the animal may receive part or all of the following:
The proceeds of the sale of the salvage of the animal.
From the United States Department of Agriculture, any sum that is authorized to be paid to the owner from any appropriation that is made by the United States Department of Agriculture to assist in the eradication of brucellosis in cattle in this state.
Indemnity provided by this article shall not be paid in any of the following cases:
For any bovine animal which reacts to the brucellosis test or shows active brucellosis prior to or at slaughter. In this case, the indemnity rate which is provided in Section 10405 shall apply.
For any bovine animal, unless all exposed cattle, swine, goats, sheep, and horses on the premises are slaughtered.
For any bovine animal, until the premises where the animal has been kept have been cleaned and disinfected by the owner in a manner which is approved by an agent of the department or of the United States Department of Agriculture.
For any steer or grade bull.
For any animal which is owned by the United States, this state, or any county or city in the state.
If the owner is in violation of any provision of this chapter or any regulation which is made by the department that relates to bovine brucellosis.
For any animal which is not slaughtered within 30 days after such animal is appraised.
For any bovine animal which originated in another state or country that has not been in this state for at least 90 days.
ARTICLE 8. Brucellosis Eradication Compensation Costs [10492. - 10496.]
If an owner of cattle refuses to slaughter exposed, nonreacting bovine animals pursuant to the provisions of Article 7 (commencing with Section 10421) when requested by the director to do so, the cattle owner shall then be responsible for paying to the director the full costs of the department in eradicating brucellosis from his herd. Such responsibility shall begin with the refusal to slaughter exposed, nonreacting animals and shall continue until brucellosis is eradicated from the herd.
The following procedures shall be followed when brucellosis has been identified in a herd of cattle:
An official veterinarian shall conduct an epidemiological investigation of the infected herd and premises involved in order to determine the specific methods and actions necessary to eradicate the disease from the herd.
Upon request of the owner of the infected herd, the investigation provided for in subdivision (a) shall be conducted with the assistance and participation of a licensed veterinarian selected by such owner.
An official epidemiological report shall be prepared which shall specify the methods and actions necessary to eradicate the disease, and shall include reasonable guidelines for timing the accomplishment of the various tasks associated with such activity.
Any person who is aggrieved at any determination made pursuant to this section may appeal in writing to the director within five days after notice of such determination. The director may affirm, reverse or modify such determination after his review of the epidemiological report and the issues involved.
The epidemiological report required by subdivision (c) shall become the basis for a memorandum of understanding which shall be developed between the owner of the infected herd and the department covering the following points:
Herd management practices that will be employed to facilitate the disease eradication effort.
Any physical facilities modification that will be required in the eradication effort.
Specific dates for accomplishing the various tasks required in the eradication effort.
This memorandum of understanding may be developed with the participation of a licensed veterinarian if such veterinarian participated in the epidemiological investigation pursuant to subdivision (b).
If an owner of brucellosis infected or exposed cattle refuses to participate in the development and signing of the memorandum of understanding required by subdivision (e) of Section 10493, or fails or refuses to comply with the provisions of such memorandum, the cattle owner shall immediately become responsible for paying to the director all further costs incurred by the department in eradicating the disease from the herd of cattle owned by such person.
If an owner of a brucellosis infected herd violates any law or regulation pertaining to brucellosis eradication, the cattle owner shall immediately become responsible for paying to the director all further costs incurred by the department in eradicating the disease from the herd of cattle owned by such person.
An owner who fails to achieve eradication of brucellosis in his or her herd is responsible for the costs of maintaining the required testing schedule after 24 months from the date of an order to hold issued by the director pursuant to Section 9565. Evidence of eradication shall consist of a release from a hold issued by the director pursuant to Section 9567.
If the director requires an infected herd to be officially adult vaccinated to control the spread of the disease, the time interval provided in subdivision (a) shall be extended from 24 to 28 months.
Notwithstanding subdivisions (a) and (b), the owner of a herd which, on the effective date of this section, is under an order to hold, issued by the director prior to that effective date, shall be subject to this section 24 months from that effective date or 28 months from that effective date for officially adult vaccinated herds.
This section shall not apply to the owner of a herd that has been granted a continuation of indemnity payments as provided by Section 10406.5.
CHAPTER 4. Cattle Disease Control [10610. - 10610.]
The Secretary of the Department of Food and Agriculture may adopt regulations to control or eradicate cattle diseases, including bovine trichomoniasis, in any of the following ways:
Requiring permits before entry of, and limitations on the importation of, cattle and other animals or materials that might act as a cause or a vector of a disease or condition that is infectious or contagious to cattle.
Limitations on the intrastate or interstate movement of cattle, in compliance with any applicable federal law.
Diagnostic tests, vaccinations, treatments, or other appropriate methods, including, but not limited to, the mandated reporting by designated parties of diseases or suspected diseases.
Notification of owners of cattle that have been exposed, or may have been exposed, to infectious animals or materials.
Similar means that the secretary finds and determines are necessary.
The secretary shall appoint an advisory task force, including, but not limited to, livestock industry representatives and university researchers, for the purposes of advising the secretary on the control and management of cattle health diseases and evaluating the effectiveness of programs established pursuant to this chapter. The secretary shall consult with the advisory task force prior to the adoption of regulations or the imposition of fees by the secretary.
Members of the advisory task force, or alternate members when acting as members, may be reimbursed, upon request, for necessary expenses incurred by them in the performance of their duties.
The secretary may impose fees to offset the costs of any program established pursuant to this section, provided that the total fees collected do not exceed the actual costs of regulation or impair the department’s responsibilities pursuant to this chapter.
The secretary is authorized to establish accounts within the Food and Agriculture Fund as necessary to efficiently administer the department’s responsibilities pursuant to this chapter.
Nothing in this chapter shall be construed to limit or restrict the authority granted to the State Veterinarian in Section 9562.
PART 3. DISEASED SWINE [10701. - 10990.]
CHAPTER 1. Importation and Sale [10701. - 10791.]
ARTICLE 1. Definitions [10701. - 10704.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Health certificate” means a health certificate from either a veterinary inspector of the United States Department of Agriculture, the state veterinarian or livestock sanitation official of the state of origin, or of a licensed veterinarian approved by the state veterinarian or livestock sanitation official.
“Sales yard” includes any livestock yard, pen, corral, building, premises, or conveyance in which swine are assembled for sale, resale, exchange, or transfer by any owner or his agent. It does not, however, include any ranch premises where swine are assembled for sale, resale, exchange, or transfer by any owner or his agent in ordinary ranch-to-ranch transactions, or where swine are fed and fitted for slaughtering purposes only.
“Premises” is the farm of origin where swine were born and raised or where they have resided for a minimum of 90 continuous days immediately preceding shipment.
ARTICLE 2. Importation [10721. - 10726.]
It is unlawful for any person to import any swine into this state except for immediate slaughter, unless the person procures a health certificate and import permit from the department prior to the shipment or movement of the swine.
It is unlawful for any person to import any swine into this state for immediate slaughter unless the person procures an import permit from the department prior to the shipment or movement of the swine.
Any person requesting an import permit shall identify the premises of the swine prior to the shipment of the swine into the state.
The health certificate shall certify that the swine to which it refers satisfy all of the following requirements:
Have not been exposesd to any communicable disease.
Are free from evidence of any communicable disease.
The director, when he determines it to be necessary for the enforcement of this chapter, may, by regulation, require the certificate to certify that the swine have been immunized against hog cholera by a method of immunization which is designated by regulations of the director as an effective method of immunization and by the United States Department of Agriculture.
The health certificate shall also show all of the following:
The date of immunization if immunization is required.
The predominating breed of the swine.
Approximate weight of the swine.
Color of the swine.
Markings of the swine.
The original of the health certificate shall be attached to the way bill or shall be in the possession of the truck driver. A duplicate copy shall be sent to the Chief of the Division of Animal Industry of the department, at Sacramento, in time to reach him prior to the arrival of the swine within the state. A duplicate copy shall also be sent to the state veterinarian or livestock sanitary offical of the state of origin.
Swine that are imported into this state for purposes other than for immediate slaughter shall be transported in crates, cars, trucks, or other vehicles that have been cleaned and disinfected in conformity with the standards that are prescribed by the Agricultural Research Service of the United States Department of Agriculture.
Swine that are imported into this state for immediate slaughter shall have as their destination a recognized slaughtering establishment. They shall not be diverted for any other purposes.
ARTICLE 3. Sales Yards [10751. - 10753.]
Any person that operates a sales yard shall keep records of all swine which pass through the sales yard, including the name and address of every person who offers swine for sale and the name and address of every purchaser of swine from the yard.
The sales yard records shall show definite information relative to description of animals, such as breed, weight, color, and marks. The records shall be kept on file for one year, during which time they shall be at the disposal of the director for inspection.
It is unlawful for any person to knowingly bring into, or cause to be brought into, any sales yard any swine that have been, within 21 days, treated with hog cholera virus, or which are affected with, or have been exposed to hog cholera, anthrax, swine erysipelas, vesicular exanthema, foot-and-mouth disease, or any other infectious disease.
ARTICLE 4. Swine Disease Control [10781. - 10786.]
The director may adopt regulations to control or eradicate hog cholera, swine brucellosis, pseudorabies, and other swine diseases in any of the following ways:
Through limitations on the movement of swine.
Through the use of hog cholera vaccine, or other biologics.
Through tests or vaccinations.
Any other similar means that he or she finds and determines is necessary.
The department, after notice and hearing, may revoke a license granted by the department to a person conducting business as a packer, stockyard, dealer, agent, or any individual that receives, transports or deals with the marketing of swine or swine products that violates this chapter or a regulation adopted pursuant to this chapter.
A previous violation of any provision of this chapter, or a regulation adopted pursuant to this chapter, is sufficient cause for the revocation of a license under Section 10782. Proof of a previous violation of this code, or a regulation adopted pursuant to this article, shall be considered an aggravating factor for a current offense.
Any proceeding for the denial or revocation of a license pursuant to Section 10782 shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The department shall have all of the powers that are granted in that Chapter 5.
Whenever a person violates any regulation that is adopted pursuant to this article, the department may impose an administrative penalty not to exceed one hundred dollars ($100) per individual animal for each violation.
If the department issues an administrative penalty pursuant to paragraph (1), the department shall issue a Notice of Violation to the alleged offender or the offender’s agent. The notice shall be written in plain English and shall inform the offender as to how the offender may challenge the administrative penalty.
A willful and knowing violation of any regulation that is adopted pursuant to this article is a crime, punishable as (A) an infraction by a fine of not more than one hundred dollars ($100) per individual animal for each violation, (B) a misdemeanor, or (C) a felony.
Notwithstanding any other provision of law, the imposition of an administrative penalty pursuant to subdivision (a) shall not preclude prosecution of a person pursuant to paragraph (1).
ARTICLE 5. Marking and Validations [10791. - 10791.]
The department shall adopt regulations to require a person who possesses a domestic swine that has two or more phenotypical characteristics specified in subparagraph (B) of paragraph (1) of subdivision (a) of Section 4650 of the Fish and Game Code to identify the swine with a brand, tattoo, or other permanent mark or visible validation approved by the department.
This section shall become operative on July 1, 2024.
CHAPTER 2. Garbage Control [10901. - 10990.]
ARTICLE 1. Definitions [10901. - 10901.]
As used in this chapter, “garbage” means any waste which consists in whole or in part of any animal waste that results from the handling, preparing, cooking, and consuming of food, including the offal from any animal carcass or from any part of an animal carcass. It does not, however, include such waste from ordinary household operations which is fed directly to swine on the premises.
ARTICLE 2. General Provisions [10921. - 10923.]
The director may make and enforce such regulations as are reasonable and necessary to carry out the provisions of this chapter.
The director may enter any premises where garbage is fed to swine and may examine and test any equipment or facilities for processing and handling garbage. He may in writing order any person that is subject to this chapter to cease the operation of any equipment or facility which he finds is unsuitable or improperly operated or maintained.
Every person that is subject to this chapter shall keep and maintain such records or memoranda and furnish such reports as the director by regulations may require. The records and memoranda shall be open to inspection by the director during usual business hours.
ARTICLE 3. Processing [10951. - 10952.]
In order to prevent the spread of vesicular exanthema and other contagious and infectious diseases of swine, it is unlawful for any person to feed swine any garbage unless the garbage has been processed in accordance with the provisions of this article and the regulations which are adopted by the director pursuant to it.
All garbage, regardless of previous processing, before being fed to swine, shall be thoroughly heated throughout to boiling or equivalent temperature (usually 212 degrees Fahrenheit at sea level) for 30 minutes, or otherwise treated in a manner which is prescribed in the regulations of the director.
ARTICLE 4. Licensing [10981. - 10990.]
It is unlawful for any person to feed garbage to swine unless he has a valid annual license issued by the director for each separate premises where garbage is fed to swine.
An application for a license to feed garbage to swine shall be in the form which is prescribed by the director, and shall state all of the following:
The name and address of the applicant.
The location of the premises for which the license is requested.
Such other information which the director may require.
Each application for a license shall be accompanied by a fee of twenty dollars ($20).
An application for renewal of a license, accompanied by the proper fee, shall be made on or before the last day of the calendar year for which the current license was issued.
To any fee which is not paid when due, there shall be added a penalty of twenty dollars ($20).
Each license issued pursuant to this chapter entitles the licensee to feed garbage to swine on the premises that are described in the license, during the period for which the license is issued, in accordance with the provisions of this chapter and the regulations issued under it and in compliance with any local or municipal ordinances which are applicable to the feeding of garbage to swine.
The director may refuse to issue a license or renewal of license, and may revoke or suspend any license, as the case may require, if he finds after hearing, that any of the following exist:
The premises which are described in the application or license are not operated in a clean and sanitary manner so as to prevent the continuation and spread of vesicular exanthema.
The premises which are described in the application or license are not adequately equipped or maintained in the manner required by this chapter and the regulations adopted pursuant to it.
The applicant or licensee has violated any lawful order of the director which is issued pursuant to this chapter.
The proceedings for all hearings pursuant to this chapter shall be conducted in accordance with Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2, of the Government Code. The director shall have all powers which are granted by such chapter.
Any institution or agency of the state, a county, or any municipal or other public corporation which is feeding garbage to swine is not required to procure a license, but shall comply with all other provisions of this chapter and the regulations which are adopted pursuant to this chapter.
This chapter does not prohibit any city or county from licensing persons that feed garbage to swine.
PART 4. ANIMALS DETRIMENTAL TO AGRICULTURE [11201. - 11305.]
CHAPTER 1. Importation and Transportation [11201. - 11201.]
CHAPTER 2. Predators [11221. - 11305.]
ARTICLE 1. Hunters and Trappers [11221. - 11223.]
The director may employ hunters and trappers throughout the state to control or eradicate coyotes and other harmful predatory animals and to shoot or trap bears which are damaging livestock, agricultural crops, or standing timber.
For the purposes of this article, the director may enter into contracts with the Bureau of Sports Fisheries and Wildlife of the United States Department of the Interior to enlist the support of the federal government. He may prescribe the manner, terms, and conditions of such cooperation.
No iron or steel-jawed trap shall be used by any hunter or trapper who is engaged in controlling or eradicating any bears pursuant to this article.
ARTICLE 3. Donations [11261. - 11262.]
The director may accept, on behalf of the state, donations of money from any person, board of supervisors, or other agency interested in the control of coyotes and other predatory animals. Any such money shall be paid into the State Treasury and credited to the Department of Agriculture Fund.
Money which is made available by any board of supervisors that is accepted pursuant to this article shall be expended solely within the boundaries of the county which makes the appropriation, unless otherwise authorized by the board of supervisors. All other donations shall be applied to the particular locality in which the donors are interested, unless they specifically consent to the use of their donations in other localities.
ARTICLE 4. Management of Coyotes on Public Lands [11281. - 11284.]
If any coyotes are found to exist on land which is owned by the state, other than lands subject to the control of the Department of Parks and Recreation and other than ecological reserves established pursuant to Article 4 (commencing with Section 1580) of Chapter 5 of Division 2 of the Fish and Game Code and the coyotes are found to be causing damage on public or private land, the director may control, may employ persons pursuant to Article 1 (commencing with Section 11221) to control, or may contract with the commissioner to control, the coyotes which are determined to be the cause of the damage.
Prior to implementation of any control program pursuant to this article, the director shall consult with and obtain the consent of the director of the department which has jurisdiction over the state land.
The director shall submit an annual memorandum of understanding to the Director of Fish and Game for review and approval prior to implementing any coyote control program pursuant to this article.
Nothing in this article authorizes the use of Compound 1080 for predator control on public lands.
ARTICLE 5. Management of Coyotes on State Park Lands and in Ecological Reserves [11301. - 11305.]
As used in this article, “state park lands” means any lands subject to the control of the Department of Parks and Recreation.
The director, upon receiving information causing him or her to believe that coyotes are finding refuge on state park lands or on ecological reserves and are causing damage to nearby private property, may request the Department of Parks and Recreation, in the case of state park lands, or the Department of Fish and Game, in the case of ecological reserves, to cooperate in the acquisition and evaluation of evidence to that effect. Upon a request by the director, the department or departments shall cooperate in the evaluation or acquisition.
Upon a determination pursuant to Section 11302 that coyotes are finding refuge on state park lands or on an ecological reserve and are causing damage to nearby private property, the director and the Department of Parks and Recreation, with the review and approval of the Director of Fish and Game as to state park lands, or the Department of Fish and Game as to ecological preserves, may enter into an interdepartmental agreement to control coyotes finding refuge on state park lands or on ecological reserves and causing damage to nearby private property. Methods utilized to take the coyotes shall be specific to those coyotes which are causing the damage. The Department of Parks and Recreation or the Department of Fish and Game shall specify the methods of take, location of take, time of take, necessary protections for public safety, protections convenient for state park lands or ecological reserve users and uses, and may specify whether the department is to employ persons to control coyotes pursuant to Article 1 (commencing with Section 11221) or whether control is to be done by the Department of Parks and Recreation or the Department of Fish and Game.
The Department of Parks and Recreation or the Department of Fish and Game may submit claims to the department for reimbursement of direct costs incurred pursuant to the implementation of this article which shall be paid if found by the director to be reasonably necessary to implement this article.
Nothing in this article authorizes the use of Compound 1080 for predator control on state park lands and in ecological reserves.
DIVISION 6. PEST CONTROL OPERATIONS [11401. - 12408.]
CHAPTER 1. Definitions [11401. - 11485.]
Unless the context otherwise requires, the definitions in this chapter govern the construction of this division.
“Integrated pest management” means an ecosystem-based strategy that focuses on long-term prevention of pests or their damage through a combination of techniques such as biological control, habitat manipulation, modification of cultural practices, and use of resistant varieties. Pesticides are used only after monitoring indicates they are needed according to established guidelines and treatments are made with the goal of removing only the target organism. Pest control materials are selected and applied in a manner that minimizes risks to human health, beneficial and nontarget organisms, and the environment.
“License” means pest control business license, agricultural pest control adviser’s license, or pest control dealer’s license.
“Pest control” means the use or application of any pesticide. It also means the use of any substance, method, or device to do any of the following:
Control pests.
Prevent, destroy, repel, mitigate, or correct any pest infestation or disorder of plants.
Inhibit, regulate, stimulate, or otherwise alter plant growth by direct application to plants.
“Pesticide” is defined in Section 12753.
“Pest control dealer” means any person, including any manufacturer, distributor, or retailer who engages in any of the following business activities:
Selling pesticides to users for an agricultural use.
Selling to users any method or device for the control of agricultural pests, such as biological agents, lures, or insect-trapping devices.
Soliciting sales of pesticides by making agricultural use recommendations through field representatives, or other agents.
Selling to a user a pesticide classified pursuant to Section 14004.5 as a restricted material that requires either a permit for possession and use or which may be used only by or under the direct supervision of a certified applicator.
“Pest control dealer” does not include either of the following:
Any person licensed pursuant to Section 11701 to engage for hire in the business of agricultural pest control, as to pesticides recommended or sold by the licensee and applied by the licensee pursuant to the conditions of the license.
Any person licensed to engage in any activity that is defined as structural pest control pursuant to Chapter 14 (commencing with Section 8500) of Division 3 of the Business and Professions Code, as to pesticides recommended or sold by the licensee and applied by the licensee pursuant to the conditions of the license.
“Agricultural use” means the use of any pesticide or method or device for the control of plant or animal pests, or any other pests, or the use of any pesticide for the regulation of plant growth or defoliation of plants. It excludes the sale or use of pesticides in properly labeled packages or containers that are intended for any of the following:
Home use.
Use in structural pest control.
Industrial or institutional use.
The control of an animal pest under the written prescription of a veterinarian.
Local districts or other public agencies that have entered into and operate under a cooperative agreement with the State Department of Health Services pursuant to Section 116180 of the Health and Safety Code, provided that any exemption under this subdivision is subject to the approval of the director as being required to carry out the purposes of this division.
“Agricultural pest control adviser” means any person who offers a recommendation on any agricultural use, who holds himself or herself forth as an authority on any agricultural use, or who solicits services or sales for any agricultural use.
“Recommendation” means the giving of any instruction or advice on any agricultural use as to any particular application on any particular piece of property. “Recommendation” does not include any summary that does not specify the use to be made for any designated pest, provided that such summary is not in conflict with any registered pesticide label or with the supplementary printed direction delivered therewith or with any rule or regulation of the director.
“Sustainable pest management” means a holistic, whole system approach applicable to agricultural and other managed ecosystems and urban and rural communities that builds on the concept of integrated pest management to include the wider context of the three sustainability pillars: human health and social equity; environmental protection; and, economic vitality.
The Department of Pesticide Regulation shall consult with the Department of Food and Agriculture in any action relating to special local need registrations pursuant to Section 136v of Title 7 of the United States Code, emergency exemptions from registration pursuant to Section 136p of Title 7 of the United States Code, denial of new active ingredient registrations, suspension or cancellation of pesticide registrations or uses, or other measures adopted to mitigate unacceptable adverse pesticidal effects.
Consultation pursuant to subdivision (a) shall be as specified in a memorandum of understanding between the Department of Food and Agriculture and the Department of Pesticide Regulation. Information to be provided by the Department of Food and Agriculture shall include, but not be limited to, (1) impacts on agriculture resulting from the proposed action, (2) benefits derived from the use of the pesticide, and (3) any recommended alternative action.
Except for a suspension taken pursuant to Section 12826, the Department of Pesticide Regulation shall request in writing comments from the Department of Food and Agriculture regarding any proposed final decision to deny a new active ingredient registration or to suspend or cancel a pesticide registration. The Department of Pesticide Regulation shall specify in its request the period within which the Department of Food and Agriculture shall submit its comments in order for the Department of Pesticide Regulation to consider and to respond to them in the final written decision.
The director may do all of the following:
Adopt regulations that are reasonably necessary to carry out the provisions of this code that the director is required or authorized to administer or enforce.
Enter upon any premises to inspect the premises or any plant, appliance, or thing that is on those premises.
Notwithstanding any other provision of law, and except as provided in subdivision (d), provide, by rule or regulation, for the issuance and renewal on a two-year basis of licenses, certificates of registration, or other indicia of authority issued pursuant to the provisions of this code that the director is required or authorized to administer or enforce.
Adopt regulations for the issuance and renewal of licenses and certificates for pest control operations. On or after January 1, 2025, the director shall issue and renew these licenses and certificates for three years; provided, however, a license or certificate may be issued for less than three years based on when the applicant enters the three-year cycle.
Arrange for the services of any individual employed by the United States, the state, or a county on a collaborative basis and allow that person a reasonable fee and necessary expenses that are incurred when serving the department in a collaborative capacity.
The director shall keep a separate record of the classes and sources of income that is credited to, and disbursed from, the Department of Pesticide Regulation Fund.
On or before October 31 of each year, the department shall publish a financial report regarding the preceding fiscal year and shall make this report available to the public. The report shall describe in detail the amount and source of funding for the major programmatic functions of the department and other relevant information that may aid in evaluating the scope and impact of the activities of the department.
ARTICLE 4. Refunds [11480. - 11485.]
“Fee,” as used in this article, includes, but is not limited to, any application fee, license fee, permit fee, inspection fee, certification fee, registration fee, identification fee, analysis fee, certificate fee, or delinquent fee.
The director may authorize the refund of any money that is received or collected by the department in the payment of any fee, assessment, or tax, except that the director shall not authorize a refund of any money received by the department pursuant to a settlement agreement, stipulated judgment, or similar document or if the refund request is submitted more than four years after the payment was made.
An amount equal to the amount of the refund is, notwithstanding Section 13340 of the Government Code, hereby continuously appropriated without regard to fiscal years, from the funds into which the fees were deposited, to the director to make the refunds.
A refund may be made in whole or in part in any of the following instances:
A refund of a fee is requested by the payer before any examination, review, inspection, or similar activity has been performed or services rendered by the department for the payer.
The payment of a fee, assessment, or tax represents an overpayment, payment in duplicate, payment in error in law, or payment through error of the payer or the department.
The fiscal officer of the department shall make payment of any refund pursuant to this article upon the submission to the fiscal officer of a voucher prepared by the director, or his or her designee, that sets forth the facts that pertain to the refund and authorizes its payment.
If any money that is to be refunded has been deposited in the State Treasury, the Controller, upon receipt of a claim that is filed by the department, shall transfer that amount from the fund to which the money is credited to the director for payment of the refund.
If the director finds that the amount of any refund is less than fifty dollars ($50), the director may retain the amount for use for the same purpose for which the original payment was made, unless the payment was made in error in law, in which case the director shall refund the amount.
CHAPTER 2. General Provisions [11501. - 11520.]
To provide for the proper, safe, and efficient use of pesticides essential for production of food and fiber and for protection of the public health and safety.
To protect the environment from environmentally harmful pesticides by prohibiting, regulating, or ensuring proper stewardship of those pesticides.
To assure the agricultural and pest control workers of safe working conditions where pesticides are present.
To permit agricultural pest control by competent and responsible licensees and permittees under strict control of the director and commissioners.
To assure consumers and users that pesticides are properly labeled and are appropriate for the use designated by the label and that state or local governmental dissemination of information on pesticidal uses of any registered pesticide product is consistent with the uses for which the product is registered.
To encourage the development and implementation of pest management systems, stressing application of biological and cultural pest control techniques with selective pesticides when necessary to achieve acceptable levels of control with the least possible harm to nontarget organisms and the environment.
This division and Division 7 (commencing with Section 12501) are of statewide concern and occupy the whole field of regulation regarding the registration, sale, transportation, or use of pesticides to the exclusion of all local regulation. Except as otherwise specifically provided in this code, no ordinance or regulation of local government, including, but not limited to, an action by a local governmental agency or department, a county board of supervisors or a city council, or a local regulation adopted by the use of an initiative measure, may prohibit or in any way attempt to regulate any matter relating to the registration, sale, transportation, or use of pesticides, and any of these ordinances, laws, or regulations are void and of no force or effect.
If the director determines that an ordinance or regulation, on its face or in its application, is preempted by subdivision (a), the director shall notify the promulgating entity that it is preempted by state law. If the entity does not repeal its ordinance or regulation, the director shall maintain an action for declaratory relief to have the ordinance or regulation declared void and of no force or effect, and shall also bring an action to enjoin enforcement of the ordinance or regulation.
Neither this division nor Division 7 (commencing with Section 12501) is a limitation on the authority of a state agency or department to enforce or administer any law that the agency or department is authorized or required to enforce or administer.
At the request of any state agency disseminating information on the pesticidal uses of any product, the director shall consult with, and provide technical assistance to, that agency to ensure that the dissemination is based on valid scientific information and consistent with state law.
The director, and the commissioner of each county under the direction and supervision of the director, shall enforce this division and the regulations which are issued pursuant to it.
The director shall adopt regulations which govern the conduct of the business of pest control.
The director may adopt regulations to establish the minimum requirements of education, continuing education, training, experience, and examination for applicants for any license or certificate, or renewal of any license or certificate, issued by the director pursuant to this division or Division 7 (commencing with Section 12500). A regulation adopted or amended pursuant to this section pertaining to continuing education requirements shall establish minimum course requirements related to pesticides and pest management. The director shall approve courses that include plant health, organic and sustainable practices, integrated pest management, water and air monitoring and residue mitigation, maximum residue levels, quarantine practices, and the on-farm storage of fumigants, all in the context of pesticides and pest management. The director shall not renew a license or certificate if the person who was issued the license or certificate did not complete the required continuing education during the period of validity of the license or certificate, and the person shall take and pass the examination to be again issued the license or certificate. The director shall act within 15 business days of receipt to approve or reject continuing education courses submitted to meet the requirements of this division or Division 7 (commencing with Section 12500).
The director shall establish, by regulation, fees for the department’s licensing and certification programs as established pursuant to this division or Division 7 (commencing with Section 12500). These programs include, but are not limited to:
License and certificate examination, application, and renewal.
Approval of continuing education courses and continuing education course providers.
Changes related to any license or certificate, including, but not limited to, name or address changes, license or certificate replacement costs, duplicate copy of a license or certificate, and changes in qualified person, bond, insurance, or registered officers.
Penalties for late payment of licensing and certification fees.
The fees established pursuant to this section may include administrative costs, including overhead costs.
The regulations shall provide that the examination fee may be charged to applicants who request the secretary to reschedule an examination due to the applicant’s failure to obtain a passing score or failure to appear for the scheduled examination, and for scheduling an examination to amend a license.
The fees established pursuant to this section shall be set so that the total revenue collected each fiscal year is sufficient to support the expenditure levels for these programs contained in the annual Budget Act. If the secretary determines that the revenue collected during the preceding year was greater than, or less than, the expenditure levels for these programs set forth in the Budget Act, the secretary may further adjust the current fees to compensate for the overcollection or undercollection.
Funds collected pursuant to this section shall be deposited into the Department of Pesticide Regulation Fund, and shall be available for expenditure by the department, upon appropriation, for purposes of carrying out the programs established pursuant to this division or Division 7 (commencing with Section 12500).
The regulations adopted pursuant to this section, or any amendment thereto, shall be adopted by the secretary in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The adoption of these regulations shall be considered by the Office of Administrative Law as an emergency, and necessary for the immediate preservation of the public peace, health, safety, and general welfare. Notwithstanding any other law, the emergency regulations adopted pursuant to this section shall remain in effect until amended by the secretary.
On or before January 31 of each year, if the director determines that they might increase the fees established pursuant to this section during that calendar year, the department shall post the determination on its internet website and shall distribute the determination through any of the department’s relevant email lists.
The commissioner of any county may adopt regulations applicable in his or her county which are supplemental to those of the director which govern the conduct of pest control operations and records and reports of those operations. The regulations may include provisions pertaining to any matter related to the accomplishment of the purposes of Section 11737. The provisions of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code shall be followed insofar as practicable in the adoption of the regulations by the commissioner. The regulations shall be filed with the director who shall compile them.
Each regulation of the commissioner shall be approved by the director before it becomes operative. The director, in his or her review of the commissioner’s regulations, shall consider, but not be limited to considering, the necessity, authority, clarity, and consistency of the regulations, as these terms are defined in Section 11349 of the Government Code.
The county agricultural commissioner may apply Section 11503 to the agricultural use of any pesticide for agricultural production within one-quarter mile of a school with respect to the timing, notification, and method of application. Any regulations adopted pursuant to this section shall become operative unless specifically disapproved in writing by the director within 30 calendar days of their submission by the commissioner.
Prior to the adoption of regulations by a commissioner, a notice of intention to adopt regulations shall be published in the county, pursuant to Section 6061 of the Government Code, at least 10 days in advance of the time the regulations are to be adopted, amended, or repealed.
The notice of intention which is referred to in Section 11504 shall contain a statement of the time, place, and nature of proceedings for the adoption of the regulations, and either the express terms or an informative summary of the proposed regulations.
At least 10 days prior to the date set for the adoption, amendment, or repeal of the regulations, the commissioner shall mail a copy of the notice of intention to every person who has registered with the commissioner in the manner required by Article 2 (commencing with Section 11731), Chapter 4 of this division, and to any other interested person that has filed with the commissioner a request to receive a notice of such proceedings.
On the date and at the time and place designated in the notice of intention, the commissioner shall afford any interested person or his duly authorized representative, or both, the opportunity to present statements, arguments, or contentions in writing, with or without opportunity to present them orally.
The commissioner shall consider all relevant matter which is presented to him before he adopts any regulation.
In any hearing which is conducted pursuant to Section 11507, the commissioner or his duly authorized representative shall have authority to administer oaths or affirmations, and may continue or postpone such hearing, from time to time, to such time and at such place as he shall determine.
The regulations of the commissioner are subject to review and approval by the director as to reasonableness, and if approved they shall be filed with the director. The regulations shall become effective 30 days after they are approved by the director unless they are designated as emergency regulations.
If, in the opinion of the commissioner, the public health, welfare, or safety requires that any regulation take effect immediately he shall designate it as an emergency regulation and specify in writing the facts which constitute the necessity. An emergency regulation shall become effective on the date it is approved by the director.
Except as provided in Section 11512.5, the proceedings for all hearings conducted by the director pursuant to this division shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The director shall have all of the powers which are granted in that chapter.
The commissioner may refuse, suspend, or revoke a county registration or permit pursuant to Section 11735, 11924, 12035, or 14008. Before that action is taken, the party whose registration or permit request is to be refused, suspended, or revoked, the registered party, or the permittee shall be given a written notice of the proposed action, including the basis for the action, and shall have the right to request a hearing before the commissioner within 20 days after receiving notice of the proposed action. A notice of the proposed action that is sent by certified mail to the last known address of the person against whom the action is proposed shall be considered received even if delivery is refused or the notice is not accepted at that address. If a hearing is requested, notice of the time and place of the hearing shall be given at least 10 days before the date set for the hearing. At the hearing, the person shall be given an opportunity to present any evidence or argument on his or her own behalf. If a hearing is not requested in a timely manner, the commissioner may take the action proposed without a hearing. If the party whose registration or permit is refused, suspended, or revoked requested and appeared at a hearing, he or she may appeal to the director within 10 days of mailing or personal service of the commissioner’s decision. The following procedure shall apply to the appeal:
The appeal need not be formal, but it shall be in writing and signed by the appellant or his or her authorized agent and shall state the grounds for the appeal. The commissioner’s decision shall be stayed pending the director’s decision, except as provided in subdivision (b). The party whose registration or permit has been refused shall remain unregistered or unpermitted pending the outcome of the appeal.
Any party may, at the time of filing the appeal or within 10 days thereafter, make written application to the director to present new evidence, stating the materiality of the evidence, and the reasons why the evidence was not introduced at the hearing before the commissioner. The evidence may be allowed in the discretion of the director. Thereafter, 10 days shall be given the parties to rebut the evidence and make written application to the director to present oral or written argument. An application to present written argument shall be granted, but the director shall have discretion to grant oral argument or to grant both oral and written argument. If an application to present oral argument is granted, written notice of the time and place for oral argument shall be given each party at least 10 days before the date set therefor. The time may be shortened by mutual agreement of the parties. If written argument is granted, all parties shall be notified thereof and shall simultaneously file briefs within the time specified by the director.
The director shall decide the appeal upon the evidence received at the hearing before the commissioner, oral or written argument, and new or additional evidence as the director may have admitted.
On an appeal pursuant to this section, the director may sustain, reverse, or modify the decision of the commissioner. A copy of the director’s decision shall be delivered or mailed to each party. This shall not be a limitation on the director’s authority to institute proceedings against any state license or other indicant of permission issued pursuant to this division or pursuant to Division 7 (commencing with Section 12501).
A review of a decision of the director may be sought by the appellant within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
Notwithstanding any other provision of law, whenever the commissioner has reason to believe that continuance of a registration or permit specified in subdivision (a) endangers public health or safety or the environment, the commissioner, without prior notice, may immediately suspend the registration or permit. The commissioner shall inform the party registered or the permittee, in writing, of the suspension as soon as practical, specifying the reasons for the immediate suspension. When acting pursuant to this subdivision, the commissioner, within seven days of informing the permittee or registered person of the immediate suspension, shall issue a written notice of proposed action as specified in subdivision (a). Subdivision (a) applies to the notice of proposed action, hearing, and appeal, except as otherwise provided in this subdivision. If a hearing is requested, it shall be held not later than seven days from the date the request for the hearing is received by the commissioner, unless the person requesting the hearing agrees to a later hearing date. The commissioner’s decision shall be issued within 10 days after the conclusion of the hearing. If the party against whom action was taken requested and appeared at a hearing, he or she may appeal the commissioner’s decision, issued following the hearing, to the director as provided in subdivision (a). The director may stay the commissioner’s decision pending the director’s decision.
Any money which is derived under the provisions of Article 1 (commencing with Section 11701) of Chapter 4 and Article 1 (commencing with Section 11901) of Chapter 5 shall be paid into the State Treasury to the credit of the Department of Food and Agriculture Fund. Any money in the Department of Food and Agriculture Fund which is derived under the provisions of this division may be expended for the administration and enforcement of this division, notwithstanding any other provision of law which limits the expenditure of any such money to the specific purposes or to the administration or enforcement of each of these portions of this code separately.
Whenever a decision of the director suspends for 30 days or less the license of a person licensed pursuant to Sections 11701 to 11709, inclusive, or Sections 11901 to 11913, inclusive, and such suspension becomes final, the licensee may, before the operative date of such suspension, petition the director for permission to make a monetary payment in lieu of serving all, or a portion, of the suspension. Upon receipt of such petition, the director may stay the suspension while he makes such investigation as he deems desirable and may grant the petition if he is satisfied (a) that the public health, safety and welfare will not be impaired by permitting the licensee to operate during the period set for suspension; (b) the payment of the sum of money will achieve the desired disciplinary purpose; and (c) that it will be possible to determine with reasonable accuracy from the records of the licensee the services which would have been performed under the privilege of the license during the period in which the license would have been suspended.
As to a licensee engaged for hire in the business of pest control, the monetary payment stated in the petition shall be in a specific amount, which is estimated to be the equivalent of 20 percent of the gross receipts of the licensee for each day of the suspension and shall not be less than two hundred fifty dollars ($250) nor more than two thousand five hundred dollars ($2,500).
As to a licensee licensed with a pest control aircraft pilot’s certificate, the monetary payment in the petition shall be in a specific amount, which is estimated to be the equivalent of 50 percent of the gross earnings of the licensee for all work performed by him under the privileges of the license for each day of the suspension and shall not be less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
When the decision provides that a portion of the suspension shall be stayed on probationary conditions, the petition shall not apply to the portion of the suspension which is so stayed, nor shall such portion be included in determining the 30-day limitation for eligibility of the petition.
If the petition is accepted, then upon payment by the licensee of the sum specified the director shall enter his order permanently staying all or a portion of the suspension in accordance with the petition.
All payments received pursuant to this section shall be credited to the Department of Agriculture Fund for use in the administration and enforcement of this division.
Any person whose license or certificate issued pursuant to this division, Chapter 3.4 (commencing with Section 14090), or Chapter 3.6 (commencing with Section 14151) of Division 7 is revoked, or whose application for such a license or certificate is denied for reasons other than his or her failure to satisfy examination requirements, is ineligible for a period of three years from the effective date of the decision to deny or revoke the license or certificate to apply or reapply as an individual, a business, or officer, director, administrator, or owner with a 10 percent or greater interest in a business, whichever is applicable, for the same kind of license or certificate or another license or certificate issued by the department if the grounds for the revocation or denial are determined by the department to be directly relevant to the functions, duties, or responsibilities of that other license or certificate.
A commissioner accepting payment for pest control registrations or services by credit card or other payment device may impose a charge for costs incurred in connection with that form of payment and shall use his or her best efforts to minimize those costs. The terms “credit card” and “payment device” have the same meaning as defined in Section 6161 of the Government Code.
The department shall convene a Department of Pesticide Regulation Environmental Justice Advisory Committee by January 1, 2026.
The advisory committee shall be composed of up to 11 members, and shall include all of the following:
At least two environmental justice leaders who represent rural communities with the most significant exposure to pesticides.
At least one environmental justice leader who represents urban communities with the most significant exposure to pesticides.
At least one representative of Native American, tribal, or indigenous groups.
At least one farmworker advocate.
Up to one person with expertise in issues affecting socially disadvantaged farmers or ranchers.
Up to one agroecologist or biologist with an environmental justice background.
The goal of the composition of the advisory committee membership is to reflect the geographic diversity of California and represent communities in the central coast, central valley, and southern and northern California.
The Director of Pesticide Regulation shall appoint the advisory committee members from nominations received from environmental justice organizations, community groups, or other organizations or entities implementing program work that seeks to achieve environmental justice as defined in Section 65040.12 of the Government Code through an open, public process.
The advisory committee, in consultation with the department, shall adopt a charter that includes, but is not limited to, the governance structure of the advisory committee, term limits, an application process for new advisory committee members, and the process for identifying prioritized recommendations.
The advisory committee shall provide prioritized recommendations to the department on ways to integrate environmental justice considerations into department programs, policies, decisionmaking, and activities, and on how the department can improve its engagement with communities with the most significant exposure to pesticides.
The advisory committee shall develop prioritized recommendations within the department’s authority as specified in statute. The prioritized recommendations shall be done through a public process and take public feedback into consideration.
The members of the advisory committee may receive a reasonable per diem allowance as specified in Section 11564.5 of the Government Code, or at a higher rate that may be established by the department, for each day’s attendance at a noticed meeting of the advisory committee.
The members of the advisory committee may be reimbursed for actual and necessary travel expenses incurred in connection with their official duties.
The advisory committee members and the department shall cofacilitate advisory committee meetings. The advisory committee shall hold, at a minimum, two public meetings annually, of which at least one per year shall be held in a community with high pesticide use. Members of the advisory committee shall be provided with a remote call-in option. Language access shall be available to advisory committee members and the public.
The advisory committee’s recommendations for the department shall be posted, as needed, on the department’s internet website.
The department shall post, as needed, on its internet website, an update on its efforts to incorporate the recommendations of the advisory committee.
For purposes of this section, the following definitions apply:
“Advisory committee” means the Department of Pesticide Regulation Environmental Justice Advisory Committee established pursuant to this section.
“Department” means the Department of Pesticide Regulation.
“Socially disadvantaged farmer or rancher” has the same meaning as defined in Section 512.
The Legislature finds and declares that it is important for California to implement sustainable pest management.
In order to achieve the goal described in subdivision (a), it is the intent of the Legislature that the state do all of the following:
Prioritize prevention and strengthen California’s commitment to pest prevention by doing both of the following fundamental actions:
Proactively preventing the establishment of new invasive pest species through a significant expansion of the state’s biosecurity and invasive pest mitigation system.
Proactively eliminating pest-conducive conditions both in agricultural and urban settings.
Coordinate state-level leadership by doing all of the following:
Creating an accountable and connected leadership structure so that the state effectively embeds sustainable pest management principles across agencies.
Identifying ways to improve coordination within and between agencies and programs for both agricultural and urban pest management.
Enhancing the ability to champion sustainable pest management practices in urban and agricultural settings.
Prompting the development of alternatives by encouraging research and innovation.
Invest in building sustainable pest management knowledge by significantly reinvesting in sustainable pest management-focused research and outreach so that all pest management practitioners have equal and adequate access to the support and resources necessary to develop and implement their own sustainable pest management system in a way that effectively manages pests, minimizes adverse impacts to humans and the environment, and is economically viable.
In agricultural pest management, subparagraph (A) includes securing a significant increase in sustainable pest management-trained technical advisers and funding for sustainable pest management research and outreach and increasing human capacity for those programs in ways that reflect and serve the diversity of California farms and agricultural producers.
In urban pest management, subparagraph (A) includes expanding funding and infrastructure for urban sustainable pest management research, innovation, and outreach to align with and reflect the volume and impacts of pesticides used in urban contexts, which requires providing adequate dedicated annual funding for urban-focused academics, research, and extension.
Improve California’s pesticide registration processes and bring more alternative products to market by doing all of the following:
Creating mechanisms to improve the department’s registration review process and to prioritize and expedite safer, more sustainable products.
Requiring the department’s processes to reflect the goals of sustainable pest management and requiring the department to provide clarity on its scientific review and decisionmaking process for both registrants and the public.
Requiring the department to improve its processes for evaluating pesticides that are already registered.
Enhance monitoring and data collection by significantly expanding and fully funding health and environmental monitoring infrastructure, data collection, and interpretation, which will enable the state to accurately track pesticide-related human illnesses and the presence of pesticides in land, water, air, biota, and structures and provide pesticide-use data and information needed for sound regulatory decisions.
CHAPTER 3. Exemptions [11531. - 11531.]
Except as provided in Chapter 6 (commencing with Section 12001), this division does not apply to any person while engaged in any of the following:
An activity that is defined as structural pest control and required to be licensed under Chapter 14 (commencing with Section 8500) of Division 3 of the Business and Professions Code.
Preservative treatment of fabrics or structural materials.
Sanitation services for collection, disposal, and treatment of wastewater, refuse, or sewage.
Seed treatment that is incidental to the person’s regular business.
Live capture and removal or exclusion of vertebrate pests, bees, or wasps without the use of pesticides. Vertebrate pests include, but are not limited to, bats, raccoons, skunks, squirrels, mice, rats, and pigeons. This section does not exempt a person from the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code).
Pool cleaning services, unless the person is selling, applying, using, or distributing a restricted material.
CHAPTER 4. Pest Control [11701. - 11897.]
ARTICLE 1. Licenses and Permits [11701. - 11711.]
It is unlawful for a person to advertise, solicit, or operate as a pest control business, unless the person has a valid pest control business license issued by the director.
Every principal and branch office of a business licensed pursuant to Section 11701 shall have at least one person in a supervisory position who holds a qualified applicator license issued pursuant to Chapter 8 (commencing with Section 12201). The qualified applicator license shall include the categories of pest control activities supervised by that person who is employed by that business.
Applicants for a pest control business license shall do all of the following:
Submit information to the director covering the applicant’s business and personal qualifications that the director requires.
Designate in the application the qualified applicator who shall be responsible for the conduct of the principal office of the applicant and of each branch location.
Satisfy the director of the responsibility of the applicant as to any of the following:
Equipment and facilities.
Financial ability to perform the work authorized by the license and to respond in damages for any illness, injury, or damage resulting from the work, which ability may be satisfied by insurance in a form satisfactory to the director insuring against liability for personal injury and property damage in an amount prescribed by regulation of the director. The amount shall be related to the volume and type of pest control operations for which the applicant is licensed to perform.
Personal responsibility to conduct the business.
The director shall establish by regulation the general classes of pest control operations in which the applicant may be qualified.
Licensing by the director shall not derogate from the authority of commissioners stated in Sections 11731 to 11741, inclusive.
If the applicant maintains any branch office in this state or outside this state and the applicant engages in the pest control business in this state from that branch office, the applicant shall pay an additional fee as prescribed by the director pursuant to Section 11502.5 for each of these branch offices.
A person who is regularly engaged in the business of maintenance gardening and who desires to engage in pest control for hire incidental to that business shall qualify for a pest control business license in the maintenance gardener category by passing the certified commercial applicators examination in both the laws and regulation and the landscape maintenance categories.
The maintenance gardener category shall be limited to pest control in ornamental and turf plantings indoors, in commercial parks, or surrounding structures. A contract or verification that the pest control operation is incidental and that maintenance gardening is the primary purpose shall be immediately submitted to the commissioner or director upon request.
An application for a license limited to the maintenance gardener category shall be accompanied by a fee as prescribed by the director pursuant to Section 11502.5.
The director shall issue to each applicant that satisfies the requirements of this article a license that authorizes the applicant to perform the type or types of pest control activities specified in the license during the calendar years for which the license is issued, unless the license is sooner revoked or suspended.
The license may be renewed before its expiration through application in the form prescribed by the director and upon payment of the proper fee as prescribed by the director pursuant to Section 11502.5.
To any fee which is not paid by the date of expiration, there shall be added a penalty as prescribed by the director pursuant to Section 11502.5.
The director may refuse to grant any license and may revoke or suspend any license if the applicant or licensee:
Does not have, or has not maintained at its principal office and at each branch location, a person who holds a qualified applicator license issued pursuant to Chapter 8 (commencing with Section 12201) to actively supervise all operations performed for each such location as prescribed by regulations of the director. This subdivision does not apply to businesses that are licensed only in the maintenance gardener category.
Does not have, or has not maintained, adequate safe equipment and facilities to perform the operations undertaken or to be undertaken.
Does not have adequately trained personnel to perform the operations undertaken or to be undertaken.
Violates or permits the violation of any provision of this division and Division 7 (commencing with Section 12501) pertaining to pesticides or of any regulations adopted pursuant thereto by the director or any commissioner or any industrial safety order relating to pesticides issued by the Department of Industrial Relations.
Fails to maintain and report to the director or commissioner, as required, information concerning pest control performed or authorized to be performed by the license or the registration of the commissioner.
Any hearing to deny, suspend, or revoke a license shall be heard under the Administrative Procedure Act, Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. However, if the director finds on the basis of affidavits submitted to him or her by the enforcement personnel provided in Section 11501.5, or by injured parties, that the protection of the public welfare or safety requires immediate action, the director may, without hearing, temporarily suspend or condition the license of any pest control operator and shall forthwith schedule the matter for hearing. The director may terminate the suspension of, or any condition placed upon, a license upon correction of the defects of equipment, establishment of adequate safety practices, or any other corrective action as he or she deems satisfactory to assure compliance with the requirements of statutes and regulations. In that event, the matter may proceed to hearing as though the license had not been suspended or the conditions placed upon it.
A person not regularly engaged in the business of pest control that operates only in the vicinity of his or her own property and for the accommodation of his or her neighbors is not required to pay the fee specified by Section 11703, but is required to procure a license. The person shall register with the commissioner as provided in Section 11732, and is subject to all other provisions of this division. The determination of the director that a person is engaged in the business of pest control beyond the vicinity of his or her own property or for the accommodation of others than his or her neighbors is final.
A person that is regularly engaged in the business of tree surgery is not required to procure a license to remove diseased or infested tissues or apply disinfectants to wounds or cavities incidental to tree surgery. If such person desires to engage in any other pest control operation, he shall procure a license from the director, shall register with the commissioner as provided in Section 11732, and is subject to all other provisions of this division.
Unless worker’s compensation insurance is not required, no license may be issued or renewed under this chapter to any person who is an employer, as defined in Section 3300 of the Labor Code, unless the application is accompanied by identification and the number and expiration date of the worker’s compensation insurance policy of the applicant or the applicant is a qualified self-insurer.
ARTICLE 2. Registration [11731. - 11741.]
“Commissioner,” as used in this article, includes the director in any county in which there is no commissioner.
It is unlawful for any person to advertise, solicit, or operate as a pest control business in any county unless the person has registered with the commissioner for the current calendar year.
The registration shall be in the form prescribed by the commissioner and shall show all of the following information:
Name and address of the registrant.
Number and kind of units to be operated in the county.
Type of pests that are intended to be controlled.
Any other information as the commissioner may require.
The registrant shall keep and maintain a record of each property treated that shows all the information required by the director or commissioner.
The registrant shall report the information to the commissioner or the director when and in the form as required.
The board of supervisors of any county may establish reasonable fees for the registration required under Section 11732. Payment of the fee shall be due by the date designated by the commissioner. However, registration fees for pest control businesses licensed pursuant to Section 11704 shall be that amount necessary to cover the costs of registration, but shall not exceed twenty-five dollars ($25) per year.
A pest control operator registration may be refused, revoked, or suspended by the commissioner, if the commissioner makes any of the following findings:
That the equipment of the registrant or applicant is unsuitable.
That the operators employed by him are incompetent or unqualified.
That the registrant or the applicant has not complied with any provision of this division or of Division 7 (commencing with Section 12501) pertaining to pesticides, or with regulations adopted pursuant to the provisions, or with any lawful order of the commissioner.
The commissioner or director may order any person or the agent or employee of any licensee or registrant or person, to cease operation of any equipment or facility which he finds unsuitable, or which he finds being operated in any of the following ways:
By an incompetent or unqualified person.
In violation of this division or Division 7 (commencing with Section 12501) relating to pesticides or any regulation issued thereunder or any regulation of the commissioner.
In a manner or under conditions which may interfere with proper control of the pest for which treatment is applied.
In a manner or under conditions which may cause injury, illness, or adverse effects to persons or animals, or cause damage to crops or property being treated, or to crops or property of others.
It is unlawful for any person to violate any order of a commissioner or the director made pursuant to Section 11737. The commissioner or director may bring an action to enjoin the violation or the threatened violation of any order made pursuant to Section 11737 in the superior court in the county in which the order was issued or the violation has occurred or is threatened, and the court may enjoin such violation or threatened violation upon such showing and without further evidence of irreparable injury. The court may compel specific performance of any acts or course of conduct necessary to protect persons, animals, crops, or property.
The regulations of the commissioner may provide for the qualification, by examination or otherwise of the following persons:
Registrants.
Persons in charge of the pest control operations of registrants within the county.
Persons employed by registrants to operate pest control equipment, other than aircraft, within the county.
The regulations of the commissioner may provide that it is a ground for cancellation of registration to operate pest control equipment within the county unless either:
A person qualified pursuant to Section 11738 is in charge of the operations.
Each unit which is operated within the county is under personal direction of a person qualified pursuant to Section 11738.
Any certificate of qualification which is issued pursuant to Section 11738 may be revoked or suspended, or its issuance or renewal refused, if the commissioner finds that the applicant or holder of the certificate is incompetent or has violated any provision of this division, or any regulation which is issued pursuant to it, or has not complied with any lawful order of the commissioner.
Any person whose certificate has been revoked, suspended, or refused may appeal to the director within 10 days for a hearing.
ARTICLE 3. Report of Damage From Pesticides [11761. - 11765.]
Any person that alleges any loss, nonperformance, or damage as a result of the use or application of any pesticide, or of any substance, method, or device for pesticidal purposes; or for the purpose of preventing, destroying, repelling, mitigating, or correcting any disorder of plants; or for the purpose of inhibiting, regulating, stimulating, or otherwise altering plant growth by direct application to plants or soil shall, within 30 days from the time that the occurrence of such loss, nonperformance, or damage became known to such person, file with the commissioner of the county in which the loss, nonperformance, or damage, or some part of the loss, nonperformance, or damage, is alleged to have occurred, a verified report of the loss, nonperformance, or damage.
If a growing crop is alleged to have been damaged as a result of the activities which are described in Section 11761, the verified report of loss, nonperformance, or damage shall be filed prior to the time 50 percent of the crop is harvested, unless the loss, nonperformance, or damage is not known until after the crops are harvested.
The verified report of loss, nonperformance, or damage shall set forth, so far as known to the claimant, all of the following:
Name and address of the claimant.
Type, kind and location of property which is allegedly injured or damaged.
Date the alleged loss, nonperformance, or damage occurred.
Name of pest control operator that is allegedly responsible.
Name of the owner or occupant of the property for whom the person or pest control operator was rendering labor or services.
The filing of the verified report, or the failure to file it, need not be alleged in any complaint which may be filed. The failure to file the verified report of loss, nonperformance, or damage is not a bar to the maintenance of a civil action for the recovery of damages for the loss, nonperformance, or damage.
The failure to file a verified report of loss is evidence that no loss, nonperformance, or damage occurred.
ARTICLE 4. Violations [11791. - 11792.]
It is unlawful for any person subject to this division to do any of the following:
Make any false or fraudulent claim, or misrepresent the effects of material or method to be applied, apply any worthless or improper material, or otherwise engage in any unfair practices.
Operate in a faulty, careless, or negligent manner.
Refuse or neglect to comply with this division, or any regulation issued pursuant to this division, or any lawful order of the commissioner or the director.
Refuse or neglect to keep and maintain the records which are required by this division, or to make reports when and as required.
It is also unlawful for any person that is subject to this division to do any of the following:
Make any false or fraudulent record or report.
Operate in any county without first having registered with the commissioner.
Operate equipment with incompetent or unqualified persons in charge of the equipment.
Make any false or fraudulent statement, record, or report or use any fraud or misrepresentation in connection with meeting any license requirement found in this division.
Cheat on or subvert a licensing examination. As used in this subdivision, “subvert” includes, but is not limited to, the unauthorized possession, reproduction, or distribution of any portion of the licensing examination.
Fail to comply with the provisions of Chapter 3 (commencing with Section 14001) of Division 7.
ARTICLE 5. Penalties and Injunctive Relief [11891. - 11895.5.]
Every person who violates this division, or any regulation issued pursuant to this division, is guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than five thousand dollars ($5,000) nor more than fifty thousand dollars ($50,000), or by imprisonment of not less than 10 days nor more than six months, or by both that fine and imprisonment. Each violation constitutes a separate offense.
Any person who violates this division, or any regulation issued pursuant to this division, is liable civilly in an amount not less than three thousand dollars ($3,000) nor more than thirty thousand dollars ($30,000) for each violation. Any money recovered under this section shall be paid into the Department of Pesticide Regulation Fund for use by the department in administering and enforcing this division pursuant to Section 11513, and in administering Division 7 (commencing with Section 12501).
Upon a complaint by the director, the Attorney General may bring an action for civil penalties in any court of competent jurisdiction in this state against any person violating any provision of this division, or any regulation issued pursuant to it. The Attorney General may bring an action for civil penalties on his own initiative if, after examining the complaint and the evidence, he or she believes a violation has occurred.
An action brought pursuant to this article shall be commenced by the director, the Attorney General, the district attorney, the city prosecutor, or the city attorney, as the case may be, within two years of the occurrence of the violation. However, when an investigation is completed and submitted to the director, the action shall be commenced within one year of that submission.
The commissioner or director may bring an action to enjoin the violation or the threatened violation of any order made pursuant to this division in the superior court in the county in which the order is issued or the violation occurs or is threatened, and the court may enjoin the violation or threatened violation upon that showing and without further evidence of irreparable injury. The court may compel specific performance of any acts or course of conduct necessary to protect persons, animals, crops, or property.
ARTICLE 6. Cease and Desist [11896. - 11897.]
The director, upon a finding that the use, handling, delivery, or sale of a pesticide in violation of any provision of this division, or any regulation issued pursuant to it, is taking place, or appears imminent, and that activity if allowed to proceed will present an immediate hazard or cause irreparable damage, may issue an order to the persons responsible for such activity to cease and desist from further commission of the violation.
The agricultural commissioner, upon a finding that the use, handling, delivery or sale of a pesticide in violation of any provision of this division, or any regulation issued pursuant to it, is taking place, or appears imminent, and that activity if allowed to proceed will present an immediate hazard or cause irreparable damage, may issue an order to the persons responsible for the activity to cease and desist from further commission of the violation.
Any person aggrieved by a cease and desist order issued by an agricultural commissioner may appeal the order to the director, who shall affirm, modify, or rescind the order. The order of the agricultural commissioner shall remain in force during the appeal to the director, and until the director’s decision has been rendered.
CHAPTER 5. Aircraft Operation Regulation [11901. - 11940.]
ARTICLE 1. Generally [11901. - 11911.]
It is unlawful for any person to operate a manned aircraft in pest control unless the pilot operating the aircraft holds a valid manned pest control aircraft pilot’s certificate issued by the director and an appropriate and valid commercial pilot’s certificate and a current appropriate medical certificate issued by the Federal Aviation Administration.
It is unlawful for any person to operate an unmanned aircraft system in pest control unless the pilot operating the unmanned aircraft system holds a valid manned pest control aircraft pilot’s certificate or a valid unmanned pest control aircraft pilot’s certificate issued by the director and is certified or otherwise authorized by the Federal Aviation Administration to operate an unmanned aircraft system approved by the Federal Aviation Administration to conduct pest control.
Each manned pest control aircraft pilot’s certificate shall designate the manned pest control aircraft pilot’s status as a journeyman or apprentice.
Each unmanned pest control aircraft pilot’s certificate shall designate the unmanned pest control aircraft pilot’s status as a journeyman, apprentice, private applicator, or vector control technician.
An individual with a private applicator unmanned pest control aircraft pilot’s certificate shall only apply pesticides for the purpose of producing an agricultural commodity on property owned, leased, or rented by the pilot or their employer.
To be eligible for an unmanned pest control aircraft pilot’s certificate under the status of vector control technician, a pilot shall be certified by the State Department of Public Health as a vector control technician in the category of mosquito control pursuant to paragraph (1) of subdivision (a) of Section 2052 of the Health and Safety Code.
To be eligible for an unmanned pest control aircraft pilot’s certificate under the status of private applicator, a pilot shall submit satisfactory documentary proof demonstrating the pilot’s completion of a program accredited by the director and possession of a valid private applicator certificate.
A fee as prescribed by the director pursuant to Section 11502.5 shall accompany each application for an initial certificate.
Every certificate shall expire on December 31 of the last year for which it is issued. Certificates may be renewed before their expiration through application in the form prescribed by the director and upon payment of the proper fee as prescribed by the director pursuant to Section 11502.5. A penalty as prescribed by the director pursuant to Section 11502.5 shall be assessed against any applicant who applies for renewal after the expiration date.
Before an initial manned or unmanned certificate is issued, the applicant for an apprentice, journeyman, private applicator, or vector control technician shall pass an examination to demonstrate to the director the applicant’s ability to legally and safely conduct pest control operations and the applicant’s knowledge of the nature and effect of materials that are used in pest control.
A journeyman’s certificate shall not be issued to any applicant, other than the holder of an apprentice certificate, unless such applicant has had in effect a journeyman’s certificate issued by the director within the previous two calendar years.
Except as provided in subdivision (b), a journeyman’s certificate shall not be issued until both of the following have occurred:
The applicant has served as an apprentice under a certificate issued pursuant to this chapter for one year.
The applicant presents to the director satisfactory documentary proof consisting of a declaration or affidavit by the holder of a journeyman’s certificate attesting to the applicant’s performance, under the attesting journeyman’s direct and personal supervision, of not less than 150 hours of operation of fixed-wing aircraft or 50 hours of operation of nonfixed-wing aircraft within the previous two calendar years in pest control activities, together with any other evidence as the director may require.
The director may adopt regulations to establish specific requirements for obtaining an unmanned journeyman certificate.
The regulations shall consider requiring that the applicant complete 50 hours of operation of nonfixed-wing aircraft, or the equivalent practical training, in pest control activities within the previous two calendar years to ensure the legal and safe application of pesticides.
Each applicant for an apprentice certificate shall satisfy the director, through documentary evidence or other suitable information, that the applicant shall conduct pest control activities only under the direct and personal supervision of a person that holds a journeyman’s certificate.
It is unlawful for the holder of an apprentice certificate to conduct pest control activities unless such activities are conducted under the direct and personal supervision of a person that holds a journeyman’s certificate.
The director may refuse to issue a manned or unmanned pest control aircraft pilot certificate to an applicant and may revoke or suspend a manned or unmanned pest control aircraft pilot certificate after a hearing in which one or more of the following findings are made:
The person is not qualified to conduct the pest control operations in accordance with the certificate.
The application or certificate is for the operation of a manned aircraft in pest control and the person does not hold an appropriate and valid commercial pilot’s certificate and a current appropriate medical certificate issued by the Federal Aviation Administration.
The application or certificate is for the operation of an unmanned aircraft system in pest control and the person does not hold a certificate or other authorization issued by the Federal Aviation Administration for the operation of an unmanned aircraft system authorized by the Federal Aviation Administration for pest control.
The person has violated any provision of, or any regulation adopted pursuant to, this division or Division 7 (commencing with Section 12501) pertaining to pesticides, any regulation of a county agricultural commissioner, or any industrial safety order of the Department of Industrial Relations, or has not complied with any order of the director or commissioner as authorized by Section 11737.
The person has violated any regulation or privacy guideline adopted by the Federal Aviation Administration pertaining to the commercial operation of an unmanned aircraft system.
The director may, pending a hearing, suspend or condition the certificate of any pest control aircraft pilot when, upon an investigation that the director determines to be necessary and upon the receipt of affidavits by the enforcement personnel provided in Section 11501.5 or injured parties, the director finds that continuance of the certificate endangers public welfare or safety. The director may terminate the suspension or condition upon the taking of corrective action that the director determines to be satisfactory to ensure qualification or compliance with the law or regulations. In that event, the matter may proceed to hearing as though that action had not been taken.
Notwithstanding any other provision of this article, if the holder of a certificate is called to active duty as a member of the armed forces of the United States of America, the holder, upon the termination of such active duty, is entitled to renewal of such certificate in the same category, if he does all of the following:
Makes application to the director.
Pays the renewal fee required by the director.
Demonstrates to the director his ability to conduct pest control operations and his knowledge of the nature and effect of materials which are used in pest control.
ARTICLE 1.5. Registration [11920. - 11924.]
It is unlawful for any person to act as a pest control aircraft pilot in any county without first registering with the appropriate county agricultural commissioner.
Each pest control aircraft pilot shall register in person with the agricultural commissioner of the county where he intends to work or with the director if the county does not have an agricultural commissioner. Registration in any additional county may be made in person or by mail on prescribed forms which may be obtained and processed in the county where personal registration is made.
Registration shall be renewed annually by all pest control aircraft pilots.
County boards of supervisors may set fees for registration to cover the cost of registering pest control aircraft pilots but in no case shall such fee total more than ten dollars ($10) per year for a pilot who registers in person in the county in which he intends to work, and five dollars ($5) per year for a pilot already registered in another county and who is now registering in an additional county as provided in Section 11921.
A pest control aircraft pilot registration may be refused, revoked, or suspended by the agricultural commissioner for the reasons indicated in Section 11910 for the refusal, revocation, or suspension of a pest control aircraft pilot certificate.
ARTICLE 2. Financial Responsibility [11931. - 11940.]
As used in this article:
“Judgment” means a final judgment of any court of competent jurisdiction in this or any other state, or of the United States, against a person as defendant upon a cause of action which arises out of any pest control operation.
“Operator” means any person that is required to be licensed pursuant to this division who is authorized to apply any pest control material or substance by dusting, spraying, or any other manner whereby such material or substance is applied through the medium of aircraft.
“Pest control operation” means the application of any pest control material or substance by an operator.
For the purposes of this article:
A judgment is satisfied when twenty-five thousand dollars ($25,000) has been credited upon any judgment in excess of that amount which arises out of any one accident or occurrence.
A deposit of bond or other obligation for the payment of which the full faith and credit of the United States or of this state is pledged is considered a deposit of money.
The director shall suspend the license of any operator upon receiving a copy of a judgment and a certificate of facts relative to such judgment, upon a form that is provided by the director, which indicate that the operator has not for a period of 30 days satisfied a final judgment rendered against him.
The suspension shall remain in effect and no license shall be issued to the operator unless and until the judgment is satisfied, or the operator submits to the director proof of his financial ability to respond in damages pursuant to the judgment.
Proof of such financial responsibility may be made by furnishing security in an amount not less than twenty-five thousand dollars ($25,000). The security may consist of any of the following:
A surety bond in favor of any person that may suffer damage by reason of any pest control operation by the operator which is executed by an admitted surety insurer.
An insurance policy which insures the operator against liability for damages pursuant to the judgment.
If the security which is required by Section 11934 is diminished in amount by reason of any recovery against it, the security shall be replenished so that it amounts to not less than twenty-five thousand dollars ($25,000).
Upon the expiration of 30 days after any judgment becomes final, which is not stayed or satisfied in any action which results in a judgment for damages, the clerk of a court shall forward to the director a certified copy of the judgment or a certified copy of the register of actions, and a certificate of facts relative to the judgment, on a form which is provided by the director.
Any person whose license has been suspended, is about to be suspended, or becomes subject to suspension pursuant to this article, may relieve himself from the suspension by filing with the director an affidavit which states all of following:
That at the time of the incident upon which the judgment was rendered he was insured.
That the insurer is liable to pay the judgment.
The reason, if known, why the insurance company has not paid the judgment.
The person that files the affidavit pursuant to Section 11938 shall also file the original policy of insurance or a certified copy of the policy, if available, and such other documents as the director may require to show that the loss, injury, or damage for which the judgment was rendered, was covered by the policy of insurance.
If the director is satisfied from the papers which are filed pursuant to Sections 11938 and 11939 that the insurer was authorized to issue the policy of insurance in this state at the time of issuing the policy and that the insurer is liable to pay the judgment, at least to the extent and for the amounts which are provided in this article, the director shall not suspend the license or, if the license has already been suspended, he shall reinstate it.
CHAPTER 6. Agricultural Pest Control Advisers [12001. - 12054.]
ARTICLE 1. General Provisions [12001. - 12005.]
No person shall act, or offer to act, as an agricultural pest control adviser without first having secured an agricultural pest control adviser license from the director. Officials of federal, state, and county departments of agriculture and the University of California personnel engaged in official duties relating to agricultural use are exempt from this section if any recommendation by any of these persons as to a specific application on a specific parcel is made in writing. Officials of districts formed pursuant to Chapter 4 (commencing with Section 5780) of Division 5 of the Public Resources Code are exempt from this section until July 1, 1995, if any recommendation by any of these persons as to a specific application on a specific parcel is in writing.
No person shall act, or offer to act, as an agricultural pest control adviser in any county wherein he makes any recommendation for agricultural use without first registering with the county agricultural commissioner.
Agricultural pest control advisers shall put all recommendations concerning any agricultural use in writing. One copy of each such written recommendation shall be signed and dated and shall be furnished to the operator of the property prior to the application. Where a pesticide use is recommended a copy shall also be furnished to the dealer and the applicator prior to the application.
Each written recommendation shall include, when applicable, the following:
The name and dosage of each pesticide to be used or description of method recommended.
The identity of each pest to be controlled.
The owner or operator, location of and acreage to be treated.
The commodity, crop, or site to be treated.
The suggested schedule, time, or conditions for the pesticide application or other control method.
A warning of the possibility of damages by the pesticide application that reasonably should have been known by the agricultural pest control adviser to exist.
The signature and address of the person making the recommendation, the date, and the name of the business such person represents.
Any other information the director may require.
Agricultural pest control advisers and agricultural pest control operators shall retain one copy of each written recommendation for one year following the date of such recommendation. A copy of a recommendation shall be immediately furnished to the agricultural commissioner upon his request.
The director may adopt such rules and regulations in order to carry out the provisions of this chapter as are reasonably necessary to effectuate the purposes of this division.
ARTICLE 2. Licensing [12021. - 12024.]
An application for an agricultural pest control adviser license shall be in the form prescribed by the director. Each application shall state the name and address of the applicant specified on the application and any other information required by the director. The application shall be accompanied by a fee as prescribed by the director pursuant to Section 11502.5 to be paid into the State Treasury to the credit of the Department of Pesticide Regulation Fund. All licenses issued under this article shall expire on December 31 of the last year for which they are issued. Licenses may be renewed before their expiration through application in the form prescribed by the director and upon payment of a fee as prescribed by the director pursuant to Section 11502.5. A penalty as prescribed by the director pursuant to Section 11502.5 shall be assessed against any applicant who applies for a renewal of the license after the expiration date.
Applicants for licensing shall elect to be examined for certification in one or more of the following categories:
Control of insects, mites, and other invertebrates.
Control of plant pathogens.
Control of nematodes.
Control of vertebrate pests.
Control of weeds.
Defoliation.
Plant growth regulation.
The examination shall be prepared and administered by the director.
An agricultural pest control adviser license may be refused or may be revoked or suspended by the director as necessary to carry out the purposes of this division. Cause for refusal, revocation, or suspension shall include, but shall not be limited to the following:
Failure to put a recommendation in writing.
The making of false or fraudulent statements in any written recommendation.
Failure or refusal to comply with any provision of this chapter, or any other regulation adopted by the agricultural commissioner.
Failure or refusal to comply with any provisions of this division or of Division 7 (commencing with Section 12501) relating to pesticides or regulation of the department adopted pursuant to such provisions.
Failure to qualify by examination in at least one of the categories in Section 12022.
Unprofessional conduct, as defined in Section 12023.5.
In addition to any other provision of this code, unprofessional conduct shall constitute a basis for refusal, revocation, or suspension of an agricultural pest control license. “Unprofessional conduct” means either of the following:
Repeated acts of recommending the clearly excessive use of a pesticide or any method or device for the control of plant, animal, or other pests.
Repeated acts of recommending the use of an ineffective pesticide or any ineffective method or device for the control of plant, animal, or any other pests.
The director by regulation shall establish the minimum requirement for pest control adviser by education, experience, and examination to carry out the purposes of this division.
ARTICLE 3. Registration [12031. - 12035.]
Each agricultural pest control adviser who makes any recommendation for agricultural use shall register in person with the agricultural commissioner in the county listed in the adviser’s address on the license issued pursuant to Article 2 (commencing with Section 12021) or with the director if the county does not have an agricultural commissioner. If the address of the adviser on the state license is not within this state, the registration shall be in the county of occupational choice. Registration in any additional county shall be made by mail or in person, at the discretion of the commissioner of the additional county. The additional registration by mail shall be made on prescribed forms which may be obtained and processed in the county listed in the address of the adviser on the state license or the county of occupational choice, as the case may be.
Registration shall be renewed annually by all agricultural pest control advisers.
County boards of supervisors may set fees for registration to cover the cost of registering pest control advisers, but in no case shall the fee total more than ten dollars ($10) per year for a pest control adviser to register in person in the county listed in the adviser’s address on the license issued pursuant to Article 2 (commencing with Section 12021) or the county of occupational choice, as the case may be, and five dollars ($5) per year for an adviser to register in an additional county as provided in Section 12031.
A pest control adviser registration may be refused, revoked, or suspended by the agricultural commissioner. Cause for such refusal, revocation, or suspension may be for the same reasons prescribed in Section 12023 for the refusal, revocation, or suspension for a pest control adviser license.
ARTICLE 4. Agricultural Pest Control Advisory Committee [12041. - 12047.]
The Agricultural Pest Control Advisory Committee, which was established by Chapter 1276 of the Statutes of 1971, is hereby abolished.
There is in the department an Agricultural Pest Control Advisory Committee, appointed by the secretary or director, consisting of the following members:
One member representing agricultural pest control advisers.
One member representing agricultural pest control businesses.
One member representing pest control maintenance gardeners.
One member representing pest control aircraft pilots.
One member representing pesticide dealers.
One member representing commercial applicator certificate holders.
One member representing registrants, as defined in Section 12755.
One member representing the California Agricultural Commissioners and Sealers Association.
One member representing the University of California, Division of Agriculture and Natural Resources, who is nominated by the board of regents and who specializes in pest management.
One member representing the Board of Trustees of the California State University system.
One member representing the Board of Governors of the California Community College system.
One member representing producers, as defined in Section 56110.
One member representing the general public.
The public member shall be appointed to the committee by the director from nominees recommended by the committee. The public member shall represent the interests of the general public in all matters coming before the committee and shall have the same voting and other rights and immunities as other members of the committee.
It is hereby declared, as a matter of legislative determination, that members appointed to the Agricultural Pest Control Advisory Committee pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the committee, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
Except as provided in Section 12046, the term of office of the members of the committee is three years. Vacancies shall be filled for the unexpired term.
Initial appointments to the committee shall be made as follows:
Representatives for the public, the California Community College system, the State University system, and the pest control maintenance gardeners shall be appointed for one year.
Representatives for pest control aircraft pilots, commercial applicator certificate holders, pesticide dealers, registrants as defined in Section 12755, and the California Agricultural Commissioners and Sealers Association shall be appointed for two years.
Representatives for agricultural pest control advisers, agricultural pest control businesses, the University of California Extension Service, and producers shall be appointed for three years.
The committee shall be advisory to the director in all matters concerning the licensing, certification, and regulation of persons and firms licensed or certified pursuant to this division, and shall meet on the call of the director.
ARTICLE 5. Violations [12051. - 12054.]
It is unlawful for any person to act or offer to act as an agricultural pest control adviser without first having secured an agricultural pest control adviser’s license from the director in accordance with this chapter.
It is unlawful for any person to act or offer to act as an agricultural pest control adviser in any county wherein the adviser makes any recommendation for agricultural use without first registering with the county agricultural commissioner of that county.
It is unlawful to violate any provision of this chapter or any rule or regulation issued thereunder.
It shall be unlawful for any pest control adviser to make recommendations in a category for which he is not certified.
CHAPTER 7. Pest Control Dealer [12101. - 12121.]
ARTICLE 1. General Provisions [12101. - 12116.]
No person shall act in the capacity of a pest control dealer or shall engage or offer to engage in the business of, advertise as, or assume to act as a pest control dealer unless he or she is licensed as a pest control dealer pursuant to this chapter.
Each pest control dealer required to be licensed pursuant to Section 12101 shall have and maintain, at the principal office, and at each branch location, a designated agent qualified to actively supervise all operations conducted at that location. The designated agent shall be a person who holds a pest control dealer designated agent license, an agricultural pest control adviser license, a pest control aircraft pilot certificate, or a qualified applicator license issued pursuant to Chapter 8 (commencing with Section 12201).
The provisions of Section 12101 shall not apply to any federal, state, or county agency which provides pesticide materials for agricultural use.
An application for a license shall be in the form prescribed by the director. Each application shall state the name and address of the applicant specified on the application and any other information required by the director. The application shall be accompanied by a fee as prescribed by the director pursuant to Section 11502.5 to be paid into the State Treasury to the credit of the Department of Pesticide Regulation Fund. All licenses issued under this article shall expire on December 31 of the last year for which they are issued.
To the amount of the license fee shall be added an additional fee, in an amount prescribed by the director pursuant to Section 11502.5, for each branch salesyard, store, or sales location that is owned and operated by the applicant in this state or in other states when doing business from that out-of-state location regarding pesticides to be sold or delivered into or within this state.
The license for a pest control dealer may be renewed before its expiration through application in the form prescribed by the director, accompanied by a fee as prescribed by the director pursuant to Section 11502.5, for each license and for each branch salesyard, store, or sales location that does business in the state, or that does business in this state from an out-of-state location as specified in Section 12103. These fees shall be paid into the State Treasury to the credit of the Department of Pesticide Regulation Fund.
A penalty as prescribed by the director pursuant to Section 11502.5 shall be added to any fee that is not paid by the date of expiration.
Each applicant shall satisfy the director as to his or her knowledge of the laws and regulations governing the use and sale of pesticides, and his or her responsibility in carrying on the business of a pest control dealer.
The director shall issue to each applicant that satisfies the requirements of this article a license that entitles the applicant to conduct the business described in the application for the calendar years for which the license is issued, unless the license is sooner revoked or suspended.
Every licensed pest control dealer who changes his or her address or place of business shall immediately notify the director.
Each dealer shall be responsible for the acts of each person employed by him in the solicitation and sale of pesticides and all claims and recommendations for use of pesticides. The dealer’s license shall be subject to disciplinary action for any violation of this chapter whether committed by the dealer, or by any officer, agent or employee.
The director may adopt such rules and regulations as are reasonably necessary to effectuate the purposes of this chapter.
The director may, after a hearing, refuse, revoke, or suspend a pest control dealer license for violation of the provisions of this division or Division 7 (commencing with Section 12501) relating to pesticides or the rules and regulations adopted pursuant to those provisions. The hearing shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
Each licensed pest control dealer, and each person who is required to be licensed as a pest control dealer pursuant to Section 12101, shall maintain at their principal place of business the records of its purchases, sales, and distributions of pesticides into or within this state, including those of its branch locations, for four years. Each dealer shall also maintain the pesticide broker or pest control dealer license number of any pesticide broker or pest control dealer from whom the dealer purchased pesticides registered by the director and labeled for agricultural use. The records shall be available for audit by the director.
Each licensed pest control dealer, and each person who is required to be licensed as a pest control dealer pursuant to Section 12101, shall report quarterly to the director the total dollars of sales and total pounds or gallons sold into or within this state of each pesticide subject to Sections 12841 and 12841.1. The quarterly report shall be in the form prescribed by the director and shall include information from the dealer’s licensed branch locations, if any, and any other information specified on the form or required by the director. The report shall include a certification, under penalty of perjury, that the information contained in the report is true and correct. The report shall accompany payment of assessments required by Sections 12841 and 12841.1.
Any licensed pest control dealer, or any person who is required to be licensed as a pest control dealer pursuant to Section 12101, who purchases pesticide products that are registered by the director pursuant to Chapter 2 (commencing with Section 12751) of Division 7 and labeled for agricultural use from a person other than a registrant or a licensed pest control dealer, shall report in writing the name, address, telephone number, and pesticide broker license number issued by the director, if any, of those persons to the director annually, by December 1 each year.
ARTICLE 2. Violations [12121. - 12121.]
It is unlawful for any person who is subject to this chapter to do any of the following:
Fail to demonstrate to the director qualifications to act in the capacity of a pest control dealer.
Fail to notify the director of any transfer or change of address.
Fail to comply with the provisions of this division or Division 7 (commencing with Section 12501) relating to pesticides or the rules and regulations adopted pursuant to those provisions.
Make false or fraudulent statements, or misrepresent or fail to disclose any material fact in making application for a license or renewal of license.
Make any false or misleading statements or promises of a character likely to influence, induce, or deceive, or publish, or cause to be published, or distributed or displayed any false or misleading literature or advertisement, concerning any pesticide or method of pest control.
CHAPTER 8. Qualified Applicator License [12201. - 12206.]
An application for a qualified applicator license shall be in a form prescribed by the director. Each application shall state the name and address of the applicant specified on the application and any other information required by the director. The application shall be accompanied by a fee as prescribed by the director pursuant to Section 11502.5.
It is unlawful for any person to act in a supervisory capacity or position for a pest control business, except a business licensed only in the maintenance gardener category pursuant to Section 11705, unless the person has a qualified applicator license.
All licenses issued pursuant to this chapter expire on December 31 of the last year for which they are issued. Licenses may be renewed before their expiration through application in the form prescribed by the director and upon payment of a fee as prescribed by the director pursuant to Section 11502.5.
A penalty as prescribed by the director pursuant to Section 11502.5 shall be assessed against any applicant who applies for renewal after the expiration date.
Applicants shall be examined on the requirements of laws and regulations concerning pesticide use and shall elect to be examined for licensing in one or more of the categories established by the director.
The director may designate subcategories within the categories established pursuant to Section 12203, as determined to be necessary.
The director shall issue to each applicant who satisfies the requirements of this chapter a qualified applicator license.
A qualified applicator license may be refused, revoked, or suspended by the director, after a hearing, for any of the following:
Failure to comply with this division or Division 7 (commencing with Section 12501) or regulations adopted pursuant to these divisions.
Making any false or fraudulent record or report.
Failure to ensure that the responsibilities of the pest control business specified in regulations are carried out.
Failure to supervise operations, activities, and employees of the pest control business in a manner that ensures compliance with this division and Division 7 (commencing with Section 12501) pertaining to pesticides.
Notwithstanding Section 12205, if the director finds on the basis of affidavits submitted to the director by the enforcement personnel specified in Section 11501.5, or by injured parties, that continuance of the license endangers public welfare or safety, the director may, pending a hearing, suspend or place conditions on the license of any qualified applicator. The director may terminate the suspension of, or any condition placed upon, a license upon the taking of corrective action by the qualified applicator that the director determines satisfactory to assure compliance with statutes and regulations. In that event, the matter may proceed to hearing as though the license had not been suspended or the conditions placed upon it.
CHAPTER 9. Pesticide Dealer Designated Agent [12251. - 12258.]
No person shall act as a designated agent of a pest control dealer who is licensed pursuant to Chapter 7 (commencing with Section 12101), unless that person is licensed as a pest control dealer designated agent pursuant to this article.
An application for a pest control dealer designated agent license shall be in the form prescribed by the director. Each application shall state the name and address of the applicant specified on the application and any other information required by the director. The application shall be accompanied by a fee as prescribed by the director pursuant to Section 11502.5.
All licenses issued pursuant to this chapter shall expire on December 31 of the last year for which they are issued.
Licenses may be renewed before their expiration through application in the form prescribed by the director and upon payment of a fee as prescribed by the director pursuant to Section 11502.5. A penalty as prescribed by the director pursuant to Section 11502.5 shall be added to any license renewal fee that is not paid by the date of expiration.
Before initial license is issued, the applicant shall pass an examination to demonstrate to the director the applicant’s knowledge of the laws and regulations governing the use and sale of pesticides and the responsibility in carrying on the business of a pest control dealer.
The director shall issue to each applicant who satisfies the requirements of this chapter a pest control dealer designated agent license.
Every licensed pest control dealer designated agent who changes his or her address shall immediately notify the director of the new address.
The director may adopt rules and regulations that are reasonably necessary to effectuate this chapter.
The director may, after a hearing, refuse, revoke, or suspend a pest control dealer designated agent license for violation of this chapter or Division 7 (commencing with Section 12501). The hearing shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of the Government Code.
It is unlawful for any person who is subject to this chapter to do any of the following:
Fail to notify the director of any change of address.
Fail to comply with the provisions of this division or Division 7 (commencing with Section 12501) relating to pesticides or the rules and regulations adopted pursuant to those provisions.
Make false or fraudulent statements, or misrepresent or fail to disclose any material fact in making an application for a license or renewal of a license.
Make any false or misleading statements in any written record or report relating to pesticides or involving the pest control dealer business where that person is, or was, employed.
Fail to supervise employees actively in the use and sale of pesticides and exercise responsibility in carrying on the business of a pest control dealer.
CHAPTER 10. Pesticide Brokers [12400. - 12408.]
It is unlawful for any person, other than the registrant or pest control dealer licensed pursuant to Section 12107, to sell, offer to sell, or distribute into this state, or bring into the state for sale, any pesticide products that have been registered by the director unless the person is licensed by the director as a pesticide broker.
An application for a pesticide broker license, or renewal of a license, shall be in the form prescribed by the director. Each application for a license, or license renewal, shall state the name and address of the applicant, and any other information specified on the application or required by the director.
The director shall issue to each applicant that satisfies the requirements of this chapter a pesticide broker license that entitles the applicant to conduct the business described in the application for the calendar years for which the license is issued unless the license is revoked or suspended in the interim.
All licenses issued pursuant to this chapter may be renewed before their expiration through application to the director.
Each licensed pesticide broker that changes the address of its place of business, or that of a branch location, shall immediately provide the director written notification of the change.
Each licensed pesticide broker, or person who is required to be licensed as a pesticide broker pursuant to Section 12400, shall maintain at its principal place of business the records of its purchases subject to mill assessments, sales, and distributions of pesticides into or within this state, including those of its branch locations, for four years. These records shall include copies of invoices showing payment of the mill assessment. The records shall be available for audit by the director.
Each licensed pesticide broker, or person who is required to be licensed as a pesticide broker pursuant to Section 12400, shall report quarterly to the director the total dollars of sales and total pounds or gallons sold into or within this state of each pesticide sold and subject to Sections 12841 and 12841.1. The quarterly report shall be in the form prescribed by the director and shall include information from the broker’s licensed branch locations, if any, and any other information specified on the form or required by the director. The report shall include a certification, under penalty of perjury, that the information contained in the report is true and correct. The report shall accompany payment of assessments required by Sections 12841 and 12841.1.
Pesticide retailers shall maintain records that show the names and contact information of their suppliers of pesticide in the current year. These records shall be available for audit by the director.
It is unlawful for any person required to be licensed as a pesticide broker pursuant to this chapter to make any false or fraudulent statements or misrepresent or fail to disclose any material fact in making application for a license or renewal of a license or in any reports submitted to the director, or to make any false or misleading statements concerning any products specified in Section 12847 that the person sells or distributes.
The director, after a hearing, may refuse, revoke, or suspend a pesticide broker license for any violation of this division or Division 7 (commencing with Section 12500) or any regulations adopted pursuant to this division.
DIVISION 7. AGRICULTURAL CHEMICALS, LIVESTOCK REMEDIES, AND COMMERCIAL FEEDS [12500. - 15340.]
CHAPTER 1. Definitions [12500. - 12500.6.]
As used in Chapter 1.5 (commencing with Section 12501), Chapter 2 (commencing with Section 12751) except Article 2.5 (commencing with Section 12786), Chapter 3 (commencing with Section 14001), Chapter 3.5 (commencing with Section 14101), Chapter 3.6 (commencing with Section 14151) and Chapter 7 (commencing with Section 15201), “department” means the Department of Pesticide Regulation. As used in Article 2.5 (commencing with Section 12786) of Chapter 2, Chapter 4 (commencing with Section 14200), Chapter 5 (commencing with Section 14501), and Chapter 6 (commencing with Section 14901), “department” means the Department of Food and Agriculture.
“Director” means the Director of Pesticide Regulation.
“Secretary” means the Secretary of Food and Agriculture.
CHAPTER 1.5. Produce Carrying Pesticide Residue [12501. - 12674.]
ARTICLE 1. Definitions [12501. - 12505.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Food” means any article which is used for food or drink for man or any other animal, or for a component of any such article.
“Pesticide chemical” means any substance that is used in the production, storage, or transportation of produce that is a pesticide as defined in Section 12753.
“Produce” means any food in its raw or natural state which is in such form as to indicate that it is intended for consumer use with or without any or further processing.
“Pesticide residue” means any pesticide chemical which is added to produce.
ARTICLE 2. General Provisions [12531. - 12536.]
The director may adopt such regulations as are reasonably necessary to carry out this chapter.
The director shall continuously interpret the results of the residue monitoring program in order to assess its general effectiveness at preventing public exposure to illegal pesticide residues.
The director shall release to the public, on an annual basis, comprehensive summaries of the results of the pesticide residue monitoring program. The director shall disclose information regarding the disposition of products found to contain illegal pesticide residue levels.
The director shall identify in his or her reports the specific county where unprocessed agricultural foods have been discovered to contain illegal pesticide residue levels, the specific commodity, and the county where the commodity was produced.
The director shall file copies of all data sheets for over tolerances with the commissioner for the county where the unprocessed agricultural foods have been grown.
The director shall include in the reports, in addition to the specific commodity affected, the pesticide identified for each illegal residue found.
Nothing in this chapter repeals or amends any of the provisions of Part 5 (commencing with Section 109875) of Division 104 of the Health and Safety Code.
Pursuant to this chapter, the director shall conduct a pesticide residue monitoring program for produce destined for processing to determine which pesticides are most likely to leave a residue and to what extent it is necessary to monitor the produce.
The results of the program shall be made available to the State Director of Health Services to provide accurate information to better focus sampling priorities.
Commencing in 1990, the department shall substantially expand and maintain its focused pesticide residue monitoring program beyond the 1988 level. The focused monitoring program shall be prioritized to consider pesticides of greatest health concern and contribution to dietary exposure, and for various subpopulations which may be uniquely sensitive to pesticide residues, with special emphasis on infants and children.
The department shall consider, but not be limited to, the following lists of pesticides in establishing priorities for monitoring:
Pesticides identified by the federal Environmental Protection Agency as known, possible, or probable human carcinogens which are registered for use on food crops.
Pesticides listed as high priority for risk assessment as a result of the evaluation process of the Birth Defect Prevention Act of 1984.
Pesticides listed as known to cause cancer or reproductive toxicity pursuant to Section 25249.9 of the Health and Safety Code.
Class I and II pesticides on the United States Food and Drug Administrations’s Surveillance Index.
The director, by regulation, shall establish a pest management advisory committee, specifying, as appropriate, the scope and purpose of its advisory role, membership requirements, and operating procedures. The director, or his or her designee, shall serve as chairperson of the committee and the secretary, or his or her designee, shall serve as vice chairperson of the committee. At a minimum, the committee shall assist the department in identifying, facilitating, and promoting environmentally sound pest management practices and pest management systems.
Funds in the Department of Pesticide Regulation Fund may be expended, upon appropriation, for pest management grants, and upon the joint decision of the chairperson and vice chairperson, to carry out the recommendations of the pest management advisory committee.
ARTICLE 3. Permissible Tolerances [12561. - 12565.]
The director by regulation may establish permissible tolerances for any pesticide chemical in or on produce if he or she finds each of the following:
The pesticide chemical is useful for the production and marketing of the produce.
The presence of the pesticide chemical as pesticide residue in quantities within the tolerances so established is not deleterious to the health of man or animals.
The director may exempt any pesticide chemical from the requirement of a tolerance if he finds that the pesticide chemical may safely be used without a tolerance.
The director may establish the tolerance for any pesticide chemical on produce at zero if he finds that a greater tolerance is not justified.
If a tolerance for a pesticide chemical in or on produce is established pursuant to any law of the United States, the director may review the tolerance, and if he finds that it is in accordance with the standards and provisions of this chapter, he may establish a like tolerance pursuant to this chapter.
ARTICLE 4. Inspection [12581. - 12582.]
The director may inspect and take samples of any produce grown, processed, packed, stored, shipped, transported, delivered for shipment, or sold.
If the director finds or suspects that a sample taken or inspected pursuant to subdivision (a) carries pesticide residue in excess of the permissible tolerance, the director may request sales records, purchase records, distribution records, or any other record related to that produce. The records shall be provided to the director within 48 hours of the request.
The director shall immediately notify the State Director of Health Services by telephone, with immediate written confirmation, whenever a lot of produce destined for processing is found to be in violation of this chapter.
ARTICLE 4.5. Commercial Laboratories [12591. - 12595.]
The director may accredit a commercial laboratory to test produce or environmental samples, including air, water, soil, and plant or animal tissue for regulatory pesticide residue purposes if the director finds all of the following conditions:
That the department laboratories cannot handle required testing in a timely manner or that the use of a commercial laboratory is more cost-effective to the department or a segment of agriculture.
That the laboratory agrees to and participates in a quality control oversight program as specified by the director.
That the laboratory’s control and analytical protocols meet criteria established by the director.
That, as part of the quality control oversight program, the director may conduct unannounced onsite inspections of the laboratory during normal business hours.
The director may charge a fee for accreditation and quality control oversight in an amount sufficient to cover the reasonable costs of carrying out these programs.
The director may refuse to accredit, or may suspend any accreditation, if the applicant or the accredited laboratory, as the case may be, does any of the following:
Does not meet, or no longer meets, the requirements stated in Section 12591.
Fails to perform in accordance with the performance standards set forth in the quality control oversight program.
Analysis data developed by an accredited laboratory shall be subject to confirmation by a laboratory of the department prior to an official regulatory action of the director.
In the event of a dispute of the findings of a chemical analysis between or among two or more accredited laboratories or between an accredited laboratory and a laboratory of the department, an appeal analysis may be requested by letter, telegram, or other writing to the director. The sample to be analyzed in the appeal analysis shall be submitted to the headquarters laboratory of the department at Sacramento. The cost of the appeal analysis, including any sampling or shipping required, shall be at the expense of the requesting party. The findings from the appeal analysis are binding on all parties.
ARTICLE 5. Seizure [12601. - 12615.]
The director may seize and hold any lot of produce, or any unharvested produce that is within one week of being in a harvestable condition, which carries or is suspected of carrying pesticide residue or other added deleterious ingredients in violation of this chapter or any regulation adopted pursuant to this chapter.
If the director seizes any lot of produce, he shall issue to the owner or bailee a hold order or notice. He may affix to the lot a warning tag which states that the lot is so held.
Any lot of produce for which a hold order or notice is issued shall be held by the owner or bailee of the produce and shall not be disturbed or moved from the place where it is, except under the specific direction of the director, pending final disposition pursuant to this chapter.
This does not prevent the owner or bailee from inspecting any produce so seized, nor from taking therefrom, in the presence of a person designated by the director, a reasonable sample for evidence.
Any produce which is seized and held pursuant to this article, unless previously analyzed by the director, shall be sampled and analyzed within 24 hours after the seizure for the purpose of determining the amount of pesticide residue on it. The owner or bailee of the produce shall be immediately notified in person or by telegram by the director that the analysis of the sample shows that the produce does or does not carry pesticide residue or other added deleterious ingredient in violation of this chapter or any regulation adopted pursuant to this chapter.
Upon the demand of the owner or bailee at or prior to the time of the sampling by the director, the sample which is drawn shall be divided into two approximately equal parts, one part of which shall be sealed and left with the owner or bailee and one part taken for analysis by the director.
If the seized and held lot, as determined by the director’s chemical analysis, does not carry pesticide residue in excess of any maximum which is provided by this chapter or in excess of a permissible tolerance, the director shall forthwith release the seized and held lot from the seizure and remove the hold order or tag.
If the seized and held lot of produce is found to carry pesticide residue in excess of any maximum which is provided by this chapter or in excess of a permissible tolerance, the director shall, upon request of the owner, permit the lot of produce to be reconditioned or disposed of for byproducts purposes which may lawfully contain the pesticide residue found.
Upon demand of the owner or bailee for permission to remove the produce for reconditioning or use for byproducts, the director shall release the produce to the custody of the agricultural commissioner of any county which is designated by the owner or bailee if the commissioner advises the director that facilities for reconditioning the produce or for converting it into byproducts are available in the county and that the commissioner will supervise the reconditioning or conversion into byproducts of the lot if it is released.
Upon demand of the owner or person in rightful possession of the produce for permission to remove the produce destined for processing, the director shall release the produce to the custody of the State Director of Health Services.
The produce after reconditioning is subject to all the provisions of this chapter pending its final release by the director pursuant to Section 12606.
If the lot of produce which is seized and held is found to carry excess pesticide residue, the owner or bailee of the lot may appeal the result of the examination to the director by letter, telegram, or other writing, within three days of the notice to the owner or bailee which is provided for in Section 12604.
Upon receipt of an appeal by the owner or bailee, the director shall, after reasonable notice to the owner, if known, or, if not known, to the bailee, take a further sample and submit it under an individual lot number to the headquarters laboratory of the department at Sacramento for an appeal chemical analysis.
The director shall permit the owner to be present in person or by his representative at the taking of the sample to be submitted for the appeal chemical analysis. The cost of the sampling and analysis shall be at the expense of the owner or bailee. The findings from the appeal chemical analysis are binding on both parties.
After seizure by the director pursuant to this chapter of any lot of produce upon which an appeal analysis is to be made, the director upon request shall permit the owner or bailee to move the produce to a specified commercial cold storage warehouse which is suited for preserving it against deterioration. The storage is subject, however, to the terms of any hold order or notice issued pursuant to this article.
If the appeal analysis shows that the lot of produce does not carry pesticide residue in excess of any maximum which is provided by this chapter, or in excess of a permissible tolerance, the director shall forthwith release the lot from the seizure and remove the hold order or tag.
ARTICLE 6. Abatement as Public Nuisance [12641. - 12649.]
As used in this article, “nuisance” means the public nuisance which is specified in Section 12642.
Any lot of produce which is found to carry pesticide residue in excess of any maximum which is provided in this chapter, or in excess of a permissible tolerance, together with its containers, is a public nuisance, and if not disposed of pursuant to Article 5 (commencing with Section 12601) of this chapter, is subject to disposal on complaint of the director to a court of competent jurisdiction.
The district attorney of the county in which the nuisance is found, at the request of the director, shall maintain, in the name of the people of the State of California, a civil action to abate and prevent the nuisance.
Upon judgment and by order of the court, the nuisance shall be condemned and destroyed in the manner directed by the court, or denatured or otherwise processed, or released upon such conditions as the court in its discretion may impose to insure that the nuisance shall be abated.
If the owner fails to comply with the order of the court within the time which is specified in the order, the court may order the disposal or sale of the produce or containers which are a nuisance, under the terms and conditions as the court may prescribe, by the director, or by the sheriff or marshal.
If the court orders the sale of any of the produce or containers which can be salvaged, the costs of disposal shall be deducted from the proceeds of sale and the balance paid into court for the owner.
A proceeding pursuant to this article where the value of the property seized amounts to thirty-five thousand dollars ($35,000) or less is a limited civil case.
Notwithstanding any other provision of this code, a site within this state that has been treated with, or a plant, crop, or commodity, whether grown in this state or elsewhere, that has been treated with, or grown on a site treated with, a pesticide that is not registered for use on that plant, crop, commodity, or site is a public nuisance and may be seized by order of the director.
The unlawful treatment described in subdivision (a) creates, in favor of the director, rebuttable presumptions affecting the burden of producing evidence pursuant to Section 604 of the Evidence Code as follows:
That the treated plant, crop, commodity, or site, or any plant, crop, or commodity grown on the treated site, presents a hazard to human health or the environment.
That the pesticide was used to gain an unfair business advantage for the owner or person in possession or control of the plant, crop, commodity, or site.
The director shall provide notice to the owner or person in possession or control of the plant, crop, commodity, or site prior to seizure, unless the director has reason to believe that prior notice would result in the loss of control by the director of that plant, crop, commodity, or site, in which case notice shall be given as soon as practical, but in any event within five days of the seizure. The notice shall specify the grounds for the seizure and provide that the owner or person in possession or control, within 15 days of receipt of the notice, may request a hearing before the director to contest the seizure or rebut the presumptions specified in subdivision (b). The hearing shall be held not later than five days from the date the request of the owner or person is received by the director. The director shall render a written decision within five days of the hearing or within five days of the expiration of the time to request a hearing if no hearing was requested. The decision shall either release the plant, crop, commodity, or site from seizure or make any of the following orders:
Prohibition of the use or planting of the site, which may be for the period of any plant back time specified for the pesticide used on the site.
Any other appropriate action or measure.
Review of the decision of the director may be sought by the owner or person in possession or control of the plant, crop, commodity, or site pursuant to Section 1094.5 of the Code of Civil Procedure.
It is unlawful for the owner of a plant, crop, or commodity to knowingly treat or apply to that plant, crop, or commodity, or cause that plant, crop, or commodity to be treated or applied, with a pesticide that was stolen or otherwise acquired by illegal means.
The owner of a crop, who is found by a court to have violated this section, in addition to any other penalties imposed by a court, shall be subject to a fine of ten thousand dollars ($10,000) plus an amount equal to one-half the value of the crop on which the illegally obtained pesticide was applied.
For purposes of this section, “one-half the value of the crop” means one-half the market value of the crop that was actually treated with the illegally obtained pesticide as determined by the actual sale of the crop or, if the crop is not actually sold, as determined by the director based on an average of the typical market value for such a crop sold in the normal channels of trade in the year in which the crop was produced and in the preceding two years.
Moneys received as a result of fines and penalties imposed pursuant to this section shall be divided and distributed as follows:
Fifty percent to the county in which the case was brought to court or in which a court-approved settlement of the matter was negotiated.
Twenty-five percent to the office of the county agricultural commissioner.
Twenty-five percent to the department.
Any person who is licensed pursuant to this code and who is found by a court to have knowingly sold, applied, or provided pesticides that were stolen or otherwise obtained illegally, in addition to any other penalty that may be imposed, shall have his or her license or licenses suspended for a minimum of 18 months.
The director may bring an action to enjoin the violation or the threatened violation of any order made pursuant to Section 12648 in the superior court in the county in which the order was issued or the violation has occurred or is threatening to occur. The court may enjoin the violation or threatened violation upon this showing and without evidence of irreparable injury. The court may compel specific performance of any acts or course of conduct necessary to implement any order made pursuant to Section 12648.
ARTICLE 7. Violations [12671. - 12674.]
It is unlawful for any person to pack, ship, or sell any produce that carries pesticide residue in excess of the permissible tolerance which is established by the director pursuant to this chapter.
The director or commissioner may prohibit the harvest of any produce or may seize and hold any lot of produce when a preharvest interval specified in the registered labeling of a pesticide applied to the produce has not been complied with. Except as provided in Section 12673, this harvest prohibition shall not extend beyond the expiration of the preharvest interval. Lots of produce so seized shall be held until the preharvest interval has expired and the director has determined that any pesticide residue is within a permissible tolerance.
The director or commissioner may prohibit the harvest of any produce that carries pesticide residue in excess of a permissible tolerance which is established by the director pursuant to this chapter.
It is unlawful for any person to harvest, pack, ship, sell, transport, destroy, or dispose of any plant, crop, or commodity which has been seized pursuant to Section 12648, except in accordance with the decision of the director issued pursuant to Section 12648, unless the person otherwise has received written permission from the director.
CHAPTER 2. Pesticides [12751. - 13192.]
ARTICLE 1. Definitions [12751. - 12759.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Defoliating” includes killing or artifically accelerating the drying of plant tissues, with or without causing abscission.
“Pesticide” includes any of the following:
Any spray adjuvant.
Any substance, or mixture of substances which is intended to be used for defoliating plants, regulating plant growth, or for preventing, destroying, repelling, or mitigating any pest, as defined in Section 12754.5, which may infest or be detrimental to vegetation, man, animals, or households, or be present in any agricultural or nonagricultural environment whatsoever.
“Insect” means any animal within the class of animals which are known as “Insecta” or any similar animal such as a centipede, spider, mite, tick, or louse.
“Pest” means any of the following that is, or is liable to become, dangerous or detrimental to the agricultural or nonagricultural environment of the state:
Any insect, predatory animal, rodent, nematode, or weed.
Any form of terrestrial, aquatic, or aerial plant or animal, virus, fungus, bacteria, or other microorganism (except viruses, fungi, bacteria, or other microorganisms on or in living man or other living animals).
Anything that the director, by regulation, declares to be a pest.
“Registrant” means a person that has registered a pesticide and has obtained a certificate of registration from the department.
“Regulating plant growth” means the use of any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of plants or the produce thereof.
However, it shall not include the use of substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments.
Also, “regulating plant growth” shall not be required to include at all the use of any of such of those nutriment mixtures or soil amendments as are commonly known as vitamin-hormone horticultural products, intended for improvement, maintenance, survival, health, and propagation of plants and are not for pest destruction and are nontoxic, nonpoisonous in the undiluted packaged concentration.
“Rodent” means all members of the order Rodentia and all rabbits and hares.
“Service container” means any container, other than the original labeled container of a registered pesticide provided by the registrant, that is utilized to hold, store, or transport the pesticide or the use-dilution of the pesticide.
“Spray adjuvant” means any wetting agent, spreading agent, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent, with or without toxic properties of its own, which is intended to be used with another pesticide as an aid to the application or effect of the other pesticide, and sold in a package that is separate from that of the pesticide other than a spray adjuvant with which it is to be used.
“Use-dilution” means a dilution specified on the label or labeling that produces the concentration of the pesticide for a particular purpose or effect.
“Weed” means any plant which grows where not wanted.
ARTICLE 2. General Provisions [12781. - 12784.]
The director may adopt regulations which are reasonably necessary to carry out this chapter.
A copy of the regulations which are adopted by the director pursuant to this chapter shall be mailed to each registrant promptly upon promulgation of the regulation. The failure to receive such copy is no defense to a violation of any regulation.
Any person who is charged with the enforcement or execution of this chapter shall not be directly or indirectly interested in the sale, manufacture, or distribution of any pesticide.
Any money that is received by the director pursuant to this chapter shall be paid into the State Treasury to the credit of the Department of Pesticide Regulation Fund. Registration fees and assessments received pursuant to this chapter shall be expended only for the administration and enforcement of Chapter 2 (commencing with Section 12751), Chapter 3 (commencing with Section 14001), and Chapter 3.5 (commencing with Section 14101) of Division 7.
ARTICLE 2.5. Agricultural Pest Control Research [12786. - 12798.6.]
The Legislature hereby finds and declares all of the following:
The continued viability of the agricultural economy is of paramount importance to the people of California.
The development of alternatives to existing pesticides available for the control of pests is prudent, and the development of alternatives to pesticides is important for the protection of the public health and safety.
The ability of the state to control, detect, exclude, and eradicate pest infestations is necessary to continue the preeminent position of this state as the leading farm state and is essential for the continuing supply of foodstuffs.
Proposals for research consistent with the purposes of this article may be submitted to the committee by any person, organization, institution, or governmental agency.
Members of the research and screening committees shall serve without compensation, but shall be reimbursed for all necessary expenses incurred in the performance of their duties and approved by the secretary.
To the extent that funding is available, the secretary shall maintain a program to develop new methods and modify existing methods for testing produce for the presence of pesticide residues. The secretary may consult with representatives of the federal Food and Drug Administration, the State Department of Health Services, the Department of Pesticide Regulation, public and private institutions of higher education, other laboratories, or any other entity he or she deems appropriate. The secretary shall focus his or her review on analytical methods for pesticide residues that are not detectable on existing multiple-residue screens, and on pesticide residue detection methods that the secretary deems are difficult to accurately identify and quantify due to time, equipment, or expense.
The department shall establish a competitive grants program to make funds available to qualified public and private entities to conduct pest management research projects. All of the research related to pest management funded by the department shall be administered pursuant to this program.
Research conducted pursuant to this section shall have the further development of alternative pest management practices and methods and the further development of pest exclusion detection and eradication methods as priorities. Before making research awards, the department shall assess existing research activities and developments in integrated pest management, alternatives to pesticides, and other alternative pest management practices and methods, including, but not limited to, cultural, biological, and biotechnological research.
The secretary shall establish a Pest Management Research Committee, which shall award all funds under the competitive grants program.
The primary objective of the committee is the further development of pest prevention activities and alternative pest management practices, techniques, and methods that exclude serious pests, as determined by the committee, detect and quickly eliminate small infestations of foreign pests, and reduce pesticide use, minimize or eliminate pesticide residues, or result in the use of safer pesticides. In achieving that objective, the committee shall encourage the development and use of biological controls, integrated pest management, biotechnology, cultural, pest prevention, and other alternative pest management methods that are environmentally sound and economically viable.
The committee shall consist of the following 12 persons, who shall serve at the pleasure of the secretary:
The Secretary of Food and Agriculture or their designee, who shall serve as chairperson.
The President of the University of California or their designee.
The Chancellor of the California State University or their designee.
Two members who represent the agricultural community, one of whom is an experienced organic farmer and one of whom is knowledgeable and experienced in alternative pest management techniques.
Two members who represent pest management researchers, one of whom represents California’s public and private colleges and universities and one of whom represents California’s independent research community, both of whom are knowledgeable in pest prevention, control, eradication, and pest management.
One member who represents public interest organizations, qualified in environmental or public health, or both, and knowledgeable in alternative pest management techniques.
One member who represents the Office of Environmental Health Hazard Assessment, with experience in public health or toxicology.
One member who represents county agricultural commissioners, knowledgeable and experienced in alternative pest management techniques and pest prevention, control, and eradication.
One member who represents the Department of Pesticide Regulation, with experience in pest management systems.
One member who represents the State Department of Public Health, with experience in public health.
The committee shall award funds based upon a competitive application process that meets the eligibility of fulfilling, and has the ability to fulfill, the objectives of this section.
The approval of research proposals shall be made by a majority vote of the membership of the committee.
For any proposals funded pursuant to this section, the department shall require reasonable accountability, including performance standards, periodic reports, deadlines, and payments conditioned on compliance with performance standards and deadlines.
Funding for second and subsequent years of a multiyear award shall be contingent upon satisfactory completion by the grantee of the prior year grant objectives or deliverables, as determined by the committee.
In order to facilitate the use of pest management practices and methods developed pursuant to this section, the secretary shall cooperate with qualified public and private entities to provide outreach consultation, information dissemination, and educational services to the agricultural community and other interested parties.
The secretary shall establish a Pest Science and Technology Screening Committee, which shall function as a scientific peer review committee on exotic pest research proposals submitted pursuant to Section 12798. The screening committee shall conduct and provide a thorough evaluation of the scientific merit, environmental soundness, and economic viability of each proposal. The committee shall meet at the request of the secretary and after reviewing all current proposals shall make recommendations to the Pest Management Research Committee established pursuant to Section 12798 as to which proposals should be funded. The committee shall consist of the following members:
Five members who represent California’s public and private colleges and universities or private research community, each of whom possesses a degree in entomology, plant pathology, or environmental studies, and who are knowledgeable, technically qualified, and experienced in exotic pest biology and pest exclusion, detection, and eradication research.
One member who represents the department, with experience in pest prevention.
One member who represents the Office of Environmental Health Hazard Assessment, with experience in public health or toxicology.
One member who represents the State Department of Health Services, with experience in public health.
ARTICLE 3. Exemptions [12801. - 12804.]
This chapter does not apply to any preparation, drug, or chemical which is intended to be used or sold solely for medicinal or cosmetic use by humans or to commercial feed as defined in Section 14925.
A person may mix or dilute any registered pesticide in accordance with its registered labeling for his or her own use or for use in his or her own business without having become a registrant pursuant to this chapter.
The director, by regulation, may exempt from all or part of the requirements of this division a pesticide exempted pursuant to Section 25(b) of the federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136w (b)) as a pesticide that is determined to be of a character unnecessary to be subject to that act, if both of the following apply:
The director individually evaluates each listed substance exempted pursuant to the federal authority and concurs in the decision by the United States Environmental Protection Agency Administrator to exempt that substance.
The director excludes from the exempting regulation those specific requirements of this division that may otherwise be applicable that are necessary to protect the public health or the environment. Notwithstanding any other provision of law, the director shall retain authority to regulate any substance exempted pursuant to this section whether registered or not.
The director, by regulation, may exempt from all or part of the requirements of this division a liquid chemical sterilant product for use on a critical or semi-critical medical device that is exempt from the federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.) pursuant to subdivision (u) of Section 2 of that act (7 U.S.C. Sec. 136 (u)), and that has obtained clearance from the federal Food and Drug Administration under subdivision (k) of Section 510 of the federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 306 (k)) if both of the following apply:
The product does not include ethylene oxide as an active ingredient.
The director excludes from the exempting regulation requirements to report pesticide-related illnesses, to collect information and data concerning pesticide-related illnesses, and to transmit that information and data to the appropriate agency or entity for inspection or followup, and other specific requirements of this division that may otherwise be applicable and that are necessary to protect the public health or the environment. Notwithstanding any other provision of law, the director shall retain the authority to regulate any substance exempted pursuant to this section whether registered or not.
On or before July 1, 1998, the director may adopt the regulations authorized under subdivision (a) as emergency regulations. In adopting those regulations as emergency regulations, the director is not required to make the finding required by subdivision (b) of Section 11346.1 of the Government Code.
ARTICLE 4. Registration [12811. - 12840.]
Every manufacturer of, importer of, or dealer in any pesticide, except a person that sells any raw material to a manufacturer of any pesticide or a dealer or agent that sells any pesticide that has been registered by the manufacturer or wholesaler, shall obtain a certificate of registration from the department before the pesticide is offered for sale.
On or before May 1, 2025, and annually thereafter, until May 2, 2028, the department shall annually report the average processing times to review and evaluate, and issue final decisions on, applications to register new pesticide products or amend existing pesticide product registrations for the prior calendar year, and post this information on its internet website. The report shall include the number of days, on average, that it took to complete an application and the number of days, on average, that an application spent in intake and in each stage of scientific evaluation.
On or before May 1, 2029, and annually thereafter, the department shall report the average processing times for the applications described in subdivision (a) for the prior calendar year and post this information on its internet website. This information shall include all of the following:
The number of applications by registration category that were completed within the timeframes specified pursuant to subdivision (a) of Section 12839. This number shall be reported based on nonagricultural, agricultural, and dual use products.
The number of applications that exceeded the timeframes specified in each of subdivision (a), (d), or (e) of Section 12839. This number shall be reported for each respective subdivision based on nonagricultural, agricultural, and dual use products.
The number of days applications spent, on average, in intake and at each stage of scientific evaluation.
The director may rely on any evaluations of previously submitted data to determine whether to accept an application for registration of a new pesticide product, an amendment to the registration of a registered pesticide product, or to maintain the registration of a registered pesticide product regardless of the ownership of the data previously evaluated, if the previously submitted data fulfills current data requirements. However, effective January 1, 2006, applicants will be subject to the following provisions:
If an applicant for registration of a pesticide product, or an amendment to the registration of a registered pesticide product, including a registrant that desires to maintain its registration of a registered pesticide product after the director makes a formal request for additional data pursuant to reevaluation or Section 12824, does not submit its own data to fulfill a current data requirement imposed by the director and relies on data that the applicant does not own or have written permission to rely on that was submitted to the director by another entity after January 1, 1991, and meets the three criteria set forth in this subdivision, the applicant shall either: (A) obtain written permission from the data owner to rely on the data; (B) formulate or obtain its product from a source that has data authorization from the data owner, or a source that complies with subdivision (c); or (C) if the data meets the criteria set forth in subparagraphs (A), (B), and (C) of paragraph (2), irrevocably offer to pay the data owner a share of the cost of producing the data and comply with subdivision (d). The director may rely on data submitted before January 1, 1991, or that does not meet the criteria set forth in subparagraphs (A), (B), and (C) of paragraph (2) to support any application or comply with any formal reevaluation request for additional data, without permission from the data owner. An offer to pay, and a payment pursuant to that offer, shall only be required as to data not submitted by the applicant that meets the criteria set forth in subparagraphs (A), (B), and (C) of paragraph (2).
To be eligible for cost sharing pursuant to this subdivision, the data shall meet all of the following requirements:
The data was required by the director in order to obtain, amend, or maintain the data owner’s California registration or registrations for uses covered by the application, amendment, or formal request for additional data pursuant to reevaluation or Section 12824.
There has been no arbitration award, data compensation, or data cost-sharing agreement pertaining to data supporting the product at the federal level pursuant to Section 3(c)(1)(F)(iii) or 3(c)(2)(B) of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136a(c)(1)(F)(iii) or 136a(c)(2)(B)), or, if an award or agreement exists, the use of data in California was excluded from compensation or cost sharing on its face.
The data that fulfills a current requirement was submitted to the United States Environmental Protection Agency or the department no more than 15 years before the date of the applicant’s California registration, application, or amendment or the formal reevaluation request for additional data to which the registrant’s reliance responds, provided that as to data submitted to the department as of August 1, 2005, in support of the first registration of a product, the applicable period shall be 17 years from the date of submission to the United States Environmental Protection Agency.
If the director previously imposed a specific documented data requirement after January 1, 1991, to obtain, amend, or maintain the California registration of a pesticide product substantially similar to the applicant’s product and that data requirement is not currently imposed in California for registration, amendment, or maintenance of the applicant’s product, the applicant is further obligated to submit data to meet the requirement, obtain written permission from an owner of the data to rely on the data, formulate or obtain its product from a source that has authorization from the data owner to rely on the data or from a source that complies with subdivision (c), or, if the data meets the criteria set forth in paragraphs (1), (2), and (3), irrevocably offer to pay the data owner a share in the cost of producing the data and comply with subdivision (c). An offer to pay, and a payment pursuant to that offer, shall only be required as to data not submitted by the applicant that meets the criteria set forth in paragraphs (1), (2), and (3). To be eligible for cost sharing pursuant to this subdivision, the data shall meet all of the following requirements:
The data met a specific, documented requirement of the director to obtain, amend, or maintain the California registration of the data owner’s pesticide product for a use covered by the applicant’s application or amendment.
There has been no arbitration award, data compensation, or data cost-sharing agreement pertaining to data supporting the product at the federal level pursuant to Section 3(c)(1)(F)(iii) or 3(c)(2)(B) of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136a(c)(1)(F)(iii) or 136a(c)(2)(B)), or, if an award or agreement exists, the use of the data in California was excluded from compensation or cost sharing on its face.
The data was submitted to the United States Environmental Protection Agency or Department of Pesticide Regulation by the data owner after January 1, 1991, and no more than 15 years before the date of the applicant’s California application for registration or amendment or the response to a formal specific document data requirement to which the registrant’s reliance responds, provided that as to data submitted to the department as of August 1, 2005, in support of the first registration of a product, the applicable period shall be 17 years from the date of submission to the United States Environmental Protection Agency.
An applicant may formulate its product from a source that does not have data authorization if that source has submitted data to support the product or makes or has made an irrevocable offer to pay the data owner a share of the cost of producing the data required pursuant to subdivision (a) or (b) for the applicant’s product and complies with or has made payment in accordance with subdivision (d). If the source has already reached a data compensation or cost-sharing agreement or there has been an arbitration award under the Federal Insecticide, Fungicide, and Rodenticide Act (commencing with 7 U.S.C. Sec. 136) that excludes the right to rely on the data to satisfy the California requirement on its face, the source shall make or have made a new irrevocable offer to pay a share of the cost of producing that data to support the applicant’s product in California and comply with subdivision (d).
Allow the proceeding authorized by this subdivision, upon mutual agreement of the parties, to be consolidated with dispute resolution under the Federal Insecticide, Fungicide, and Rodenticide Act (commencing with 7 U.S.C. Sec. 136).
Require that the decisionmaker consider, among other factors, that the data owner’s exclusive right to sell the pesticide resulted in the data owner recovering all or part of the costs of generating the data.
Require that the parties to the proceeding share equally in the payment of the expenses thereof.
If a data owner fails to participate in a procedure for reaching an agreement or in a proceeding as required by subdivision (d), or fails to comply with the terms of an agreement or decision conducted under subdivision (d), then that data owner forfeits their right to cost recovery as a result of the use of the data at issue.
If the director finds that an applicant has failed to make an offer to pay as required under subdivision (a) or (b), or if its source of product has failed to make an offer pursuant to subdivision (c), or if an applicant or its source of product has failed to participate in a proceeding for reaching an agreement, has refused to participate in a proceeding pursuant to subdivision (d), or has failed to comply with an agreement or to comply with an order, or to pay an award resulting from that proceeding, the director shall cancel the registration of the pesticide product in support of which the data was used in accordance with subdivision (g), notwithstanding Section 12825.
If the applicant subject to subdivision (a) or (b) fails to comply with this article, the data owner shall notify the director of the specific provision of noncompliance and provide proof of notification to the applicant of its claim of noncompliance. All parties shall have 30 days from the date of receipt of notification by the director to submit written evidence or arguments to the director regarding the claim and any defenses thereto. The director shall provide a written finding within 60 days of the deadline for submission as to the claim and the resulting consequences.
A hearing or live testimony shall not be conducted under subdivision (g) and this proceeding shall not be used as mechanism to prevent or delay the registration or payment for cost sharing as determined by this article. The finding of the director shall be final and conclusive, except that any party aggrieved by such a finding may seek review within 30 days of the finding pursuant to Section 1094.5 of the Code of Civil Procedure.
In lieu of seeking a determination by the director and cancellation of the registration pursuant to subdivision (f), the data owner may bring an action in any California court of competent jurisdiction against the applicant to enforce the obligations of that party set forth in this section.
Cost sharing as provided in subdivisions (a), (b), and (c) shall not be required to support an application for annual renewal of a pesticide product registration, provided this provision shall not authorize renewal of a product registered before the effective date of this section if that registration is declared to have been unlawfully issued by a court of competent jurisdiction.
The Department of Pesticide Regulation shall make available in the public domain its index of data submitted in support of registration applications, the ownership of that data, and the date it was submitted to California.
The director shall establish, by regulation, fees for the department’s registration program, as established pursuant to this division. The fees shall include, but are not limited to, the following:
Annual fees for each product submitted for registration.
Penalties for the late payment of registration fees.
Fees for amendments to registered products.
The fees established pursuant to this section may include costs for administration and overhead in connection with administering the fees.
The fees established pursuant to this section shall be set so that the total revenue collected each fiscal year is sufficient to support the expenditure levels for the registration program contained in the annual Budget Act.
Funds collected pursuant to this section shall be deposited into the Department of Pesticide Regulation Fund, and shall be available for expenditure by the department, upon appropriation by the Legislature, for purposes of carrying out the department’s pesticide registration program, as established pursuant to this division.
The regulations adopted pursuant to this section, or any amendment or readoption thereto, shall be adopted by the director in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. However, the adoption, amendment, readoption, or repeal of these regulations shall be considered by the Office of Administrative Law as an emergency, and necessary for the immediate preservation of the public peace, health, safety, and general welfare. Notwithstanding any other law, the regulations shall remain in effect until amended by the director.
On or before January 31 of each year, if the department determines that it might increase the fees established pursuant to this section during the calendar year, the department shall post the determination on its internet website and send the determination through any of its relevant, registration-related email lists.
Any county, state, or federal officer or employee who sells any pesticide at cost is not required to pay any fee that is imposed by this chapter.
If a manufacturer, importer, or dealer in pesticides that applies for registration of pesticides has complied with this chapter and the regulations that are adopted pursuant to it, the director shall register each pesticide that is sought to be registered and issue a certificate of registration to the applicant that authorizes the manufacture and sale of the pesticide in this state.
If the director finds that registration cannot be permitted due to noncompliance with this chapter or the regulations which are adopted pursuant to it, he or she may, after reasonable notice, call a hearing for the purpose of determining whether the application shall be reconsidered or denied.
Every registration expires on December 31st of each year except when renewal is applied for within one month thereafter in the manner which is provided for registration.
If renewal is not applied for within one calendar month after the expiration of a registration, a penalty as prescribed by the director pursuant to Section 12812 shall be added to the registration fee.
A penalty shall not be collected if the person that makes application for renewal of registration makes an affidavit that no business was done during the period of nonregistration.
The payment of any renewal fee or penalty is not a bar to any prosecution for doing business without proper registry.
Each applicant for a certificate of registration shall also file a statement of every brand, trademark, and kind of pesticide that the applicant intends to manufacture or sell, the correct name and percentage of each active ingredient in the pesticide, and the total percentage of inert ingredients that are contained in the pesticide. The director, whenever he or she deems it necessary for the effective administration of this chapter, may require the submission of the complete formula for the pesticide.
A supplemental application for registration of any additional pesticide may be submitted at any time without payment of the penalty required by Section 12818.
A change in the name or percentage, or both, of an inert ingredient is not a change in composition of the pesticide that requires a new registration unless the change in inert material results in a change in the use or application of the pesticide.
The director shall endeavor to eliminate from use in the state any pesticide that endangers the agricultural or nonagricultural environment, is not beneficial for the purposes for which it is sold, or is misrepresented. In carrying out this responsibility, the director shall develop an orderly program for the continuous evaluation of all pesticides actually registered.
Before a substance is registered as a pesticide for the first time, there shall be a thorough and timely evaluation in accordance with this section. Appropriate restrictions may be placed on its use, including, but not limited to, limitations on quantity, area, and manner of application. All pesticides for which renewal of registration is sought also shall be evaluated in accordance with this section.
The director may establish specific criteria to evaluate a pesticide with regard to the factors listed in Section 12825. The department may establish performance standards and tests that are to be conducted or financed, or both conducted and financed, by the registrants, applicants for registration, or parties interested in the registration of those pesticides.
Each pesticide registrant or applicant shall, upon request of the director, submit any data determined by the director to be necessary to carry out this section.
In response to an invasive species threat, including, but not limited to, the threat of golden mussels, the department shall work with state and local agencies in order to quickly and efficiently respond to the threat. The department shall identify any tools available to assist a state or local agency in rapidly responding to the invasive species threat. This may include, but is not limited to, identifying any strategy, including an integrated pest management strategy, or a registered pesticide that would be a valuable tool to address the threat.
The department shall help identify any existing processes that allow for the rapid use of any tool that could be used to address the invasive species threat and enables a streamlined or faster administrative or procedural process.
On or before July 1, 2025, and annually thereafter, until July 2, 2029, the department shall annually identify and initiate the reevaluation of potential adverse effects of at least one pesticide in addition to those already under reevaluation.
On or before July 1, 2029, and each year thereafter, the department shall annually identify and initiate the reevaluation of potential adverse effects of at least two pesticides in addition to those already under reevaluation.
If the department identifies potential adverse effects of a pesticide pursuant to subdivision (a), the department shall adopt any necessary mitigation measures within 24 months.
If the department is unable to adopt mitigation measures within 24 months, the director shall set forth the reasons this requirement has not been met in the report described in subdivision (c), and include an updated projected timeline for adopting mitigation measures, which shall not exceed an additional 6 months.
The department shall annually report on, and post on its internet website, its actions to identify and evaluate potential adverse effects of pesticides, and to develop mitigation measures to address those effects. The report and internet website posting shall include, but not be limited to, a list of pesticides under risk assessment, reevaluation, or mitigation development, and shall provide the current status and projected timelines associated with each of those actions and all other applicable reporting requirements in this chapter.
The department, on or before July 1, 2026, shall identify actions to improve the efficiency of its internal processes for reevaluating pesticides. The goal of these actions shall be to complete new reevaluations within five years of their initiation. If the department identifies any regulatory or statutory changes that would improve the efficiency of the reevaluation process, the director shall notify the respective policy and fiscal committees of the Legislature of those changes on or before July 1, 2026.
The department, on or before January 1, 2025, shall post on its internet website an estimated completion time for the pesticides that the department has under reevaluation as of January 1, 2024.
Pursuant to Section 12824, the director, after a hearing, may cancel the registration of, or refuse to register, a pesticide if any of the following conditions apply:
The pesticide has significant adverse environmental effects for which there is no feasible mitigation available.
The use of the pesticide is of less public value or greater detriment to the environment than the benefit received by its use.
There is a reasonable, effective, and practicable alternate material or procedure for the pesticide that is demonstrably less destructive to the environment.
The pesticide, when properly used, is detrimental to vegetation, except weeds, to domestic animals, or to the public health and safety.
The pesticide is of little or no value for the purpose for which it is intended.
The registrant or their agent makes or implies a false or misleading statement concerning the pesticide, either verbally or in writing, or in the form of any advertising literature, for the purpose of meeting any registration requirement under this division, or that is otherwise related in any way to the pesticide.
The director determines that the registrant has failed to report an adverse effect or risk for the pesticide as required by Section 12825.5.
The director determines that the registrant has failed to comply with the requirements of a reevaluation or to submit the data required as part of the reevaluation of the registrant’s product or pursuant to Section 12824.
The pesticide is required to be registered pursuant to the federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.) and is not so registered.
In making a determination pursuant to this section, the director may require those practical demonstrations that are necessary to determine the facts.
If, during the registration process or at any time after the registration of a pesticide, the registrant has factual or scientific evidence of any adverse effect or risk of the pesticide to human health, livestock, crops, or the environment that has not been previously submitted to the department, the registrant shall submit the evidence to the director in a timely manner. All such information, including, but not limited to, that information required under Section 6 (a) (2) of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136d (a) (2)), shall be submitted to the director.
The director may adopt regulations that are reasonably necessary to carry out this section.
If the director has reason to believe that any of the conditions stated in Section 12825 are applicable to any registered pesticide and that the use or continued use of that pesticide constitutes an immediate substantial danger to persons or to the environment, the director, after notice to the registrant, may suspend the registration of that pesticide pending a hearing and final decision. If an accusation pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code is not filed within 10 days from the date of the notice, the suspension shall be terminated.
The director may cancel a certificate of registration, or, refuse to issue certification to any manufacturer, importer, or dealer in any pesticide that repeatedly violates any of the provisions of this chapter or the regulations of the director.
The proceedings shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The director has all the powers that are granted therein.
Whenever the director cancels the registration of, or refuses to register, any pesticide currently registered by the United States Environmental Protection Agency, the director shall provide the applicant or registrant with the basis for the decision and the reasons why a conclusion different from, contrary to, or inconsistent with, the conclusion and findings of the United States Environmental Protection Agency was reached.
A registrant at any time may request that the registration of any of its pesticides be voluntarily canceled. The request shall be in writing and shall include a waiver of the registrant’s right to a hearing on the cancellation.
The director shall mail a notice of cancellation of registration of the pesticides to the registrant. The notice shall specify the effective date of the cancellation.
The pesticides for which the registration is canceled may be sold and possessed as if the product’s registration was not renewed unless the director determines that protection of human health or the environment require otherwise, in which case the cancellation notice shall specify the conditions under which the product may be sold or possessed after cancellation of its registration.
If a person has a research authorization for a pesticide issued pursuant to Section 6260 of Title 3 of the California Code of Regulations for the purpose of testing the pesticide, and the produce on which the pesticide was tested is required to be destroyed, any actual costs incurred by the commissioner to investigate and confirm the destruction of the produce shall be paid for by the person who has the research authorization. The costs charged by the commissioner shall not exceed one hundred twenty-five dollars ($125) per testsite. The board of supervisors of each county may adopt a fee schedule to cover the commissioner’s costs under this section.
Notwithstanding any other provision of this chapter, alfalfa and all vegetable crops, when grown for seed production, with the exception of corn, beans, pumpkin, and peas, shall be considered a nonfood and nonfeed site of pesticide use for the purpose of pesticide registration. In order to be determined to be a nonfood or nonfeed site for the purposes of this section, the following conditions shall be met:
All seed screenings shall be disposed of in such a way that they cannot be distributed or used for food or feed. The seed conditioner shall keep records of screenings disposal for three years from the date of disposal and shall furnish the records to the director upon request. Disposal records shall consist of documentation from a controlled waste disposal site, incinerator, cogeneration plant, composting facility, or other equivalent disposal site.
No portion of the seed plant, including, but not limited to, green chop, hay, pellets, meal, whole seed, cracked seed, or seed screenings shall be used or distributed for food or feed purposes.
All seed crops grown on a nonfood or nonfeed site in this state, or conditioned in this state, shall bear a tag or container label that forbids the use of the seed for human consumption or animal feed.
No seed grown on a nonfood or nonfeed site in this state, or conditioned in this state, may be distributed for human consumption or animal feed.
Nothing in this section prevents the department from imposing conditions for alfalfa seed sites in addition to those contained in this section, or from rescinding any current label requirements for pesticides approved for alfalfa seed production.
Nothing in this section exempts the department from reviewing worker safety evaluations with regard to the use of pesticides involving crops specified in subdivision (a).
A violation of any condition specified in subdivision (a) by the person responsible for the use of the pesticide is a violation of this chapter, and is subject to the civil and criminal penalties and injunctive relief provisions specified in Article 12 (commencing with Section 12996). A violation of any condition specified in subdivision (a) by the person responsible for the disposition of seed screenings is a violation of Chapter 6 (commencing with Section 14901) and is subject to enforcement by the Department of Food and Agriculture.
Notwithstanding any other provision of this chapter, the director may issue a certificate of emergency registration for a pesticide if all of the following conditions are met:
The pesticide is currently registered by the United States Environmental Protection Agency pursuant to Section 3 of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136a) for the use specified in subparagraph (B) of paragraph (5).
The active ingredient of the pesticide was previously registered under Section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136p) in order to respond to an emergency pest control problem.
The applicant demonstrates to the department that the pesticide qualifies for registration pursuant to Section 12815 and the department determines that it is probable that the pesticide will receive registration pursuant to this division within one year.
The applicant for emergency registration submits to the director all data required for registration pursuant to this division and the regulations adopted pursuant to this division.
The director makes both of the following findings based on substantial evidence:
The use of the pesticide during the period of emergency registration will not pose a potential significant risk to public health or safety or to the environment. In making this finding, the director shall review the risks associated with the use of the pesticide and determine if those risks are significant given the limitations that will be imposed on the use of the pesticide during the emergency registration period.
The emergency registration of the pesticide is necessary in order to effectively respond to an emergency pest control problem. For purposes of this subparagraph, an emergency pest control problem shall be deemed to exist if the director finds that a pest infestation is present in the state for which no feasible pest control method is available that is a reasonable alternative to the use of the pesticide for which the emergency registration is requested. In making a determination pursuant to this subparagraph, the director shall identify the pest infestation that is the subject of the emergency, describe the pest control methods that have been demonstrated as ineffective against the infestation or that are otherwise not reasonable alternatives, and summarize the evidence that demonstrates that the pesticide for which emergency registration has been requested is efficacious against the pest infestation.
At the same time as the director issues a certificate of emergency registration for a pesticide pursuant to this section, the director shall establish limitations on the use of the pesticide that the director determines are necessary to prevent a potential significant risk to human health or safety or the environment. The director shall limit the use of any pesticide granted a certificate of emergency registration to the control of the emergency pest infestation described in subparagraph (B) of paragraph (5) of subdivision (a).
A certificate of emergency registration may be issued for a period not to exceed one year and may be renewed one time only.
A certificate of emergency registration may not be renewed unless the director does all of the following:
Publishes a notice that an application for renewal of the certificate of emergency registration has been received.
Makes all of the following findings:
That the findings made by the director in support of the certificate of emergency registration pursuant to paragraph (5) of subdivision (a) remain valid.
That there are no indications that the pesticide, when used in accordance with applicable label instructions and the limitations established pursuant to subdivision (b), poses a significant risk to worker safety and health. The director shall base this finding on a review of the data required for registration pursuant to this division, experience with the use of the pesticide during the period the certificate of emergency registration was in effect, and any other information the director has required the applicant to submit or received from the applicant or any other person.
That the failure to complete the registration of the pesticide during the period the certificate of emergency registration was in effect is due to circumstances that were not under the control of the applicant, and that the data required for registration pursuant to this division is complete and meets all of the requirements of this division and the regulations adopted pursuant to this division.
Convenes a workshop, if one is requested by any interested or aggrieved person, concerning the reasons for the renewal of the certificate of emergency registration. The director shall review information and comments provided by persons who attend the workshop and take that information and those comments into account in determining if the certificate of emergency registration may be renewed.
The director shall immediately revoke any certificate of emergency registration issued pursuant to this section if either of the following occurs:
The United States Environmental Protection Agency suspends or cancels the registration of the pesticide or the particular use of the active ingredient in the pesticide that allows it to be used in the emergency pest infestation described in subparagraph (B) of paragraph (5) of subdivision (a).
The director determines during a subsequent review of data required for registration pursuant to this division that the use of the pesticide will pose a potential significant risk to the public health or safety or to the environment.
The director, by January 1, 1999, shall implement a program for the expedited registration of or for the expedited amendment of the registration of any pesticide classified by the United States Environmental Protection Agency as a “public health pesticide” or “antimicrobial pesticide” and that is determined by the director to have human health protection benefits that warrant eligibility for expedited processing. Nothing in this section limits the director’s authority to provide expedited registration for any other pesticide product.
For the purposes of this section, “expedited registration” and “expedited amendment of the registration” mean that the director shall review an application for registration or for amendment of a registration concurrently in time with the review conducted by the United States Environmental Protection Agency. This section shall not be construed to require or authorize modification of any guidelines, protocols, or standards applicable to the review of an application for registration.
The director shall accept applications for registration of pesticide products containing a new active ingredient concurrently with the application to the United States Environmental Protection Agency. The application for registration must include all data and information that meet the requirements of this chapter.
The director shall, with the assistance of the Legislative Analyst, conduct a study to consider more carefully the consequences of data-sharing agreements required under Section 12811.5 and the volume of high-hazard pesticides sold in California. The report shall be submitted to the Legislature no later than December 31, 2008.
The director may waive the submission or review, or both, of efficacy data developed by a registrant as a prerequisite for registration for any antimicrobial pesticide product if all of the following conditions have been met with respect to each antimicrobial pesticide product:
The director finds that the United States Environmental Protection Agency’s guidelines, protocols, and standards of review in existence at the time the product was reviewed by the United States Environmental Protection Agency are consistent with, and no less stringent than, California guidelines, protocols, and standards and generally accepted scientific practices.
The director finds that, with respect to the particular antimicrobial pesticide product reviewed under this section, the United States Environmental Protection Agency actually implemented the guidelines, protocols, and standards of review for which the director made the required finding pursuant to paragraph (1). In making this finding, the director may request any relevant studies or documentation from the registrant.
Nothing in this section shall be construed as a limitation on the director to request or to review any efficacy data or studies or to subject any product to testing, at any time.
On or before July 1, 2018, the department shall issue a determination with respect to its reevaluation of neonicotinoids.
Within two years after making the determination specified in subdivision (a), the department shall adopt any control measures necessary to protect pollinator health.
If the department is unable to adopt the necessary control measures within two years as required in paragraph (1), the department shall submit a report to the appropriate committees of the Legislature setting forth the reasons the requirement of paragraph (1) has not been met.
The department shall update the report submitted to the appropriate committees of the Legislature pursuant to paragraph (2) every year until the department adopts the necessary control measures specified in paragraph (1).
“Cumulative impacts of exposure” means the collective impact of exposure to two or more neonicotinoid pesticides.
“Neonicotinoid pesticide” means a pesticide containing acetamiprid, clothianidin, dinotefuran, imidacloprid, thiamethoxam, or any other chemical designated by the department as belonging to the neonicotinoid class of chemicals.
On or before January 1, 2024, the department shall issue a draft human health risk assessment of imidacloprid.
On or before July 1, 2024, the department shall initiate a reevaluation of neonicotinoid pesticides relative to pollinating insects, aquatic organisms, and human health, taking into account relevant routes of exposure.
On or before January 1, 2025, the department shall issue a final human health risk assessment for imidacloprid.
On or before January 1, 2025, the department shall issue draft human health risk assessments for the neonicotinoid chemicals described in subparagraph (B) of paragraph (1) other than imidacloprid.
On or before July 1, 2025, the department shall issue an evaluation of the impact of neonicotinoid pesticides on aquatic organisms.
On or before January 1, 2026, the department shall issue final human health risk assessments for the neonicotinoid chemicals described in subparagraph (B) of paragraph (1) other than imidacloprid.
On or before July 1, 2027, the department shall issue a determination with respect to the reevaluation of neonicotinoid pesticides on their impacts on pollinating insects, aquatic organisms, and human health.
On or before July 1, 2029, the department shall adopt any necessary control measures for the use of neonicotinoid pesticides that are determined by the department to be necessary, based on the evaluations described in paragraph (3).
If the department is unable to meet any deadline required in paragraph (3) or (4), the department shall submit a report to the appropriate committees of the Legislature setting forth the reasons the deadline or deadlines have not been met.
In performing the evaluations described in paragraph (3), the department shall consider the cumulative impacts of exposure to multiple neonicotinoid pesticides unless the department can demonstrate with substantial evidence that one or more neonicotinoid pesticides do not share a common mechanism of toxicity and do not present risk of cumulative harm.
The department is not required to conduct a reevaluation of any use of neonicotinoid pesticides for the protection of agricultural commodities, as defined in Section 6000 of Title 3 of the California Code of Regulations.
On and after July 1, 2027, the department shall meet the following timelines to review and evaluate, and issue final decisions on, applications to register new pesticide products or amend existing pesticide product registrations, as specified in this article, except as provided in subdivisions (b), (d), and (e).
For review and evaluation of, and issuance of a final decision on, an application for registration of a new active ingredient, 30 months from the date of submittal of a complete application.
For review and evaluation of, and issuance of a final decision on, an application for registration of a new product or letter of acceptance to amend an existing product registration, when previously evaluated data support registration or amendment and no supporting scientific data is required for review, six months from the date of submittal of a complete application.
For review and evaluation of, and issuance of a final decision on, an application for registration of a new product or letter of acceptance to amend an existing product registration, when evaluation of data is required, 12 months from the date of submittal of a complete application.
In cases where the submitted application for registration of a new product or amendment of an existing product registration does not include supporting scientific data for review, but the department subsequently determines that the application requires data evaluation, 12 months from the date of submittal of the required data.
The department may toll the applicable timeline provided in subdivision (a) under any of the following circumstances:
The applicant fails to correct a deficiency with the application identified by the department within a 15-business-day timeframe.
An application requires United States Environmental Protection Agency approval.
The applicant corrects a deficiency with the application, but also makes substantive changes to the product or label that exceeds correcting the deficiency.
Nonpayment of a registration fee by the applicant for the certificate of registration.
The application is reliant on data associated with another identical or substantially similar product submission undergoing registration review by the department.
Upon the conclusion of a circumstance that was the basis for the department tolling an applicable timeline pursuant to subdivision (b), the tolling period shall end and the applicable timeline shall resume within 15 business days after the department became aware of the conclusion of the circumstance.
If the department cannot meet an applicable timeline provided in subdivision (a), the director may extend the timeline for up to two 60-day periods by notifying the applicant in writing and specifying both of the following:
In addition to subdivision (d), the director and the applicant may mutually agree, in writing, to additionally extend an applicable timeline provided in subdivision (a).
It is the intent of the Legislature that, when the department hires staff due to the mill increases described in Section 12841 and registration fee increases in 2024, the department prioritize hiring for positions within the pesticide registration branch.
Beginning in 2025, the director, when requested by the appropriate policy committees of the Assembly and Senate, but no less than once every two years, shall appear before the appropriate policy committees of the Assembly and Senate to provide an update on the department’s performance, including, but not limited to, its performance completing timely registrations and reevaluations pursuant to this chapter, and any other information that the committees request.
ARTICLE 4.5. Assessments [12841. - 12847.]
A person shall not sell for use in this state any pesticide products that have been registered by the director for which the mill assessment established by this article, and the regulations adopted pursuant to it, is not paid at the times specified in Section 12843.
Except as provided in subdivision (d), every person who sells for use in this state a pesticide product that has been registered by the director shall pay to the director the applicable assessment. Those sales expressly include all sales made electronically, telephonically, or by any other means that result in a pesticide product being shipped to or used in this state. There is a rebuttable presumption that pesticide products that are sold or distributed into or within this state by any person are sold or distributed for use in this state.
Upon application of a registrant, the director shall determine whether a fertilizer or paper product is used as a carrier for a pesticide, and is sold in combination, and whether the mill assessment under this article shall be on the pesticide value only, when the product is designed, developed, and manufactured, and sold primarily for other than a pesticide use. If the director finds that the combination product has such a major component and is designed, developed, manufactured, and sold primarily for other than a pesticide use, the assessment provided by this article shall be paid on the equivalent percentage of the sales price of the active ingredients of the pesticide product. The director shall establish this percentage of the sales price. The percentage shall be the ratio of that portion of the sales price attributable to the pesticide portion to the total sales price of the combination product.
Assessments provided for in this article for sales of registered pesticides that are sold for use in this state shall be paid by the person or entity that first sold the pesticide for use in this state.
It has been and continues to be the intent of the Legislature that this division requires the department to register all pesticides before their sale for use in this state and, except as otherwise provided by law, requires the department to regulate and control the use of pesticides in accordance with this division. Except as provided in Section 12841.1, the department shall continue to collect the assessment as provided in this article at the same rate on all registered agricultural and registered nonagricultural pesticides.
The mill assessment shall be paid at the following rates per dollar of sales for all sales of pesticides for use in this state:
From July 1, 2024, to June 30, 2025, inclusive, the rate shall be 24.5 mills ($0.0245) per dollar sales of all sales of registered pesticides for use in this state plus any additional assessment authorized by Section 12841.1.
From July 1, 2025, to June 30, 2026, inclusive, the rate shall be 27 mills ($0.027) per dollar sales of all sales of registered pesticides for use in this state plus any additional assessment authorized by Section 12841.1.
From July 1, 2026, to June 30, 2027, inclusive, the rate shall be 29 mills ($0.029) per dollar sales of all sales of registered pesticides for use in this state plus any additional assessment authorized by Section 12841.1.
On and after July 1, 2027, the rate shall be 30 mills ($0.030) per dollar sales of all sales of registered pesticides for use in this state plus any additional assessment authorized by Section 12841.1.
The regulations adopted pursuant to this section, or any amendment thereto, shall be adopted by the director in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. However, the adoption, amendment, readoption, or repeal of these regulations shall be considered by the Office of Administrative Law as an emergency, and necessary for the immediate preservation of the public peace, health, safety, and general welfare. Notwithstanding any other law, the regulations shall remain in effect until amended by the director. The director shall make available to the public, upon the adoption of an emergency regulation establishing a new rate, the information on which the director has calculated, based, or determined the new rate.
The revenue collected pursuant to this section shall be deposited into the Department of Pesticide Regulation Fund and distributed as follows:
Notwithstanding Sections 2282 and 12784, the director shall pay, in accordance with the criteria set forth in Section 12844, the following amounts to the counties as reimbursement for costs incurred by the counties in the administration and enforcement of Division 6 (commencing with Section 11401), this chapter, Chapter 3 (commencing with Section 14001), Chapter 3.4 (commencing with Section 14090), and Chapter 3.5 (commencing with Section 14101):
From January 1, 1998, to March 31, 1998, inclusive, five-eighths of the money received during that period pursuant to this section.
From April 1, 1998, to June 30, 2004, an amount equal to the revenue derived from 6 mills ($0.006) per dollar of sales for all pesticide sales for use in this state.
Beginning July 1, 2004, an amount equal to the revenue derived from 7.6 mills ($0.0076) per dollar of sales for all pesticide sales for use in this state.
All funds not otherwise distributed pursuant to this subdivision shall remain in the Department of Pesticide Regulation Fund and shall be available for expenditure, upon appropriation by the Legislature, to support the department’s operations.
For purposes of this section, “active ingredient” means any active ingredient that is required to be stated on the label on any registered pesticide under Section 12883.
The director may collect an assessment, in addition to the mill assessment collected pursuant to Section 12841, for all pesticide sales for use in this state except for sales for use in this state of pesticides labeled solely for home, industrial, or institutional use. The director may only collect up to an additional 1.04 mills ($0.00104) per dollar of sales, in addition to the rate established pursuant to Section 12841, if necessary to fund, or augment the funding for, an appropriation to the Department of Food and Agriculture to provide pesticide consultation to the department pursuant to Section 11454.2. The necessity of this additional assessment shall be determined by the Secretary of Food and Agriculture, in consultation with the director, on an annual basis after consideration of all other revenue sources, including any reserves, that may be appropriated for this purpose. The secretary’s written determination, including a request for a specified additional assessment and the basis for that request, shall be provided to the director by a time and in a manner prescribed by the director.
The revenue collected pursuant to this section shall be deposited monthly into a separate account in the Department of Food and Agriculture Fund. These revenues shall be expended only by the Department of Food and Agriculture, upon appropriation by the Legislature, to provide consultation to the department pursuant to Section 11454.2. Funds shall not be expended before the execution of a memorandum of understanding pursuant to subdivision (b) of Section 11454.2. The consultation activities to be undertaken by the Department of Food and Agriculture are limited solely to those specifically authorized in the memorandum of understanding executed pursuant to Section 11454.2. These funds shall not be expended for scientific risk assessment activities. The department shall be reimbursed from the Department of Food and Agriculture Fund for the department’s revenue collection activities. If the director determines that a person is entitled to a refund of mill assessment funds that were collected pursuant to this section, the director shall inform the Secretary of Food and Agriculture of the amount of the refund due, which shall be reimbursed from the Department of Food and Agriculture Fund.
The Department of Pesticide Regulation shall create a program to conduct outreach and education activities for worker safety, environmental safety, school safety, and proper pesticide handling and use, to include, but not be limited to, the following issues and criteria:
The program shall encompass all communities, including urban, rural, and suburban communities.
All potential exposure opportunities, including household, industrial, and agricultural uses.
Rights and procedures of workers and those potentially exposed to pesticides and how to file confidential complaints.
The program shall be conducted in accordance with the department’s environmental justice guidelines.
The director shall appoint an advisory committee of interested stakeholders to provide input on the development and implementation of the program.
This program shall compliment and not replace other outreach efforts currently in place not dealing with the issues addressed within this program.
Notwithstanding Sections 2282, 12784, and 12841, the director shall pay from the revenue collected from the mill assessment in the Department of Pesticide Regulation Fund an amount not to exceed the revenue derived from 0.5 mill ($0.0005) per dollar of sales for all pesticide sales for use in this state to counties in nonattainment areas to assist those counties in the administration and enforcement of restrictions on the use of field fumigants pursuant to Chapter 3 (commencing with Section 14001) and the regulations issued pursuant to it. These funds shall be in addition to the funds distributed pursuant to Section 12841 and shall be distributed to the counties in accordance with the criteria set forth in subdivisions (c) and (d).
As used in this section, “nonattainment area” means an area designated in Section 81.305 of Title 40 of the Code of Federal Regulations for the purpose of air quality planning within the chart titled “California - Ozone (1-Hour Standard).”
The funds available for payment pursuant to subdivision (a) shall be apportioned based on the following criteria:
A minimum of fifty thousand dollars ($50,000) shall be apportioned to each county in a nonattainment area.
The remaining amount shall be apportioned to the counties based on fumigant related workload, which may include, but is not limited to, both of the following:
The number of restricted use material permits issued for fumigants.
The number of field fumigant applications in each county to the total for all counties within all nonattainment areas during the previous fiscal year.
Only counties within a nonattainment area for which the Department of Pesticide Regulation has established a fumigant emission limit pursuant to Chapter 3 (commencing with Section 14001), and the regulations issued pursuant to it, in the current or the previous fiscal year shall receive payment of the amount apportioned pursuant to the criteria set forth in subdivision (c).
Every registrant of any production agricultural- or structural-use pesticide product sold for use in this state that is packaged in rigid, nonrefillable, high-density polyethylene (HDPE) containers of 55 gallons or less shall establish a recycling program, or demonstrate participation in a recycling program to ensure HDPE containers are recycled. Container recycling shall comply with the American National Standards Institute American Society of Agriculture and Biological Engineers Standard S596, entitled Recycling Plastic Containers from Pesticides and Pesticide-Related Products, as published in February 2006. The records required by these standards shall be maintained for four years and shall be subject to audit by the director.
A registrant who is required to establish or participate in a recycling program pursuant to this section shall provide to the director, at least annually, a document certifying that this requirement has been met.
The director may adopt regulations to carry out the purposes of this section. Upon a federal pesticide container recycling program being adopted, the director may adopt regulations to conform to the federal program.
It is the intent of the Legislature in enacting this section that any regulatory standards adopted by the department shall be at least as stringent as those standards referred to in subdivision (a).
The department shall estimate a recycling rate for pesticide containers and propose suggestions for program improvements and post this information annually on its internet website.
Every person who sells for use in this state any pesticide products that have been registered by the director shall maintain in this state, or with the director’s permission at another location, an accurate record of all pesticide transactions for four years. The records are subject to audit by the director and shall clearly demonstrate proof of payment of all applicable assessments for each registered pesticide product sold for use in this state.
The payments required by this article, together with a return in a form prescribed by the director, shall be made quarterly one calendar month after March 31, June 30, September 30, and December 31 of each year. For any delinquency in making a return, or any deficiency in payment, the director shall add to the delinquent payment a penalty of 10 percent of the amount that is due.
The director and the county agricultural commissioners shall jointly develop regulations specifying the criteria to be used in allocating pesticide mill assessment funds to the counties based upon each county’s pest control activities, costs, workload, and performance. After providing public notice, the director shall adopt those regulations. The criteria to be used in allocating the funds to counties shall include, but not be limited to, all of the following:
The effectiveness of the pesticide use enforcement program in each county.
The number, comprehensiveness, and effectiveness of pest control inspections performed in each county.
The number of licensed pest control dealers located in each county. The number of licensed agricultural pest control advisers, pest control businesses, and pest control aircraft pilots registered in each county. The number of structural pest control operators providing notice of work to each county.
The work hours expended in each county by county personnel who are licensed, or working under the supervision of county personnel licensed, in pesticide regulation or environmental monitoring and investigation.
The total amount of dollars expended by each county relating to pesticide regulatory activities.
The total number of private applicator certificate holders in each county.
The total pounds of pesticides reported used in each county.
The director may adopt regulations that require persons subject to this article to provide information determined by the director to be necessary to enable the director to perform the audit authorized pursuant to Section 12842 and to carry out other powers or duties under this division.
The regulations adopted pursuant to this section may include, but are not limited to, a requirement that a person subject to this article provide the director with information on the quarterly dollar sales of each registered pesticide sold for use in this state and the quarterly volume of each registered pesticide sold for use in this state.
Sales invoices for pesticides first sold into or within this state shall show that the assessments specified in Sections 12841 and 12841.1 will be paid by the person or entity that first sold the pesticide for use in the state. All other sales invoices for pesticides sold into or within this state, except retail sales of those nonagricultural pesticides labeled only for home, industrial, or institutional use, shall show as a comment on the invoice that the assessment will be paid, and may show an amount or rate that represents the assessment. However, only the person who actually will pay the assessment may show the amount or rate of the assessment as a line item on the sales invoice.
ARTICLE 5. Labeling and Warranty [12851. - 12859.]
The registrant of any pesticide shall attach to each separate lot, and each separate, finished, sealed, or closed container or package of pesticide that the registrant intends to sell within this state, a plainly printed label, that states all of the following:
The name, brand, or trademark, if any, under which the pesticide is sold.
The name and address of the registered manufacturer, importer, or vendor.
The registrant of any pesticide that is sold or delivered to a consumer in this state shall furnish printed directions for use, and dilution if any, upon the label, or shall enclose the printed directions in each container or package of the pesticide.
A registrant of pesticides may print upon the label of any sealed or closed container or package of pesticide that the registrant intends to sell within this state, or upon the label of any opened lot from which sales have been authorized by the director, such limitations of warranty with respect to the use of the pesticide, as the registrant may consider proper.
No limitations of warranty by the seller shall exclude or waive either of the following implied warranties:
That the pesticide corresponds to all claims and descriptions that the registrant has made in respect to it in print.
That the pesticide is reasonably fit for use for any purpose for which it is intended according to any printed statement of the registrant.
Except as otherwise provided in this article, the registrant is not liable for any injury or damage that is suffered solely by reason of any of the following:
The use of the pesticide for a purpose that is not indicated by the label.
The use of the pesticide contrary to the printed directions of the registrant or seller.
The breach of any warranty by the registrant that is not expressly printed on the label.
Except as otherwise provided in Section 12857, a pesticide shall not be sold unless it is in a registrant’s sealed or closed container or package.
The director , pursuant to regulations prescribed by him or her, may authorize sales of pesticides to be made out of a registrant’s opened but properly labeled lot, container, or package. The director shall serve notice of the proposed action by depositing a copy of it in a United States post office, inclosed in a sealed envelope with postage prepaid and addressed to each registrant at his or her last address on file with the department. The director shall allow 15 days, during which time any protest may be filed.
The director shall adopt regulations governing the labeling of service containers. The labeling regulations shall not apply to containers used by a person engaging in the business of farming when the containers are used on the property that the person is farming. The regulations shall provide that the labeling only include the following:
The name and address of the person or firm responsible for the container.
The identity of the pesticide in the container.
The word “DANGER”, “WARNING”, or “CAUTION” in accordance with the label on the original container.
ARTICLE 6. Misbranding [12881. - 12885.]
A pesticide is misbranded in any of the following cases:
The package or label bears any false or misleading statement, design, or device regarding the article or any ingredient or substance that is contained in it.
The package or label is falsely branded as to the place of manufacture or production of the pesticide.
It is an imitation of, or offered for sale under the name of, another article.
It is labeled or branded so as to deceive or mislead the purchaser.
A pesticide is also misbranded in any of the following cases:
The contents of the package as originally put up have been removed in whole or in part and other contents placed in the package.
The contents of the package are of a quality below that of the guarantee on the label, on the application for registration of the pesticide, or of the analysis of the representative sample delivered in connection with the application for registration of the pesticide.
If the contents of any package of a pesticide is stated in terms of weight or measure, and the weight or measure is not plainly and correctly stated on the outside of the package.
The label does not conform to the registered label approved by the director under the standards of this division.
Except as otherwise provided in Section 12884 , a pesticide is also misbranded when the label fails to state one of the following:
The name and percentage of each active ingredient, together with the total percentage of the inert ingredients, in the pesticide.
The name of each active ingredient, together with the name of each and the total percentage of the inert ingredients, if there are any, in the pesticide.
A pesticide that is sold only as a spray adjuvant is not misbranded if the total percentage of the constituents ineffective as a spray adjuvant is stated on the label without mention of the terms “active ingredient” or “inert ingredient” in lieu of one of the options required by this section.
If the preparation is highly toxic to humans, as determined by regulations of the director, a pesticide is misbranded if the label fails to state the name and percentage of each active ingredient together with the total percentage of the inert ingredients in the pesticide.
In addition to the other provisions of this article, a spray adjuvant is misbranded if the label fails to state the type or function and the names of the principal functioning agents. If more than three functioning agents are present, only the three principal ones need be named.
ARTICLE 7. Adulteration [12911. - 12911.]
A pesticide is adulterated in any of the following cases:
Its strength or purity falls below the standard or quality that it is represented to have.
Any ingredient that is necessary to its effectiveness has been wholly or in part abstracted or omitted in its manufacture, or other materials substituted for that ingredient.
It is intended for use on vegetation and contains any substance that is seriously injurious to vegetation, except weeds, if used according to the directions that are furnished with it.
ARTICLE 8. Analysis [12931. - 12931.]
The director may take samples of pesticides, make analyses or examinations of them, and make such investigations as are necessary for the full enforcement of this chapter.
ARTICLE 9. Seizure [12961. - 12961.]
The director may seize and quarantine any pesticide that is adulterated, misbranded, or detrimental to agriculture or to the public health, or which is otherwise not in conformity with any provision of this chapter.
ARTICLE 10. Recommendations and Usage [12971. - 12979.]
No recommendation shall be in conflict with the registered labeling for the product being recommended.
The use of any pesticide by any person shall be in such a manner as to prevent substantial drift to nontarget areas.
The use of any pesticide shall not conflict with labeling registered pursuant to this chapter which is delivered with the pesticide or with any additional limitations applicable to the conditions of any permit issued by the director or commissioner.
Failure of a person using a pesticide to possess a written recommendation shall create a rebuttable presumption that he or she has assumed responsibility for the recommendation.
A person making a written recommendation does not incur an obligation to insure that the actual use follows his or her recommendation.
The director may adopt regulations to govern the possession, sale, or use of any pesticide which the director finds necessary to carry out the purposes of Division 6 (commencing with Section 11401) or this division.
The director, and the commissioner of each county under the direction and supervision of the director, shall enforce the provisions of this article and the regulations adopted pursuant to it.
Pesticide applications on public property which take place on school grounds, parks, or other public rights-of-way where public exposure is foreseeable shall be posted with warning signs. The signs shall be in English and Spanish and shall contain a warning that the area has been treated with a pesticide and that individuals are not to enter the area.
This section shall apply to all pesticide applications which have worker reentry intervals of at least 24 hours.
Posting shall be accomplished immediately prior to pesticide applications, and the signs shall be removed within 24 hours after the expiration of the reentry interval.
Signs shall be posted at regular intervals and at all regular points of public entry.
The agency with responsibility for the property where the pesticide application is to take place shall post the warnings required by this section.
The responsible agency may substitute a barrier for the warning signs to exclude public exposure to a treated area.
This section does not apply to pesticide applications by the Department of Transportation on public highway rights-of-way.
For purposes of this section, the following terms have the following meanings:
“Chlorophacinone” means a pesticide product containing chlorophacinone.
“Diphacinone” means a pesticide product containing diphacinone.
“First-generation anticoagulant rodenticide” means a pesticide product containing any of the following active ingredients:
Diphacinone.
Chlorophacinone.
Warfarin.
“Integrated pest management” has the same meaning as defined in Section 11401.7.
“Second-generation anticoagulant rodenticide” means a pesticide product containing any of the following active ingredients:
Brodifacoum.
Bromadiolone.
Difenacoum.
Difethialone.
“Sustainable pest management” has the same meaning as defined in Section 11412.
“Warfarin” means a pesticide product containing warfarin.
“Wildlife habitat area” means a park or wildlife refuge managed by a state agency, regional government, or quasi-government agency, or by a special district.
Except as provided in subdivision (g), and notwithstanding subdivisions (c), (d), and (e), the use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide is prohibited in a wildlife habitat area.
Except as provided in subdivision (g) or (h), the use of a second-generation anticoagulant rodenticide is prohibited in this state until the director makes the certification described in subdivision (i).
Except as provided in subdivision (g) or (h), the use of diphacinone is prohibited in this state and diphacinone shall be considered a restricted material pursuant to Section 14004.5 until the director makes the certification described in subdivision (j).
Except as provided in subdivision (g) or (h), the use of chlorophacinone or warfarin is prohibited in this state and chlorophacinone and warfarin shall be considered restricted materials pursuant to Section 14004.5. The director may suspend the prohibition if the director makes the certification described in subdivision (k). Nothing in this subdivision or subdivision (k) requires the department to suspend the prohibition on chlorophacinone or warfarin described in this subdivision, complete a reevaluation of chlorophacinone or warfarin, or adopt any additional restrictions on chlorophacinone or warfarin.
State agencies are directed to encourage federal agencies to comply with subdivisions (b) to (e), inclusive.
This section does not apply to any of the following:
The use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide by a governmental agency employee who complies with Section 106925 of the Health and Safety Code, who uses a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide for public health activities.
The use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide otherwise prohibited by this section when used by an employee or contractor of a governmental agency or public utility, as defined in Section 216 of the Public Utilities Code, for purposes of protecting water supply and hydroelectric energy generating infrastructure and facilities in a manner that is consistent with all otherwise applicable federal and state laws and regulations.
The use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide by a mosquito or vector control district formed under Chapter 1 (commencing with Section 2000) of Division 3 or Chapter 8 (commencing with Section 2800) of Division 3 of the Health and Safety Code to protect the public health.
The use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide for the eradication of nonnative invasive species inhabiting or found to be present on offshore islands in a manner that is consistent with all otherwise applicable federal and state laws and regulations.
The use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide that the Department of Fish and Wildlife determines is required to control or eradicate an invasive rodent population for the protection of threatened or endangered species or their habitats.
The use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide to control an actual or potential rodent infestation associated with a public health need, as determined by a supporting declaration from the State Public Health Officer or a local public health officer. For purposes of this section, a public health need is an urgent, nonroutine situation posing a significant risk to human health in which it is documented that other rodent control alternatives, including nonchemical alternatives, are inadequate to control the rodent infestation.
The use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide for research that the department funds, pursuant to Section 6025.5, to protect the food system and the environment.
The use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide for research purposes related to the reevaluation described in paragraph (1) of subdivision (i), paragraph (1) of subdivision (j), or paragraph (1) of subdivision (k). Before using a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide in the manner described in this paragraph, a written authorization for research shall be obtained from the director. The director may specify the conditions in the authorization for research under which the research shall be conducted. The director may terminate, amend, or refuse to issue an authorization for research if the director determines any of the following:
The research may involve a hazard to the environment.
The research may be used for purposes unrelated to pesticide data development.
A violation of the authorization for research, prior authorization for research, or Division 6 (commencing with Section 11401) or this division, or a regulation adopted pursuant to either or both of those divisions, has occurred in connection with the research.
This section does not apply to the use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide in either of the following locations:
A medical waste generator, as defined in Section 117705 of the Health and Safety Code.
A facility registered annually and subject to inspection under Section 510 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 360 et seq.) and compliant with the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
The prohibitions in subdivisions (c), (d), and (e) do not apply to the use of a second-generation anticoagulant rodenticide or first-generation anticoagulant rodenticide for agricultural activities, as defined in Section 564.
For purposes of paragraph (2), “agricultural activities” include activities conducted in any of the following locations:
A warehouse used to store foods for human or animal consumption.
An agricultural food production site, including, but not limited to, a slaughterhouse or cannery.
A factory, brewery, or winery.
An agricultural production site housing water storage and conveyance facilities.
An agricultural production site housing rights-of-way and other transportation infrastructure.
After the director determines that both of the following conditions have occurred, the director shall certify to the Secretary of State that determination:
After the director determines that both of the following conditions have occurred, the director shall certify to the Secretary of State that determination:
The department has completed any pending reevaluation of diphacinone.
Consistent with the requirements of this division and regulations adopted pursuant to this division, the department, in consultation with, and with the concurrence of, the Department of Fish and Wildlife, has adopted any additional restrictions that are necessary to ensure a trend of statistically significant reductions in the percentage of wildlife exposed or mean concentration values of detectable levels of diphacinone or any of its metabolites in tested tissues of a scientifically representative sample of wildlife. These restrictions shall include a requirement to implement sustainable pest management and integrated pest management practices, such as biological control, habitat manipulation, and modification of cultural practices, before the use of diphacinone. The department, in concurrence with the Department of Fish and Wildlife, shall make a finding that the restrictions are necessary based upon the best available science, which may include reviewing data and studying samples of certain species and their populations as proxies for all potentially impacted species and populations. Substantial evidence supporting the restrictions, including any requirement to implement alternatives, shall, to the extent feasible, include, but not be limited to, analysis regarding exposure pathways, sublethal effects, species sensitivity, and the cumulative and synergistic effects of exposure to anticoagulant rodenticides, including lethal and sublethal effects on wildlife, including rare, sensitive, special status, threatened, or endangered species.
If the director determines that both of the following conditions have occurred, the director shall certify to the Secretary of State that determination:
The department has completed a reevaluation of chlorophacinone or warfarin, respectively.
Consistent with the requirements of this division and regulations adopted pursuant to this division, the department, in consultation with, and with the concurrence of, the Department of Fish and Wildlife, has adopted any additional restrictions necessary to ensure a trend of statistically significant reductions in the percentage of wildlife exposed or mean concentration values of detectable levels of chlorophacinone or warfarin, respectively, or any of their metabolites, in tested tissues of a scientifically representative sample of wildlife. These restrictions shall include a requirement to implement sustainable pest management and integrated pest management practices, such as biological control, habitat manipulation, and modification of cultural practices, before the use of chlorophacinone or warfarin, respectively. The department, in concurrence with the Department of Fish and Wildlife, shall make a finding that the restrictions are necessary based on the best available science, which may include reviewing data and studying samples of certain species and their populations as proxies for all potentially impacted species and populations. Substantial evidence supporting the restrictions, including any requirement to implement alternatives, shall, to the extent feasible, include, but not be limited to, analysis regarding exposure pathways, sublethal effects, species sensitivity, and the cumulative and synergistic effects of exposure to anticoagulant rodenticides, including lethal and sublethal effects on wildlife, including rare, sensitive, special status, threatened, or endangered species.
A pesticide use report shall be submitted to the commissioner or director on a form and in a manner prescribed by the director. The data from the pesticide use reports shall be considered in setting priorities for food monitoring, pesticide use enforcement, farm worker safety programs, environmental monitoring, pest control research, public health monitoring and research, and similar activities by the department, or by the department in cooperation with other state, regional, or local agencies with appropriate authority.
ARTICLE 10.5. Pesticides and Worker Safety [12980. - 12988.]
The Legislature hereby finds and declares that it is necessary and desirable to provide for the safe use of pesticides and for safe working conditions for farmworkers, pest control applicators, and other persons handling, storing, or applying pesticides, or working in and about pesticide-treated areas.
The Legislature further finds and declares that the development of regulations relating to pesticides and worker safety should be the joint and mutual responsibility of the Department of Food and Agriculture and the State Department of Health Services.
The Legislature further finds and declares that in carrying out the provisions of this article, the University of California, the Department of Industrial Relations, and any other similar institution or agency should be consulted.
The director shall adopt regulations to carry out the provisions of this article. Such regulations shall include, but are not limited to, all of the following subjects:
Restricting worker reentry into areas treated with pesticides determined by the director to be hazardous to worker safety by using either or both of the following:
Time limits.
Pesticide residue levels on treated plant parts determined by scientific analysis to not be a significant factor in cholinesterase depression or other health effects.
When the director has adopted regulations pursuant to both paragraphs (1) and (2), the person in control of the area treated with the pesticide shall have the option of following regulations adopted pursuant to either paragraph (1) or (2). If the person in control of the area treated with the pesticide chooses to follow regulations adopted pursuant to paragraph (2), the director may establish and charge the person a fee necessary to cover any costs of analysis or costs incurred by the director or commissioner in carrying out regulations adopted pursuant to paragraph (2). The regulations shall include a procedure for the collection of the fee, and the fee shall not exceed actual cost.
Handling of pesticides.
Hand washing facilities.
Farm storage and commercial warehousing of pesticides.
Protective devices, including, but not limited to, respirators and eyeglasses.
Posting, in English and Spanish, of fields, areas, adjacent areas or fields, or storage areas.
The State Department of Health Services shall participate in the development of any regulations adopted pursuant to this article. Such regulations that relate to health effects shall be based upon the recommendations of the State Department of Health Services. The original written recommendations of the State Department of Health Services, any subsequent revisions of those recommendations, and the supporting evidence and data upon which the recommendations were based shall be made available upon request to any person.
The director and the commissioner of each county under the direction and supervision of the director, shall enforce the provisions of this article and the regulations adopted pursuant to it. The local health officer may assist the director and the commissioner in the enforcement of the provisions of this article and any regulations adopted pursuant to it. The local health officer shall investigate any condition where a health hazard from pesticide use exists, and shall take necessary action, in cooperation with the commissioner, to abate the condition. The local health officer may call upon the State Department of Health Services for assistance pursuant to Section 105210 of the Health and Safety Code.
Any person who orders an employee to enter an area posted with a warning sign in violation of any worker safety reentry requirements promulgated pursuant to this article by the director is guilty of a misdemeanor. A violation of this article affecting any worker or workers constitutes a separate offense for each affected worker.
The director shall approve programs for training persons who handle or apply pesticides in aerial pest control operations. The training programs shall be consistent with, but not limited to, this article and may include participation by trainees in field practices or exercises dealing with the safe handling and application of pesticides and may include performance measurement of the practices and exercises.
The approved training programs shall be conducted by industry qualified instructors. Industry qualified instructors are persons approved by the director.
All persons who successfully complete an approved training program shall be issued a certificate of completion by industry qualified instructors, which shall be available for inspection by the director or a commissioner, or his or her representative. When the person completing an approved training program attended the program at the request or expense of the person’s employer, the employer shall be provided a copy of the certificate of completion, which also shall be available for inspection by the director or a commissioner, or his or her representative.
The director shall require registrants of pesticides to submit the data necessary to perform the director’s duties under this article.
No pesticide may be registered or reregistered unless the director determines that the registrant has complied with this article.
ARTICLE 11. Violations [12991. - 12995.]
It is unlawful for any person, individually or through another, in connection with any substance or mixture of substances included within the scope of this chapter, to do any of the following:
Make any material or substantial misrepresentation.
Make any false promises of a character likely to influence, induce, or deceive.
Engage in illegitimate business or dishonest dealing.
Cause to be published or distributed any false or misleading literature, or cause to be displayed any false or misleading advertisement.
Use, store, transport, handle, or dispose of any pesticide, or of any container that holds or has held a pesticide, except in compliance with regulations of the director.
Purchase for use in this state a pesticide that is labeled for agricultural use except from a person licensed as a pest control dealer pursuant to Section 12107. Persons using those products shall retain receipts of the purchase of the products for four years and make the receipts available for inspection upon request of the director or the commissioner.
It is unlawful for any person to sell any adulterated or misbranded pesticide.
In any prosecution of any agent or dealer under this section it is a complete defense to prove that the adulterated or misbranded pesticide that is the basis of the prosecution was guaranteed by the party from whom the agent or dealer purchased it to be not adulterated or misbranded.
It is unlawful for any person to manufacture, deliver, or sell any pesticide or any substance or mixture of substances that is represented to be a pesticide, or to retail any formula for a pesticide in conjunction with the sale or gift of materials that are represented to be the essential ingredients necessary to constitute a pesticide, which is not registered pursuant to this chapter, or for which the registration has been suspended or canceled, except as provided in regulations adopted by the director or as provided in the notice or order of suspension or cancellation. This section, however, does not apply to any pesticide product of a registrant that is manufactured solely for export outside this state, and which is so exported.
It is unlawful for any person to transport, destroy, or dispose of any quarantined pesticide, unless the person has received written permission from the director.
Except as provided in regulations adopted by the director or as provided in the notice or order of suspension or cancellation, it is unlawful for any person, by himself or herself or through another, to possess or use any pesticide that is not registered pursuant to this chapter, or for which registration has been suspended.
ARTICLE 12. Penalties and Injunctive Relief [12996. - 13001.]
Every person who violates any provision of this division relating to pesticides, or any regulation issued pursuant to a provision of this division relating to pesticides, is guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than five thousand dollars ($5,000) nor more than fifty thousand dollars ($50,000), or by imprisonment of not more than six months, or by both the fine and imprisonment. Upon a second or subsequent conviction of the same provision of this division relating to pesticides, a person shall be punished by a fine of not less than ten thousand dollars ($10,000) nor more than seventy-five thousand dollars ($75,000), or by imprisonment of not more than six months, or by both the fine and imprisonment. Each violation constitutes a separate offense.
Notwithstanding the penalties prescribed in subdivision (a), if the offense involves an intentional or negligent violation that created or reasonably could have created a hazard to human health or the environment, the convicted person shall be punished by imprisonment in a county jail not exceeding one year or in the state prison or by a fine of not less than fifteen thousand dollars ($15,000) nor more than one hundred thousand dollars ($100,000), or by both the fine and imprisonment.
For the purposes of this chapter:
“Office” means the Office of Environmental Health Hazard Assessment.
“Department” means the Department of Pesticide Regulation.
“Certified Unified Program Agency” or “CUPA” means the agency certified by the Secretary for Environmental Protection to implement the unified program specified in Chapter 6.11 (commencing with Section 25404) of Division 20 of the Health and Safety Code within a jurisdiction.
“Agency” means the California Environmental Protection Agency.
“Nonoccupational” means that the person exposed to the pesticide was not at the time of the exposure performing work as an employee.
“Acute” means a medical condition that involves a sudden onset of symptoms due to an illness, injury, or other medical problem that requires prompt medical attention and that has a limited duration.
“Uncompensated medical care” means the cost of care not covered by any other program, including, but not limited to copayments for medical insurance, Healthy Families Program, or Medi-Cal. Reimbursed medical costs shall not exceed 125 percent of the Medi-Cal reimbursement rates.
In lieu of seeking prosecution of any violation of this division as a misdemeanor, and the penalty prescribed in Section 12996, the director may prosecute civilly pursuant to Sections 12998 and 12999, or may levy civil penalties pursuant to Section 12999.4 or the commissioner may levy civil penalties pursuant to Section 12999.5.
In addition to any penalties paid in connection with an enforcement action taken pursuant to Sections 12996, 12997, 12999, and 12999.5, any person who is found in violation of any provision of this division related to pesticides or any regulation related to pesticides adopted pursuant to this division that results in illness or injury requiring emergency medical transport or immediate medical treatment of any individual in a nonoccupational setting from any pesticide used in the production of an agricultural commodity, shall be liable to the individual harmed or to the medical provider for the immediate costs of uncompensated medical care from acute injuries and illnesses of the exposed individual.
Any order issued in connection with a finding of a violation as described in subdivision (a) shall include the obligation to reimburse medical costs from acute illnesses and injuries of any individual requiring immediate medical treatment as a consequence of this violation to the injured individuals or their medical providers.
Any person found in violation of this section shall submit to the director within 30 days of the final determination of liability, a written plan on how they will pay individuals and medical providers for the emergency medical transport and the immediate medical costs from acute medical injuries and illnesses of all individuals requiring immediate medical treatment as a consequence of the violation. A person alleged to have violated subdivision (a) may voluntarily submit a written plan pursuant to this section prior to the determination of liability. The contents of the voluntary plan shall not be held against the person in any action to determine whether the person violated those provisions.
Any violation of this section shall be subject to the criminal and civil sanctions and penalties set forth in this division.
Payment of emergency medical costs pursuant to this section shall not preclude an affected person from filing a civil action for injuries, illnesses, or costs related to the incident. Any damage award associated with a civil action related to the incident shall be reduced by the amount the plaintiff received from this section.
Payment of emergency medical costs pursuant to this section shall not be held against the person in any action to determine whether the person violated those provisions.
For any person who provides for the immediate reimbursement of medical costs for acute medical illnesses and injuries prior to a final determination by the department, the director or agricultural commissioner may reduce, by not more than 50 percent, the fines imposed pursuant to Section 12996.5. This reduction shall not limit the responsible party’s financial obligation under this section. The department or agricultural commissioner shall attempt to complete the determination within 45 days of the incident.
The agency, in consultation with the department, the office, county agricultural commissioners, local health officers, CUPAs, and affected community members, shall by August 31, 2005, establish minimum standard protocols for the purposes of amending area plans.
The protocols shall include, but not be limited to, all of the following:
Protocols for requesting and providing immediate access to pesticide-specific information necessary to assist emergency medical services personnel in identifying pesticides that may be causing a pesticide drift exposure incident and appropriate treatments.
Protocols to delineate specific agency responsibilities and the process for responding to calls, notifying residents, and coordinating evacuation, if needed.
Protocols to establish emergency shelter procedures and locations to be used in the event evacuation is needed.
Protocols to access services in all languages known to be spoken in the affected area in accordance with Section 11135 of the Government Code.
Protocols to ensure access to health care within 24 hours of the exposure and up to a week after the exposure.
Protocols to notify medical providers regarding eligibility for reimbursement pursuant to Section 12997.5.
The CUPA or administering agency shall amend the area plan for emergency response, pursuant to subdivision (c) of Section 25503, to specifically address pesticide drift exposure and to incorporate provisions of the protocols of subdivision (b).
Upon the next scheduled update of the area plan, all CUPAs shall have incorporated a pesticide drift component into their area plan.
The minimum standard protocols developed under subdivision (a) shall be in accordance with the California Environmental Protection Agency’s guidelines.
A person who sells or uses a first-generation anticoagulant rodenticide or second-generation anticoagulant rodenticide in violation of Section 12978.7 or any regulations adopted pursuant to that section is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) per day for each violation, in addition to any other penalty established by law.
In an action brought pursuant to paragraph (1), the court may enjoin the unlawful sale or use of a first-generation anticoagulant rodenticide or second-generation anticoagulant rodenticide, and may compel specific performance of an act or course of conduct necessary to protect a person, animal, crop, or property.
Civil penalties recovered pursuant to this section shall be deposited into the Department of Pesticide Regulation Fund, and shall be available for expenditure to cover the department’s costs in administering and enforcing this section and Section 12978.7.
Any remaining civil penalties, after covering the costs described in paragraph (1), shall be available for expenditure for the purposes described in Section 6027.1.
Any person who violates this division relating to pesticides or structural pest control devices, or any regulation issued pursuant to a provision of this division relating to pesticides or structural pest control devices, is liable civilly in an amount not less than three thousand dollars ($3,000) nor more than thirty thousand dollars ($30,000) for each violation. Any person who commits a second or subsequent violation that is the same as a prior violation or similar to a prior violation or whose intentional violation resulted or reasonably could have resulted in the creation of a hazard to human health or the environment or in the disruption of the market of the crop or commodity involved, is liable civilly in an amount not less than fifteen thousand dollars ($15,000) nor more than seventy-five thousand dollars ($75,000) for each violation. Any money recovered under this section shall be paid into the Department of Pesticide Regulation Fund for use by the department in administering this division, and Division 6 (commencing with Section 11401).
Upon a complaint by the director, or by the Structural Pest Control Board in the case of violations of Chapter 7.5 (commencing with Section 15300) or regulations adopted pursuant to that chapter relating to structural pest control devices, the Attorney General may bring an action for civil penalties in any court of competent jurisdiction in this state against any person violating any provision of this division, or any regulation issued pursuant to it. The Attorney General may bring an action for civil penalties on his or her own initiative if, after examining the complaint and the evidence, he or she believes a violation has occurred.
The remedies or penalties provided by this division are in addition to the remedies or penalties available under any other law.
In lieu of civil prosecution by the director, the director may levy a civil penalty against a person violating subdivision (d) or (e) of Section 11792, Sections 12101, 12101.5, 12114, 12115, 12116, 12581, 12603, 12671, 12992, and 12993, Chapter 10 (commencing with Section 12400) of Division 6, Article 4.5 (commencing with Section 12841), Section 13186.5, Chapter 7.5 (commencing with Section 15300), or the regulations adopted pursuant to those provisions, and Sections 6560, 6562, 6564, 6568, 6574, 6576, and 6577 of Title 3 of the California Code of Regulations, of not more than fifteen thousand dollars ($15,000) for each violation.
Before a civil penalty is levied, the person charged with the violation shall be given a written notice of the proposed action, including the nature of the violation and the amount of the proposed penalty, and shall have the right to request a hearing within 20 days after receiving notice of the proposed action. A notice of the proposed action that is sent by certified mail to the last known address of the person charged shall be considered received even if delivery is refused or the notice is not accepted at that address. If a hearing is requested, notice of the time and place of the hearing shall be given at least 10 days before the date set for the hearing. Before the hearing, the person shall be given an opportunity to review the director’s evidence. At the hearing, the person shall be given the opportunity to present evidence on their own behalf. If a hearing is not timely requested, the director may take the action proposed without a hearing.
If the person against whom the director levied a civil penalty requested and appeared at a hearing, the person may seek review of the director’s decision within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
After the exhaustion of the review procedure provided in this section, the director, or the director’s representative, may file a certified copy of a final decision of the director that directs the payment of a civil penalty and, if applicable, any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. Pursuant to Section 6103 of the Government Code, the clerk of the superior court shall not charge a fee for the performance of any official service required in connection with the entry of judgment pursuant to this section.
Any money recovered under this section shall be paid into the Department of Pesticide Regulation Fund for use by the department, upon appropriation by the Legislature, in administering this division and Division 6 (commencing with Section 11401).
In lieu of civil prosecution by the director, the county agricultural commissioner may levy a civil penalty against a person violating Division 6 (commencing with Section 11401), Article 10 (commencing with Section 12971) or Article 10.5 (commencing with Section 12980) of this chapter, Section 12995, Article 1 (commencing with Section 14001) of Chapter 3, Chapter 3.7 (commencing with Section 14160), Chapter 7.5 (commencing with Section 15300), Section 29102, or a regulation adopted pursuant to any of these provisions, of not more than three thousand dollars ($3,000) for each violation. Any violation determined by the county agricultural commissioner to be a Class A violation as defined in Section 6130 of Title 3 of the California Code of Regulations is subject to a fine of not more than fifteen thousand dollars ($15,000) for each violation. It is unlawful and grounds for denial of a permit under Section 14008 for a person to refuse or neglect to pay a civil penalty levied pursuant to this section once the order is final.
If a person has received a civil penalty for pesticide drift in a school area subject to Section 11503.5 that results in a Class A violation as defined in subdivision (a), the county agricultural commissioner shall charge a fee, not to exceed fifty dollars ($50), for processing and monitoring each subsequent pesticide application that may pose a risk of pesticide drift made in a school area subject to Section 11503.5. The county agricultural commissioner shall continue to impose the fee for each subsequent application that may pose a risk of drift, until the person has completed 24 months without another Class A violation as defined in subdivision (a).
Before a civil penalty is levied, the person charged with the violation shall be given a written notice of the proposed action, including the nature of the violation and the amount of the proposed penalty, and may have a hearing within 20 days after receiving notice of the proposed action. A notice of the proposed action that is sent by certified mail to the last known address of the person charged shall be considered received even if delivery is refused or the notice is not accepted at that address. If a hearing is requested, notice of the time and place of the hearing shall be given at least 10 days before the date set for the hearing. At the hearing, the person shall be given an opportunity to review the county agricultural commissioner’s evidence and to present evidence on their own behalf. If a hearing is not timely requested, the county agricultural commissioner may take the action proposed without a hearing.
If the person on whom the county agricultural commissioner levied a civil penalty requested and appeared at a hearing, the person may appeal the county agricultural commissioner’s decision to the director within 30 days of the date of receiving a copy of the county agricultural commissioner’s decision. The following procedures apply to the appeal:
The appeal shall be in writing and signed by the appellant or their authorized agent, state the grounds for the appeal, and include a copy of the county agricultural commissioner’s decision. The appellant shall file a copy of the appeal with the county agricultural commissioner at the same time it is filed with the director.
The appellant and the county agricultural commissioner may, at the time of filing the appeal or within 10 days thereafter or at a later time prescribed by the director, present the record of the hearing, including written evidence that was submitted at the hearing, and a written argument to the director stating grounds for affirming, modifying, or reversing the county agricultural commissioner’s decision.
The director may grant oral arguments upon application made at the time written arguments are filed.
If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days before the date set for the oral argument. The times may be altered by mutual agreement of the appellant, the county agricultural commissioner, and the director.
The director shall decide the appeal on the record of the hearing, including the written evidence and the written argument described in paragraph (2), that the director has received. If the director finds substantial evidence in the record to support the county agricultural commissioner’s decision, the director shall affirm the decision.
The director shall render a written decision within 45 days of the date of appeal or within 15 days of the date of oral arguments or as soon thereafter as practical.
On an appeal pursuant to this section, the director may affirm the county agricultural commissioner’s decision, modify the county agricultural commissioner’s decision by reducing or increasing the amount of the penalty levied so that it is within the director’s guidelines for imposing civil penalties, or reverse the county agricultural commissioner’s decision. A civil penalty increased by the director shall not be higher than that proposed in the county agricultural commissioner’s notice of proposed action given pursuant to subdivision (c). A copy of the director’s decision shall be delivered or mailed to the appellant and the county agricultural commissioner.
Any person who does not request a hearing pursuant to subdivision (c) may not file an appeal pursuant to this subdivision.
Review of a decision of the director may be sought by the appellant within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
The county agricultural commissioner may levy a civil penalty pursuant to subdivisions (a), (c), and (d) against a person violating paragraph (1), (2), or (8) of subdivision (a) of Section 1695 of the Labor Code, that pertains to registration with the county agricultural commissioner, carrying proof of that registration, and filing changes of address with the county agricultural commissioner.
After the exhaustion of the appeal and review procedures provided in this section, the county agricultural commissioner or their representative may file a certified copy of a final decision of the county agricultural commissioner that directs the payment of a civil penalty and, if applicable, a copy of any decision of the director or their authorized representative rendered on an appeal from the county agricultural commissioner’s decision and a copy of any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. Fees shall not be charged by the clerk of the superior court for the performance of official service required in connection with the entry of judgment pursuant to this section.
For purposes of this section, the following terms have the following meanings:
“Multijurisdictional priority investigation” means a priority investigation involving more than one county or a priority investigation involving a person that is the subject of priority investigations in more than one county.
“Priority investigation” has the same meaning as in the 2005 Cooperative Agreement, or the most current version of the Cooperative Agreement, between the department, the California Agricultural Commissioners and Sealers Association, and the United States Environmental Protection Agency, Region 9.
In lieu of a civil penalty levied by the county agricultural commissioner, the director may levy a civil penalty of not more than twenty thousand dollars ($20,000) for each violation described in subdivision (c), or may refer any of those violations to the proper enforcement agency, including the district attorney of the county where the violations occurred or the Attorney General.
The director may initiate and maintain an enforcement action for a violation of a statute or implementing regulation described in Section 12999.5 meeting any of the following conditions:
Where the county agricultural commissioner and director agree that enforcement by the department is appropriate.
After consultation with the county agricultural commissioner for either of the following violations:
A violation related to a multijurisdictional priority investigation involving human or environmental health effects.
A violation that caused a health, property, or environmental hazard where the director finds the county agricultural commissioner has failed to discharge their duties pursuant to Section 2281.
Before a civil penalty is levied, the person charged with the violation shall be given a written notice of the proposed action, including the nature of the violation and the amount of the proposed penalty, and shall have the right to request a hearing within 20 days after receiving notice of the proposed action. A notice of the proposed action that is sent by certified mail to the last known address of the person charged shall be considered received even if delivery is refused or the notice is not accepted at that address. If a hearing is requested, notice of the time and place of the hearing shall be given at least 10 days before the date set for the hearing. Before the hearing, the person shall be given an opportunity to review the director’s evidence. At the hearing, the person shall be given the opportunity to present evidence on their own behalf. If a hearing is not timely requested, the director may take the action proposed without a hearing.
If the person against whom the director levied a civil penalty requested and appeared at a hearing, the person may seek judicial review of the director’s decision within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
After exhaustion of the review procedures provided in this section, the director, or the director’s representative, may file a certified copy of a final decision of the director that directs the payment of a civil penalty and, if applicable, any order that denies a petition for writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. Pursuant to Section 6103 of the Government Code, the clerk of the superior court shall not charge a fee for the performance of any official service required in connection with the entry of judgment pursuant to this section.
Any money recovered under this section shall be paid to the investigating county agricultural commissioner to reimburse the cost of the investigation with the remainder going into the Department of Pesticide Regulation Fund for use by the department, upon appropriation, in administering this division and Division 6 (commencing with Section 11401).
This section shall only apply to violations that occur on or after January 1, 2023.
Except as provided in subdivisions (b) and (c), an action brought pursuant to this article shall be commenced by the director, the commissioner, the Attorney General, the district attorney, the city prosecutor, or the city attorney, as the case may be, within three years of the occurrence of the violation.
When a commissioner submits a completed investigation to the director for action by the director or the Attorney General, the action shall be commenced within one year of that submission. However, this subdivision does not preclude the director from returning the investigation to the commissioner for action to be commenced by the commissioner, the district attorney, the city prosecutor, or the city attorney, as provided in subdivision (a).
An action brought by the director to collect unpaid mill assessments and delinquent fees required by Article 4.5 (commencing with Section 12841) or an action brought by the director to collect civil penalties pursuant to Section 12999.4 for violations of Article 4.5 (commencing with Section 12841), Section 12992, Section 12993, or Section 12995 shall be commenced within four years of the occurrence of the violation, except as provided in paragraph (2).
An action brought by the director pursuant to Section 12999.4 or 12998 for violations of Article 4.5 (commencing with Section 12841) or Section 12992, 12993, or 12995 that are discovered during the course of an audit performed pursuant to Section 12842 shall be commenced within two years from the date of audit completion and may be brought for a violation occurring within four years of the commencement of the audit.
The commissioner or director may bring an action to enjoin the violation or the threatened violation of any order made pursuant to this division in the superior court in the county in which the order is issued or the violation occurs or is threatened, and the court may enjoin the violation or threatened violation upon that showing and without further evidence of irreparable injury. The court may compel specific performance of any acts or course of conduct necessary to protect persons, animals, crops, or property.
The director may, by regulation, adjust the level of statutory minimum and maximum civil monetary penalties provided under this article and in Section 11893 to account for inflation. The director shall make inflation adjustments consistent with the formula used by the United States Environmental Protection Agency pursuant to federal law for civil monetary penalties inflation adjustment for civil penalties provided under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 135 et seq.).
ARTICLE 13. Cease and Desist [13101. - 13102.]
The director, upon a finding that the use, handling, delivery, or sale of a pesticide in violation of any provision of this division, or any regulation issued pursuant to it, is taking place, or appears imminent, and that activity, if allowed to proceed, will present an immediate hazard or cause irreparable damage, may issue an order to the persons responsible for that activity to cease and desist from further commission of the violation.
The agricultural commissioner, upon a finding that the use, handling, delivery, or sale of a pesticide in violation of any provision of this division, or any regulation issued pursuant to it, is taking place, or appears imminent, and that activity, if allowed to proceed, will present an immediate hazard or cause irreparable damage, may issue an order to the persons responsible for that activity to cease and desist from further commission of the violation.
Any person aggrieved by a cease and desist order issued by an agricultural commissioner may appeal the order to the director, who shall affirm, modify, or rescind the order. The order of the agricultural commissioner shall remain in force during the appeal to the director, and until the director’s decision has been rendered.
ARTICLE 14. Birth Defect Prevention [13121. - 13135.]
This article shall be known and may be cited as the Birth Defect Prevention Act of 1984.
It is the purpose of the Legislature in enacting this chapter to prevent pesticide induced abortions, birth defects, and infertility.
For purposes of this chapter, the following terms mean:
“Adverse reproductive effect” means a statistically significant adverse effect on parental reproductive performance and the growth and development of offspring, including gonadal function, conception, and parturition; abortions; birth defects; stillbirths; and resorptions.
“Data gap” means that the department does not have on file a full set of valid mandatory health effects studies.
“Mandatory health effects study” means adverse reproductive effect, chronic toxicity, mutagenicity, neurotoxicity, oncogenicity, and teratogenicity studies required for full registration or licensing of pesticides in California, as of July 1, 1983.
“Teratogenic” means the property of a substance or mixture of substances to produce or induce functional deviations or developmental anomalies, not heritable, in or on an animal embryo or fetus.
“Mutagenic effect” means the property of a substance or mixture of substances to induce changes in the genetic complement of either somatic or germinal tissue in subsequent generations.
“Chronic toxicity” means the property of a substance or mixture of substances to cause adverse effects in an organism upon repeated or continuous exposure over a period of at least one-half the lifetime of that organism.
“Oncogenic” means the property of a substance or a mixture of substances to produce or induce benign or malignant tumor formations in living animals.
“Neurotoxic effect” means any adverse effect on the nervous system such as delayed-onset locomotor ataxia resulting from single administration of the test substance, repeated once if necessary.
“Initiation” means that the mandatory health effects study or any necessary preliminary studies, such as pilot studies or range finding studies, have been commenced.
“Data generator” means a person who has completed and filed with the director a data commitment status report.
“Completion” means that the study has been finished, the data has been analyzed, and the final report of the results, including all exhibits, has been prepared and submitted to the department.
“Submitted” means deliverance of a completed study to the department. A study shall be deemed to be submitted until it has been determined by the department to be unacceptable and not capable of being upgraded.
“Suspend” means the director has issued a notice of intent to suspend the registration of a pesticide product. The director shall issue a suspension order at the earliest possible time.
To the extent feasible, health effects studies shall be conducted in accordance with standards and protocols established pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 135 et seq.).
No new active pesticide ingredient shall be conditionally registered or licensed when any of the mandatory health effects studies, as defined in subdivision (c) of Section 13123, is missing, incomplete, or of questionable validity unless the registration is based on previous consultation with the State Director of Health Services and the Director of Industrial Relations.
Not later than December 31, 1985, the department shall identify 200 pesticide active ingredients which the department determines have the most significant data gaps and widespread use and which are suspected to be hazardous to people. Not later than 30 days after the report issued pursuant to former Section 13125, as added by Chapter 669 of the Statutes of 1984, the department shall notify each registrant of a pesticide product containing any of the identified 200 pesticide active ingredients of the applicable data gap required to be filled pursuant to this section.
Not later than December 31, 1985, the department shall also adopt a timetable for the filling of all data gaps on all pesticide active ingredients, other than those identified by the department pursuant to subdivision (a), which are currently registered or licensed in California. The department shall notify registrants of the applicable data gaps and the scheduled time to initiate and complete studies as provided in the timetable.
Not later than September 1, 1986, the department shall determine whether a test has been initiated to fill each of the data gaps for each pesticide active ingredient identified in subdivision (a). If no test has been initiated, the department shall fill data gaps in accordance with procedures provided in subparagraph (B) of paragraph (2) of subsection (c) of Section 136a of Title 7 of the United States Code. In order to carry out this section, the director has the same authority to require information from registrants of active pesticide ingredients and to suspend registration that the Administrator of the Environmental Protection Agency has pursuant to subparagraph (B) of paragraph (2) of subsection (c) of Section 136a of Title 7 of the United States Code. If a hearing is requested regarding the proposed suspension of registration, it shall be conducted pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. On or before July 1, 1986, the director shall, by regulation, prescribe procedures for resolving disputes or funding the filling of data gaps. The procedures may include mediation and arbitration. The arbitration procedures, insofar as practical, shall be consistent with the federal act, or otherwise shall be in accordance with the commercial arbitration rules established by the American Arbitration Association. The procedures shall be established so as to resolve any dispute within the timetable established in subdivision (a).
The department shall also obtain the data which is identified in subdivision (b), according to the timetable and procedures specified in this section.
The director shall review the timetable established by the Environmental Protection Agency for the accelerated registration program under amendments effective in 1989 to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
This section does not apply to any product which the director determines has limited use or that substantial economic hardship would result to users due to unavailability of the product and there is not significant exposure to the public or workers and the product is otherwise in compliance with federal law.
The director may not, pursuant to this subdivision, exempt all pesticide products containing the same pesticide active ingredient unless it is determined that the pesticide active ingredient has only limited use, there is insignificant exposure to workers or the public, and the products are otherwise in compliance with federal law. Any exemption issued pursuant to this paragraph shall expire at the end of three years after it is issued.
Whenever the director exercises the authority provided in paragraph (1) of subdivision (e), he or she shall give public notice of the action stating the reasons for exempting the pesticide product from the data requirements of this article. Copies of this notice shall be provided to the appropriate policy committees of the Legislature.
Whenever the director acts pursuant to paragraph (2) of subdivision (e), the director shall furnish not less than 30 days’ public notice of the proposed action, stating the reasons for exempting the pesticide product from the data requirements of this article and allowing public comment thereon. Copies of the notice and the final decision shall be provided to the appropriate policy committees of the Legislature.
The director shall, on January 15, 1992, issue a notice of the impending suspension of the registration of any pesticide product containing an active ingredient identified pursuant to subdivision (a) of Section 13127 for which the registrant has not submitted the required data by December 31, 1991. The data generator or registrant may petition the director within 30 days of notification of impending suspension of registration for deferral of the suspension pursuant to Section 13127.3. The director shall act upon such a petition at the earliest possible time and, upon denial of the petition, suspend the registration of each such product.
The director shall grant an extension of time for submission of the required data if, and only if, the director, with the concurrence of the Secretary for Environmental Protection, makes a finding that both of the following conditions are satisfied:
The registrant has submitted at least eight of the mandatory health effects studies, and has initiated the studies required to fill the remaining data gaps by January 15, 1992, unless the registrant can demonstrate to the satisfaction of the director that it failed to have eight studies submitted, and the remaining studies initiated, in accordance with this paragraph because not more than two studies were delayed due to specific, written direction of the department based upon a written evaluation by a department toxicologist.
That the registrant has taken appropriate steps to meet the requirements of this article. To determine whether appropriate steps have been taken, the director shall consider the registrant’s timely response to data call-ins on other active ingredients contained in products registered with the department pursuant to this article and pursuant to Article 15 (commencing with Section 13141), and whether the registrant has responded in a timely and appropriate manner to notices and correspondence from the department relating to data call-ins and has taken appropriate measures to address study deficiencies identified by the department.
A registrant shall not be considered to have taken the appropriate steps, as provided in subdivision (a), if the registrant has failed to meet the deadlines established by this article due to efforts to coordinate compliance with federal data requirements.
Notwithstanding subdivision (a) of Section 13127.3, if the director finds that delays in submitting the mandatory health effects studies were primarily caused by actions of the department, the director, with the concurrence of the Secretary for Environmental Protection, may extend the deadlines for submitting the mandatory health effects studies for the following active ingredients creosote, pentachlorophenol, dicamba, para-dichlorobenzene, methyl bromide, napropamide, petroleum distillates, and arsenic pentoxide/trioxide. Registrants of these products shall submit the required studies in a timely manner, but in no case later than the time allowed in Section 13127.92.
Notwithstanding any other provision of law, none of the following pesticide products shall remain registered in this state:
Except as specified in subdivision (b), no pesticide product containing an active ingredient identified pursuant to subdivision (a) of Section 13127 for which the required studies have not been submitted by March 30, 1996, shall remain registered after that date.
No pesticide product containing methyl bromide or pentachlorophenol for which the required studies have not been submitted by December 31, 1997, shall remain registered after that date.
The director, with the concurrence of the Secretary for Environmental Protection, may defer the suspension of registration of a pesticide product, as provided in Section 13127.2, if both of the following occur:
The director receives a petition from the registrant or any other person requesting a deferral of suspension.
The director makes a written finding of one of the following:
Suspension of the registration of the product would cause substantial economic hardship to the users of the product, that there would be no significant, unmitigated human exposure to the product, and that no feasible alternatives to the product are available.
Suspension of the registration of the product would be more detrimental to the agricultural or nonagricultural environment than continued use of the product, that there would be no significant, unmitigated human exposure to the product, and that no feasible alternatives to the product are available.
Suspension of the registration of the product would result in significant risk to the public health and that no feasible alternatives to the product are available.
The director shall limit the use of any product granted a deferral of suspension pursuant to paragraph (2) of subdivision (a) to specific uses that conform to the director’s findings pursuant to paragraph (2) of subdivision (a).
The director shall levy a charge on data generators of up to one thousand dollars ($1,000) per day for each day a data gap continues to exist after the date the director issues a deferral of suspension of registration pursuant to Section 13127.5. In establishing the amount of the charge, the director shall consider the number of outstanding studies, the registrant’s timely response to data call-ins on other products registered with the department pursuant to this article, and whether the registrant has responded in a timely and appropriate manner to notices and correspondence from the department relating to data call-ins, and whether the registrant has taken appropriate measures to address study deficiencies identified by the department. If the charge levied on the data generator is not paid, all products containing that active ingredient shall be suspended. Revenues collected from the levying of charges shall be deposited in the Department of Pesticide Regulation Fund.
A suspension of registration of a pesticide product containing any of the active ingredients identified pursuant to subdivision (a) of Section 13127 shall be revoked when the director determines that the registrant has submitted all of the mandatory health effects studies. If, upon completion of the review of the studies, the director determines that a data gap still exists, the director shall suspend the registration.
If at any time after January 1, 1992, the registrant meets the requirements of subdivision (a) of Section 13127.3, notwithstanding the date specified in paragraph (1) of subdivision (a) of Section 13127.3, the director shall revoke the suspension, and shall levy a charge pursuant to Section 13127.6 or, if a charge has already been levied on a registrant, the director may revise the charge in light of the registrant’s compliance with the requirements of this article and Article 15 (commencing with Section 13141).
The director may modify the amount of the charge levied pursuant to Section 13127.6 upon the initiation or submission of any health effects studies required pursuant to this article.
For each mandatory health effects study that is required for each active ingredient identified pursuant to subdivision (a) of Section 13127, the registrant shall submit to the department a progress report in December of each year until the study is completed.
The director shall suspend the registration of any pesticide product that contains an active ingredient identified pursuant to subdivision (a) of Section 13127 for which the registrant fails to do any of the following:
Respond to the director’s notification of a data gap.
Submit progress reports as required by Section 13127.9.
Demonstrate reasonable progress toward completion of all the mandatory health effects studies.
Mandatory health effects studies shall be completed in accordance with the following timetable:
Forty-eight months for oncogenicity, chronic feeding, and reproduction studies.
Twenty-four months for teratogenicity and neurotoxicity studies.
Twelve months for mutagenicity studies.
A deferral of suspension of registration issued pursuant to Section 13127.5 shall be subject to an annual review by the director and shall be limited to the time necessary to complete the required studies, and shall in no case exceed four years with the time tolling from the date that the registrant petitioned for an extension.
Any extension of time for submission of the mandatory health effects studies granted pursuant to Section 13127.5 shall be canceled by June 15, 1993, and the registration suspended for the affected ingredient, if the registrant fails to initiate the required studies by June 15, 1992.
No applicant for registration or current registrant of a pesticide who proposes to purchase or purchases a registered pesticide from another producer in order to formulate the purchased pesticide into an end use product shall be required pursuant to Section 13127 to submit or cite mandatory health effect data pertaining to the safety of the purchased product or to offer to pay reasonable compensation for the use of any such data if the producer is engaged in fulfilling the requirements of Section 13127.
If the director, after evaluation of the health effects study of an active ingredient, finds that a pesticide product containing the active ingredient presents significant adverse health effects, including reproduction, birth defects, or infertility abnormalities, the director shall take cancellation or suspension action against the product pursuant to Section 12825 or 12826.
The State Director of Health Services shall have access to mandatory health effects studies and other health effects studies on file at the Department of Food and Agriculture, and may, based upon the determination of the State Director of Health Services, provide advice, consultation, and recommendations concerning the risks to human health associated wth exposure to the substances tested.
Notwithstanding subdivision (b) of Section 13127, the time permitted by the director for submitting data to fill a data gap shall be as follows:
For oncogenicity studies and chronic feeding studies, 48 months.
For reproduction studies, 48 months.
For teratogenicity and neurotoxicity studies, 24 months.
For mutagenicity studies, 12 months.
The time permitted by the director for submitting data to fill a data gap shall commence upon the date the department notifies the registrant of the data gap.
Notwithstanding the time limit established in subdivision (a) for submitting data to fill a data gap, the department may, with the concurrence of the Office of Environmental Health Hazard Assessment, grant an extension of time to complete the required studies, upon a written finding that events beyond the control of the persons responsible for submitting the data prevent submission of the data within the prescribed time, and that those persons have made a good faith effort to complete the studies within the prescribed time. Not more than one extension of time per data requirement may be granted to complete the required studies. The length of an extension granted pursuant to this subdivision shall be limited to the time necessary to complete the studies, not to exceed the length of time specified in subdivision (a) for conducting the studies.
Not later than March 1, 1992, the director shall notify registrants of the data requirements, and the guidelines the director intends to use in reviewing studies submitted pursuant to subdivision (b) of Section 13127, for all pesticide active ingredients other than those identified pursuant to subdivision (a) of Section 13127.
Not later than 90 calendar days after the date of notification of the data requirements, each registrant shall do one of the following:
Inform the department, in a manner prescribed by the director, of how the registrant will comply with the data requirements.
File a written objection, accompanied by any supporting evidence and arguments, to all or part of the director’s notice of data requirements. The objection authorized by this paragraph shall be the exclusive opportunity for a registrant to object to the director’s notice of data requirements.
The director may consider and grant a request by a registrant to initiate the studies necessary to comply with the data requirements in accordance with a schedule established by the United States Environmental Protection Agency. In no event shall a registrant be authorized pursuant to this subdivision to initiate the studies necessary for that compliance after January 1, 1994.
Prior to March 1, 1992, or in response to a written objection filed pursuant to paragraph (2) of subdivision (b) of Section 13131.1, the department may determine, with the concurrence of the Office of Environmental Health Hazard Assessment, that one or more of the mandatory health effects studies are not required in order to evaluate pesticide active ingredients other than those identified pursuant to subdivision (a) of Section 13127. This determination may be made only in accordance with one or more of the following criteria:
The ingredient has been classified as “Generally Recognized as Safe” by the United States Food and Drug Administration.
The study is not physically possible due to the nature of the ingredient.
The department has on file toxicological data that is adequate for the assessment of the potential adverse health effects of the ingredient, and the studies relied upon for that purpose are of the same study type, are scientifically valid, and, when taken together, are of a power and sensitivity equivalent to the studies that would be waived pursuant to this subdivision.
The director may, in conjunction with the Office of Environmental Health Hazard Assessment, develop regulations for modification of mandatory health effects studies.
If the Office of Environmental Health Hazard Assessment does not concur with the determination of the department pursuant to Section 13131.2, the issue shall be decided by a majority of the membership of a panel consisting of the following persons:
An appointee of the State Director of Health Services who has expertise in toxicology.
An appointee of the President of the University of California who has expertise in toxicology.
An appointee of the Secretary for Environmental Protection who has expertise in toxicology.
On or before January 1, 1994, the director shall issue a final notice of data gaps required to be filled for all pesticide active ingredients other than those identified pursuant to subdivision (a) of Section 13127. This notice shall be the department’s final determination of the data gaps required to be filled.
Not later than 90 calendar days after the date the final notice of data gaps is issued pursuant to subdivision (a), each registrant shall inform the department, in a manner prescribed by the director, how the registrant will fill the data gap, including a proposed schedule for initiation, completion, and submittal of all required studies.
The director shall suspend the registration of any pesticide containing an active ingredient for which the director notifies a registrant pursuant to Section 13131.1 and for which the registrant or data generator, in the judgment of the director, fails to respond appropriately or fails to provide evidence that it is taking appropriate steps to secure the data that are required pursuant to Section 13131.1 or the final notice of data gaps pursuant to Section 13131.4.
If any provision of this article or the application thereof to any person or circumstances is held invalid, this invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.
The department, in cooperation with the State Department of Health Services, shall conduct an assessment of dietary risks associated with the consumption of produce and processed foods treated with pesticides. This assessment shall integrate adequate data on acute effects and the mandatory health effects studies specified in subdivision (c) of Section 13123, appropriate dietary consumption estimates, and relevant residue data based on the department’s and the State Department of Health Services’ monitoring data and appropriate field experimental and food technology information to quantify consumer risk. Differences in age, sex, ethnic, and regional consumption patterns shall be considered. The department shall submit each risk assessment to the State Department of Health Services, with necessary supporting documentation, for peer review, which shall consider the adequacy of public health protection. The State Department of Health Services may provide comments to the department. The department shall formally respond to all of the comments made by the State Department of Health Services. The department shall modify the risk assessment to incorporate the comments as deemed appropriate by the director. All correspondence between the department and the State Department of Health Services in this matter shall be made available to any person, upon request, pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
The department shall consider those pesticides designated for priority food monitoring pursuant to Section 12535 and the results of the department’s or the State Department of Health Services’ monitoring in establishing priorities for the dietary risk assessments.
If the department lacks adequate data on the acute effects of pesticide active ingredients or mandatory health effects studies specified in subdivision (c) of Section 13123 necessary to accurately estimate dietary risk, the department shall require the appropriate data to be submitted by the registrant of products whose labels include food uses. This subdivision shall not be construed to affect the timeframes established pursuant to Section 13127.
No applicant for registration, or current registrant, of a pesticide who proposes to purchase or purchases a registered pesticide from another producer in order to formulate the purchased pesticide into an end use product shall be required to submit or cite data pursuant to this section or offer to pay reasonable compensation for the use of that type of data if the producer is engaged in fulfilling the data requirements of this section.
If the department finds that any pesticide use represents a dietary risk that is deleterious to the health of humans, the department shall prohibit or take action to modify that use or modify the tolerance pursuant to Section 12561, or both, as necessary to protect the public.
The department and the State Department of Health Services shall jointly review the existing federal and state pesticide registration and food safety system and determine if the existing programs adequately protect infants and children from dietary exposure to pesticide residues. The review shall commence as early as possible in 1990, so that any policy or administrative adjustments determined to be necessary as a result of the joint review can be made on a timely basis. The department shall consult with the University of California and other qualified public and private entities in conducting the joint review. The joint review shall continue for a sufficient time in order to evaluate the report of infant exposure to pesticide residues, which is presently being undertaken by the National Academy of Sciences. Within six months of the official release of the National Academy of Sciences’ study, the department shall finalize a report describing the evaluation that was conducted pursuant to this section, including any recommendations for modification of the existing regulatory system in order to adequately protect infants and children.
ARTICLE 15. The Pesticide Contamination Prevention Act [13141. - 13152.]
The Legislature finds and declares all of the following:
It is the right of every citizen in this state to drink safe, potable, wholesome, and pure drinking water.
The health and economic prosperity of rural communities and individual farm families in the state are threatened by contaminated drinking water supplies because of their proximity to the use of pesticides.
Pesticide contaminants and other organic chemicals are being found at an ever increasing rate in underground drinking water supplies.
The United States Environmental Protection Agency has concluded that evidence of relatively localized levels of pesticide pollution should be treated as a warning of more widespread, future contamination.
Groundwater once polluted cannot be easily cleaned up; thus, there is a considerable potential that groundwater pollution will continue long after actions have been taken to restrict application of the pesticide to land.
Due to the potential widespread exposure to public drinking water supplies from pesticide applications to the land and the resultant risk to public health and welfare, the potential for pollution of groundwater due to pesticide use must be considered in the registration, renewal, and reregistration process.
It is the purpose of this article to prevent further pesticide pollution of the groundwater aquifers of this state which may be used for drinking water supplies.
For purposes of this article, the following definitions apply:
“Active ingredient” has the same meaning as defined in Section 136 of Title 7 of the United States Code.
“Agricultural use” has the same meaning as defined in Section 11408.
“Board” means the State Water Resources Control Board.
“Chemigation” means a method of irrigation whereby a pesticide is mixed with irrigation water before the water is applied to the crop or to the soil.
“Degradation product” means a substance resulting from the transformation of a pesticide by physicochemical or biochemical means.
“Groundwater protection data gap” means that, for a particular pesticide, the director, after study, has been unable to determine that each study required pursuant to subdivision (a) of Section 13143 has been submitted or that each study submitted pursuant to subdivision (a) of Section 13143 is valid, complete, and adequate.
“Henry’s Law constant” is an indicator of the escaping tendency of dilute solutes from water and is approximated by the ratio of the vapor pressure to the water solubility at the same temperature.
“Pesticide” is defined in Section 12753.
“Pesticide registrant” means a person that has registered a pesticide pursuant to this chapter.
“Pollute” means to introduce a pesticide product into the groundwaters of the state resulting in an active ingredient, other specified ingredient, or a degradation product of a pesticide above a level that does not cause adverse health effects, accounting for an adequate margin of safety.
“Pollution” means the consequence of polluting.
“Soil adsorption coefficient” is a measure of the tendency of pesticides, or their biologically active transformation products, to bond to the surfaces of soil particles.
“Soil microbial zone” means the zone of the soil below which the activity of microbial species is so reduced that it has no significant effect on pesticide breakdown.
Not later than December 1, 1986, a person that has registered a pesticide in California for agricultural use shall submit to the director the information prescribed in this subdivision. The information shall be submitted for each active ingredient in each pesticide registered. The registrant shall submit all of the following information:
Water solubility.
Vapor pressure.
Octanol-water partition coefficient.
The soil adsorption coefficient.
Henry’s Law constant.
Dissipation studies, including hydrolysis, photolysis, aerobic and anaerobic soil metabolism, and field dissipation, under California or similar environmental use conditions.
Any additional information the director determines is necessary.
The director also may require the information prescribed in subdivision (a) for other specified ingredients and degradation products of an active ingredient in any pesticide. The director shall also require this information when the State Department of Health Services or the board submits a written request for the information to the director, if the State Department of Health Services or the board specifies the reasons why it considers the information necessary. The director shall deny the request upon a written finding that, based on available scientific evidence, the request would not further the purposes of this article.
All information submitted pursuant to subdivision (a) shall be presented in English and summarized in tabular form on no more than three sheets of paper with the actual studies, including methods and protocols attached. All information , at a minimum, shall meet the testing methods and reporting requirements provided by the Environmental Protection Agency Pesticide Assessment Guidelines, Subdivision D Series 60 to 64, inclusive, for product chemistry and Subdivision N Series 161 to 164, inclusive, for environmental fate, including information required for degradation products in specific studies. With prior approval from the director, registrants may use specified alternative protocols as permitted by the United States Environmental Protection Agency guidelines, if the director finds use of the protocol is consistent with, and accomplishes the objectives of, this article. Studies conducted on active ingredients in the formulation of pesticides shall meet the same testing methods as required for studies conducted on active ingredients. The department, in consultation with the board, in addition, may require specified testing protocols that are specific to California soil and climatic conditions. The director may give a pesticide registrant an extension of up to two years if it determines that this additional time is necessary and warranted to complete the studies required in paragraph (6) of subdivision (a). No extension of the deadline for these studies shall go beyond December 1, 1989. When seeking the extension, the registrant shall submit to the director a written report on the current status of the dissipation studies for which the extension is being sought. For registrants granted an extension pursuant to this section, Section 13145 shall be effective upon the completion date established by the director.
The director may grant the registrant an extension beyond the one authorized in subdivision (c), if all of the following conditions are met:
The registrant submits a written request to the director for an extension beyond the one granted pursuant to subdivision (c). The request shall include the reasons why the extension is necessary and the findings produced by the study up to the time the request is made.
The director finds that the registrant has made every effort to complete the studies required in paragraph (6) of subdivision (a) within the required time limits of the extension granted pursuant to subdivision (c) and that those studies could not be completed within the required time limits due to circumstances beyond the control of the registrant.
The director establishes a final deadline, not to exceed one year beyond the time limit of the extension granted pursuant to subdivision (c), and a schedule of progress by which the registrant shall complete the studies required in paragraph (6) of subdivision (a).
After December 1, 1986, no registration of any new pesticide shall be granted unless the applicant submits all of the information required by the director pursuant to this article and the director finds that the information meets the requirements of this article.
The department shall establish specific numerical values for water solubility, soil adsorption coefficient (Koc), hydrolysis, aerobic and anaerobic soil metabolism, and field dissipation. The values established by the department shall be at least equal to those established by the Environmental Protection Agency. The department shall revise the numerical values when the department finds that the revision is necessary to protect the groundwater of the state. The numerical values established or revised by the department shall always be at least as stringent as the values being used by the Environmental Protection Agency at the time the values are established or revised by the department.
On or before December 31, 2004, and updated at least annually thereafter, the director shall post the following information on the department’s Internet Web site for each pesticide registered for agricultural use and during years that specific numerical values are revised:
A list of each active ingredient, other specified ingredient, or degradation product of an active ingredient of a pesticide for which there is a groundwater protection data gap.
The Groundwater Protection List established pursuant to subdivision (d) of Section 13145.
For each pesticide listed pursuant to paragraph (2) for which information is available, a list of the amount sold in California during the most recent year for which sales information is available and where and for what purpose the pesticide was used, when this information is available in the pesticide use report.
The department shall determine, to the extent possible, the toxicological significance of the pesticides listed in the Groundwater Protection List.
Any registrant of a pesticide identified in paragraph (1) of subdivision (b) of Section 13144 is subject to a fine of up to ten thousand dollars ($10,000) for each day the groundwater protection data gap exists. In determining the amount of the fine, the director shall consider both of the following:
The extent to which the registrant has made every effort to submit valid, complete, and adequate information within the required time limits.
Circumstances beyond the control of the registrant that have prevented the registrant from submitting valid, complete, and adequate information within the required time limits.
If there is a dispute between the director and a registrant regarding the existence of a groundwater protection data gap and the director desires to levy a fine on the registrant pursuant to this section, the director shall submit the issues of the dispute to the subcommittee created pursuant to subdivision (b) of Section 13150. The subcommittee shall review the evidence submitted by the registrant and the director and make recommendations to the director on whether or not the groundwater data gap exists.
Subdivisions (a) and (b) shall not apply to pesticide products whose registration has lapsed or has been canceled, or to products that have been granted a current extension pursuant to Section 13143.
The director shall, by regulation, establish the Groundwater Protection List, which shall include each active ingredient, other specified ingredient, or degradation product of a pesticide that, when applied, has the potential to pollute groundwater.
The director, in consultation with the subcommittee created pursuant to subdivision (b) of Section 13150, shall develop a peer reviewed method to determine the potential of a pesticide to pollute groundwater using specific numerical values established pursuant to subdivision (a) of Section 13144. The director may revise this method, subject to peer review. The peer review shall be conducted using the same process as described in Section 57004 of the Health and Safety Code. When a chemical is listed by regulation using this method, no further peer review of the method is required.
Each active ingredient, other specified ingredient, or degradation product of a pesticide on the Groundwater Protection List that is detected pursuant to Sections 13148 and 13149 and determined to be a result of lawful agricultural use shall be regulated to prevent groundwater pollution in accordance with this article.
Any person who uses a pesticide that has been placed on the Groundwater Protection List and does not file a report pursuant to Section 12979, is required to report to the county agricultural commissioner the use of the pesticide on a form prescribed by the director. The reporting deadline shall conform to the deadline established for the reporting of the use of restricted materials.
The director shall not register or renew the registration of a pesticide intended to be applied to or injected into the ground by ground-based application equipment or by chemigation after December 1, 1988, if there is a groundwater protection data gap for that pesticide, unless the registrant has been granted a current extension pursuant to Section 13143.
The director shall not register or renew the registration of a pesticide intended for use with other than ground-based application equipment after December 1, 1989, if there is a groundwater protection data gap for that pesticide, unless the registrant has been granted a current extension pursuant to Section 13143.
If a registrant does not comply with the information requirements of Section 13143, the department shall file the information requirements of Section 13143 in accordance with procedures provided in subparagraph (B) of paragraph (2) of subsection (c) of Section 136a of Title 7 of the United States Code. In order to carry out this section, the director has the same authority to require information from registrants of active pesticide ingredients that the administrator of the Environmental Protection Agency has pursuant to subparagraph (B) of paragraph (2) of subsection (c) of Section 136a of Title 7 of the United States Code. On or before July 1, 1986, the director shall, by regulation, prescribe procedures for resolving disputes or funding the filing of the information requirements of Section 13143. The procedures may include mediation and arbitration. The arbitration procedures, insofar as practical, shall be consistent with the federal act, or otherwise shall be in accordance with the commercial arbitration rules established by the American Arbitration Association. The procedures shall be established so as to resolve any dispute with the timetable established in Section 13143.
For an active ingredient or pesticide for which a registrant or registrants do not provide the information required pursuant to Section 13143, the director may determine the active ingredient or pesticide to be critical to agricultural production and the director may utilize assessments charged to those registrants of the active ingredient for which the information is required pursuant to Section 13143 in amounts necessary to cover the department’s expenses in obtaining the information. The assessment shall be made pursuant to Section 12824. The director may also request an appropriation to be used in combination with assessments to obtain the required information.
The director shall annually request a budget appropriation in order to meet the reasonable and anticipated costs of conducting soil and water monitoring pursuant to Section 13148, a review of data submitted pursuant to Section 13143, and the administration of pesticides placed on the Groundwater Protection List pursuant to this article.
In order to more accurately determine the mobility and persistence of the pesticides identified in the Groundwater Protection List, and to determine if these pesticides have migrated to groundwaters of the state, the director shall conduct soil and groundwater monitoring statewide in areas of the state where the pesticide is primarily used or where other factors identified pursuant to Section 13143 and the Groundwater Protection List, including physicochemical characteristics and use practices of the pesticides, indicate a probability that the pesticide may migrate to the groundwaters of the state. The department shall monitor for the active ingredient, other specified ingredient, or degradation product of the pesticide listed in the Groundwater Protection List. The monitoring shall commence within one year after the pesticide is placed on the Groundwater Protection List and shall be conducted in accordance with standard protocol and testing procedures established pursuant to subdivision (b). Monitoring programs shall replicate conditions under which the pesticide is normally used in the area of monitoring. In developing a monitoring program, the director shall coordinate with other agencies that conduct soil and groundwater monitoring.
Within 90 days after a pesticide is placed on the Groundwater Protection List pursuant to subdivision (d) of Section 13145, the director, in consultation with the board, shall develop a standard protocol and testing procedure for each pesticide identified pursuant to subdivision (d) of Section 13145.
The director shall report all monitoring results to the State Department of Public Health and the board.
Within 90 days after the active ingredient, other specified ingredient, or degradation product of a pesticide is detected under any of the conditions listed in paragraph (1) or (2), the director shall determine whether the detection resulted from agricultural use in accordance with state and federal laws and regulations, and shall state in writing the reasons for the determination.
An active ingredient, other specified ingredient, or degradation product of a pesticide has been found at or below the deepest of the following depths:
Eight feet below the soil surface.
Below the root zone of the crop where the active ingredient, other specified ingredient, or degradation product was found.
Below the soil microbial zone.
An active ingredient, other specified ingredient, or degradation product of a pesticide has been found in the groundwaters of the state.
Upon a determination by the director that a pesticide meets any of the conditions specified in paragraph (1) or (2) of subdivision (a) as a result of agricultural use in accordance with state and federal laws and regulations, the director shall immediately notify the registrant of the determination and of the registrant’s opportunity to request a hearing pursuant to subdivision (c).
Any pesticide that meets any of the conditions in subdivision (b) shall be subject to Section 13150 if the registrant of the pesticide requests, within 30 days after the notice is issued, that the subcommittee conduct a hearing, as described in Section 13150. Notwithstanding any other law, if the registrant does not request the hearing within 30 days after the notice is issued, the director shall cancel the registration of the pesticide.
For purposes of this section, any finding of a pesticide shall result from either an analytical method approved by the department that provides unequivocal identification of a chemical, such as mass spectroscopy, or from verification, within 30 days, by a second analytical method or a second analytical laboratory approved by the department.
The director may allow the continued registration, sale, and use of a pesticide that meets any one of the conditions specified in Section 13149 if all of the following conditions are met:
The registrant submits a report and documented evidence that demonstrate both of the following:
That the presence in the soil of any active ingredient, other specified ingredient, or degradation product does not threaten to pollute the groundwater of the state in any region within the state in which the pesticide may be used according to the terms under which it is registered.
That any active ingredient, other specified ingredient, or degradation product that has been found in groundwater has not polluted, and does not threaten to pollute, the groundwater of the state in any region within the state in which the pesticide may be used according to the terms under which it is registered.
A subcommittee of the director’s pesticide registration and evaluation committee, consisting of one member each representing the director, the State Department of Health Services, and the board, holds a hearing, within 180 days after it is requested by the registrant, to review the report and documented evidence submitted by the registrant and any other information or data that the subcommittee determines is necessary to make a finding.
The subcommittee, within 90 days after the hearing is conducted, makes any of the following findings and recommendations:
That the ingredient found in the soil or groundwater has not polluted, and does not threaten to pollute, the groundwater of the state.
That the agricultural use of the pesticide can be modified so that there is a high probability that the pesticide would not pollute the groundwater of the state.
That modification of the agricultural use of the pesticide pursuant to paragraph (2) or cancellation of the pesticide will cause severe economic hardship on the state’s agricultural industry, and that no alternative products or practices can be effectively used so that there is a high probability that pollution of the groundwater of the state will not occur. The subcommittee shall recommend a level of the pesticide that does not significantly diminish the margin of safety recognized by the subcommittee to not cause adverse health effects.
When the subcommittee makes a finding pursuant to paragraph (2) or this paragraph (3), it shall determine whether the adverse health effects of the pesticide are carcinogenic, mutagenic, teratogenic, or neurotoxic.
The director, within 30 days after the subcommittee issues its findings, does any of the following:
Determines that, contrary to the finding of the subcommittee, no pollution or threat to pollution exists. The director shall state the reasons for his or her decisions in writing at the time any action is taken, specifying any differences with the subcommittee’s findings and recommendations. The written statement shall be transmitted to the appropriate committees of the Senate and Assembly, the State Department of Health Services, and the board.
When the director takes action pursuant to paragraph (2) or (3), he or she shall determine whether the adverse health effects of the pesticide are carcinogenic, mutagenic, teratogenic, or neurotoxic.
The department shall conduct ongoing soil and groundwater monitoring of any pesticide whose continued use is permitted following the issuance of findings by the director pursuant to subdivision (d) of Section 13150. The department shall continuously review new science and data that could impact the validity of a finding that a pesticide reviewed pursuant to Section 13150 has not polluted and does not threaten to pollute the groundwater of the state.
If the department determines that there is new science or data that could impact the validity of a finding described in paragraph (1), the director shall either mitigate the threat presented by the pollution or subject the pesticide again to the Section 13150 review process.
Any pesticide monitored pursuant to this section that is determined, by review of monitoring data and any other relevant data, to pollute the groundwaters of the state two years after the director takes action pursuant to paragraph (2), (3), or (4) of subdivision (d) of Section 13150 shall be canceled unless the director has determined that the adverse health effects of the pesticide are not carcinogenic, mutagenic, teratogenic, or neurotoxic.
The department shall maintain a statewide database of wells sampled for pesticide active ingredients. All agencies shall submit to the department, in a timely manner, the results of any well sampling for pesticide active ingredients and the results of any well sampling that detect any pesticide active ingredients.
Not later than June 30, 1986, the director, the State Department of Public Health, and the board shall jointly establish minimum requirements for well sampling that will ensure precise and accurate results. The requirements shall be distributed to all agencies that conduct well sampling. All well sampling conducted after December 1, 1986, shall meet the minimum requirements established pursuant to this subdivision.
The department shall post the following information on its Internet Web site, updated no later than December 1 of each year:
The number of wells sampled for pesticide active ingredients, the location of the wells from which the samples were taken, the well numbers, if available, and the agencies responsible for drawing and analyzing the samples.
The number of well samples with detectable levels of pesticide active ingredients, the location of the wells from which the samples were taken, the well numbers, if available, and the agencies responsible for drawing and analyzing the samples.
An analysis of the results of well sampling described in paragraphs (1) and (2), to determine the probable source of the residues. The analysis shall consider factors such as the physical and chemical characteristics of the pesticide, volume of use and method of application of the pesticide, irrigation practices related to use of the pesticide, and types of soil in areas where the pesticide is applied.
Actions taken by the director and the board to prevent pesticides from migrating to groundwaters of the state.
ARTICLE 16. The Interim Data Gap Exemption for Qualified Federally Registered Pesticides [13161. - 13170.]
For the purposes of this article, the following definitions apply:
“Feasible alternative” means other chemical or nonchemical procedures that can reasonably accomplish the same pest control function as existing procedures with comparable effectiveness and reliability, taking into account economic, environmental, sociological, technological, and ecological factors, including impact on beneficial and other nontarget organisms, pest resistance to pesticides, and timeliness of control.
“Pest management system” means a systematic approach to pest control that stresses the application of biological and cultural pest control techniques with the selective use of pesticides when necessary to achieve acceptable levels of control with the least possible harm to nontarget organisms and the environment as described in subdivision (f) of Section 11501.
The director may issue a certificate of interim registration allowing the sale and use of a pesticide that otherwise meets the requirements of this chapter if all of the following conditions are met:
The certificate stipulates which of the California data requirements listed in Section 13163 are being deferred for completion during the time of interim registration.
The certificate stipulates a period of time, not to exceed three years, for each deferral determined by the director as reasonably sufficient for the generation, submission, and review of the data.
The certificate stipulates any limitations on the use of the pesticide that the director may deem appropriate pursuant to Section 13166 or on the sale of the pesticide.
In granting a certificate of interim registration, the director may defer no more than three of the following registration data requirements:
Efficacy studies pursuant to Section 12824.
KOW (octanol water partition coefficient) pursuant to paragraph (3) of subdivision (a) of Section 13143.
Soil photolysis pursuant to paragraph (6) of subdivision (a) of Section 13143.
A field dissipation study pursuant to paragraph (6) of subdivision (a) of Section 13143.
A study pursuant to subdivision (a) of Section 13143 that will be redone to correct errors or a study conducted under California conditions or guidelines, if the weight of evidence from all other submitted data support a scientific judgment in favor of interim registration.
Consistent with the limitations of Section 13163, a registrant or a user group of any pesticide registered by the United States Environmental Protection Agency may apply for a California certificate of interim registration if the applicant does all of the following:
The applicant provides information that the product would fill a need and significantly enhance a systems approach to pest management during the period the applicant completes requirements for a full California registration. Additionally, the information supporting an interim registration shall be based upon one or more of the following conclusions that the product will:
Reduce risks to the public health, the pesticide workplace, or the environment by reducing the overall use of chemical controls within a pest management system.
Reduce risks to the public health, the pesticide workplace, or the environment by providing a more benign alternative to an existing use pattern.
Reduce risks of pest resistance problems such as loss of economic efficacy and increased amounts or frequency of chemical applications by providing better integrated management of a pest or pest complex.
Reduce a substantial economic hardship to a segment of California’s agricultural industry due to a pest infestation for which there is no other feasible alternative.
The applicant provides the director with all data that is required to support the federal and California registrations of the pesticide product, except the data which may be deferred pursuant to Section 13163, and any other available data that the director may deem appropriate.
The applicant makes a commitment to generate all data required in California for a full certificate of registration within a reasonable period of time to be determined by the director and reflected in the certificate of interim registration. The written commitment shall identify the developing party or parties for each deferred data requirement within 90 days of the issuance of the certificate of interim registration and identify a schedule of quarterly progress reports that will be submitted.
Notwithstanding Section 13163, the director shall not grant a certificate of interim registration unless he or she consults with the Pesticide Registration and Evaluation Committee on the proposed interim registration, and makes a written finding, after consultation, declaring all of the following:
That the pesticide is needed and will be a significant component of a pest management system as demonstrated by the applicant pursuant to subdivision (a) of Section 13164.
That the interim use of the pesticide, in conformance with the limitations established by the director pursuant to Section 13166, is not expected to cause any significant adverse effect on the public health, the safety of the pesticide workplace, or the environment, including a finding that the pesticide does not threaten to pollute the groundwater of the state.
That the weight of evidence supports a scientific judgment in favor of interim registration.
The director shall limit the use of any pesticide granted a certificate of interim registration to specific uses within a pest management system meeting the requirements of subdivision (a) of Section 13164. The director may place additional restrictions on the use of any pesticide granted a certificate of interim registration, including, but not limited to, requiring a restricted material permit or the written recommendation of a specially trained pest control advisor or specially trained certified private applicator, or limiting the quantity, area, and manner of application.
The director shall revoke or refuse to renew a certificate of interim registration at any time that he or she finds that the interim registration no longer meets all the requirements of this article, including the registrant’s failure to submit a progress report for any deferred study, a failure to show in the report that a good faith effort to complete an acceptable study is making satisfactory progress, or the period of time from the issuance of the certificate has exceeded the three year limit set forth in Section 13162. The director shall provide the registrant with the basis for the decision in writing.
The director may adopt regulations to carry out this article.
To the extent that this article conflicts with other provisions in Article 15 of this chapter, this article shall prevail. Unless otherwise specified in this article, a certificate of interim registration shall be subject to all other provisions governing certificates of registration in Division 6 (commencing with Section 11401) and this division.
The department shall impose a fee in an amount sufficient to cover the department’s costs of reviewing and processing the application on any person who applies for a certificate of interim registration pursuant to this article. Fee revenue shall be deposited in the Department of Pesticide Regulation Fund and shall be available, upon appropriation by the Legislature, to offset the department’s costs to process and review these applications.
ARTICLE 17. Healthy Schools Act of 2000 [13180. - 13188.]
This article, Article 4 (commencing with Section 17608) of Chapter 5 of Part 10.5 of the Education Code, and Article 2 (commencing with Section 105500) of Chapter 7 of Division 103 of the Health and Safety Code, shall be known and may be cited as the Healthy Schools Act of 2000.
Notwithstanding any other law, for purposes of this article, “integrated pest management” means a pest management strategy that focuses on long-term prevention or suppression of pest problems through a combination of techniques such as monitoring for pest presence and establishing treatment threshold levels, using nonchemical practices to make the habitat less conducive to pest development, improving sanitation, and employing mechanical and physical controls. Pesticides that pose the least possible hazard and are effective in a manner that minimizes risks to people, property, and the environment, are used only after careful monitoring indicates they are needed according to preestablished guidelines and treatment thresholds. This definition shall apply only to integrated pest management at school facilities and child day care facilities.
For purposes of this article “IPM coordinator” has the same meaning as school designee or IPM coordinator, as those terms are defined in subdivision (e) of Section 17609 of the Education Code.
It is the policy of the state that effective least toxic pest management practices should be the preferred method of managing pests at schoolsites and that the state, in order to reduce children’s exposure to toxic pesticides, shall take the necessary steps, pursuant to this article, to facilitate the adoption of effective least toxic pest management practices at schoolsites. It is the intent of the Legislature that all school personnel involved in the application of pesticides at a schoolsite be trained in integrated pest management and the safe use of pesticides in relation to the unique nature of schoolsites and children’s health.
The department shall promote and facilitate the voluntary adoption of integrated pest management programs for schoolsites, excluding privately operated child day care facilities, as defined in Section 1596.750 of the Health and Safety Code, that voluntarily choose to do so. For these schoolsites, the department shall do all of the following:
Establish an integrated pest management program for schoolsites consistent with Section 13181. In establishing the program, the department shall:
Develop criteria for identifying least-hazardous pest control practices and encourage their adoption as part of an integrated pest management program at each schoolsite.
Develop a model program guidebook that prescribes essential program elements for schoolsites that have adopted a least-hazardous integrated pest management program. At a minimum, this guidebook shall include guidance on all of the following:
Adopting an IPM policy.
Selecting and training an IPM coordinator.
Identifying and monitoring pest populations and damage.
Establishing a community-based school district advisory committee.
Developing a pest management plan for making least-hazardous pest control choices.
Contracting for integrated pest management services.
Training and licensing opportunities.
Establishing a community-based right-to-know standard for notification and posting of pesticide applications.
Recordkeeping and program review.
Develop a template for an integrated pest management plan to be used by schoolsites or school districts. The template shall outline a strategy for integrated pest management as described in Section 13181.
Make the model program guidebook available to schoolsites and establish a process for systematically updating the guidebook and supporting documentation.
The department shall promote and facilitate the voluntary adoption of integrated pest management programs at child day care facilities, as defined in Section 1596.750 of the Health and Safety Code, through the following:
Modifying the department’s existing integrated pest management program for schoolsites as described in subdivision (a) of Section 13183 for the child day care setting.
Creating or modifying existing educational and informational materials on integrated pest management for the child day care setting.
Making the materials available to child day care facilities and establishing a process for systematically updating them.
The department shall develop a training course to train any person who intends to apply pesticides on a schoolsite. The training course shall cover integrated pest management and the safe use of pesticides in relation to the unique nature of schoolsites and children’s health. The training course shall be provided by the department or an agent authorized by the department.
In implementing Section 13183, the department shall establish and maintain an Internet Web site as a comprehensive directory of resources describing and promoting least-hazardous practices at schoolsites. The Web site shall also make available an electronic copy of the model program guidebook, its updates, and supporting documentation. The department shall also establish and maintain on its Web site an easily identified link that provides the public with all appropriate information regarding the public health and environmental impacts of pesticide active ingredients and ways to reduce the use of pesticides at school facilities.
It is the intent of the Legislature that the state assist school districts to ensure that compliance with Section 17612 of the Education Code is simple and inexpensive. The department shall include in its Web site Internet-based links that allow schools to properly identify and list the active ingredients of pesticide products they expect to be applied during the upcoming year. Use of these links by schools is not mandatory but shall be made available to all schools at no cost. The department shall ensure that adequate resources are available to respond to inquiries from school facilities or districts regarding the use of integrated pest management practices.
The department shall establish an integrated pest management training program in order to facilitate the adoption of a model IPM program and least-hazardous pest control practices by schoolsites. In establishing the IPM training program, the department shall do all of the following:
Adopt a “train-the-trainer” approach, whenever feasible, to rapidly and broadly disseminate program information.
Develop curricula and promote ongoing training efforts in cooperation with the University of California and the California State University.
Prioritize outreach on a regional basis first and then to school districts. For outreach to child day care facilities, the department shall participate in existing trainings that provide opportunities for disseminating program information broadly on a regional basis.
Nothing in this article shall preclude a schoolsite from adopting stricter pesticide use policies.
The Legislature finds and declares that the Department of Pesticide Regulation, pursuant to Section 12979 of the Food and Agricultural Code and Sections 6624 and 6627 of Title 3 of the California Code of Regulations, requires persons engaged for hire in the business of pest control to maintain records of pesticide use and report a summary of that pesticide use to the county agricultural commissioner or director. The Legislature further finds and declares that it is in the interest of the state, in implementing a school integrated pest management program pursuant to this article, to collect specified information on the use of pesticides at schoolsites.
The Department of Pesticide Regulation shall prepare a school pesticide use form to be used by licensed and certified pest control operators when they apply any pesticides at a schoolsite. The form shall include, for each application at a schoolsite, the name and address of the schoolsite, date and location of application, pesticide product name, and the quantity of pesticide used. Nothing in this section shall change any existing applicable pesticide use reporting requirements.
Persons who are required to submit pesticide use records to the county agricultural commissioner or director shall complete and submit to the director the school pesticide use forms established pursuant to this section. The forms shall be submitted annually and may be submitted more often at the discretion of the pest control operator maintaining the forms. Child day care facilities, excluding family day care homes, as defined in Section 1596.78 of the Health and Safety Code, which are subject to the Healthy Schools Act of 2000, shall inform contractors hired to apply pesticides at the schoolsite that the facility must comply with the Healthy Schools Act of 2000.
Any person who is hired to apply pesticides at a child day care facility, excluding family day care homes, as defined in Section 1596.78 of the Health and Safety Code, shall provide that facility’s school designee with all of the following information at least 120 hours in advance of any pesticide application, except in the case of an emergency condition, as defined in Section 17609 of the Education Code:
The pesticide product name.
The pesticide manufacturer’s name.
The United States Environmental Protection Agency’s product registration number.
The active ingredient or ingredients in the pesticide product.
The areas of application.
The intended date of application.
The reason for the pesticide application.
If a person hired to apply pesticides contracts directly with the property owner or his or her agent rather than directly with the child day care facility, excluding family day care homes, as defined in Section 1596.78 of the Health and Safety Code, the property owner or his or her agent must notify the contractor that a child day care facility is being operated on the property at which the pesticides are to be applied to enable the contractor to comply with subdivision (d).
Commencing July 1, 2016, and except as provided in subdivision (b), a school designee, as defined in Section 17609 of the Education Code, and any person, including, but not necessarily limited to, a schoolsite or school district employee, who, in the course of his or her work, intends to apply a pesticide at a schoolsite subject to this article, shall annually complete a training course provided by the department or an agent authorized by the department. The training course shall include integrated pest management and the safe use of pesticides in relation to the unique nature of schoolsites and children’s health.
Commencing July 1, 2016, any person hired to apply a pesticide at a schoolsite subject to this article shall complete at least a one-hour training course in integrated pest management and the safe use of pesticides in relation to the unique nature of schoolsites and children’s health before applying pesticides at a schoolsite subject to this article and during each subsequent licensing period in which the person applies a pesticide at a schoolsite subject to this article. The training course may be applied to his or her professional continuing education requirement required by the Structural Pest Control Board or the department.
The training course required by paragraph (1) shall be developed by the department and may also be developed by a provider approved by the Structural Pest Control Board if the training course has been approved by the department.
The department shall ensure that the training course it develops or approves pursuant to paragraph (2) meets the requirements for continuing education credit required by the Structural Pest Control Board and the department.
The Director of Pesticide Regulation may adopt regulations to implement this article.
ARTICLE 17.5. Pesticide Use Near Schoolsites [13189. - 13189.6.]
For purposes of this article, “schoolsite” has the same meaning as defined in Section 6690 of Title 3 of the California Code of Regulations.
To enable accurate reporting and enforcement of Sections 6690 to 6692, inclusive, of Title 3 of the California Code of Regulations, the department shall do all of the following:
Require a separate site identification number for the portion of an agricultural field that lies within one-quarter mile of a schoolsite.
For a permit application for agricultural use of a pesticide designated as a restricted material, as it pertains to an agricultural field of which any portion lies within one-quarter mile of a schoolsite, require reporting on the specific anticipated method of applying the pesticide as specified in Section 6691 of Title 3 of the California Code of Regulations.
For a notice of intent for use of a pesticide designated as a restricted material, as it pertains to an agricultural field of which any portion lies within one-quarter mile of a schoolsite, require reporting on both of the following:
The specific method of applying the pesticide as specified in Section 6691 of Title 3 of the California Code of Regulations.
The allowable dates and times of the period during which the pesticide is to be applied.
For pesticide use reporting forms and procedures, as they pertain to an agricultural field of which any portion lies within one-quarter mile of a schoolsite, require reporting on both of the following:
In evaluating a county’s pesticide use enforcement program, the director shall evaluate the county’s effectiveness in enforcing Sections 6690 to 6692, inclusive, of Title 3 of the California Code of Regulations and this article.
On or before December 31, 2026, the director shall adopt regulations to revise Sections 6690 to 6692, inclusive, of Title 3 of the California Code of Regulations to additionally apply those provisions to private schools serving pupils in kindergarten or any of grades 1 to 12, inclusive, with an enrollment of six or more pupils.
The department and the county agricultural commissioners shall use private school directory information and maps available on the internet website of the State Department of Education to determine the location of private schools serving pupils in kindergarten or any of grades 1 to 12, inclusive, with an enrollment of six or more pupils.
An operator of property or applicator who uses the information or maps described in subdivision (a) for purposes of complying with the requirements of this chapter, or the regulations implementing this chapter, shall not be considered in violation of those requirements if the information or maps used by the operator or applicator were inaccurate or out of date and the operator’s or applicator’s actions that would otherwise be considered in violation of those requirements are solely the result of using the inaccurate or out-of-date information or maps.
This article does not apply to a school conducted in a person’s residence.
This article does not restrict the department’s authority to amend Sections 6690 to 6692, inclusive, of Title 3 of the California Code of Regulations to the extent that those amendments are consistent with this article.
ARTICLE 18. Contamination of Compost [13190. - 13192.]
“Clopyralid” means 3,6-dichloro-2-pyridinecarboxylic acid.
“Compost” means the product resulting from the controlled biological decomposition of organic wastes that are source separated from the municipal solid waste stream, or that are separated at a centralized facility.
“Department” means the Department of Pesticide Regulation.
“Herbicide” means a pesticide, as defined in Section 12753, that is intended to kill weeds.
“Lawn and turf use” means a residential or nonresidential use of an herbicide on lawn and turf, including, but not limited to, lawn and turf located at schools, parks, office buildings and golf courses. Lawn and turf use does not include use of an herbicide on lawn and turf located in turf farms, uncultivated open space, agricultural rangeland or cultivated farmland.
“Persistent residues in compost” means residues of an herbicide in compost at levels and in a form with the potential to be toxic or injurious to plants.
“Plants” means desirable vegetation, except weeds.
“Weed” means any plant that grows where not wanted, as defined in Section 12759.
No person, except a pest control dealer licensed pursuant to Chapter 7 (commencing with Section 12101) of Division 6 of the Food and Agricultural Code, may sell a pesticide that contains the active ingredient clopyralid.
Pesticides containing the active ingredient clopyralid that are labeled for use on lawns and turf, including golf courses, may only be sold to qualified applicators licensed pursuant to Chapter 8(commencing with Section 12201) of Division 6 of the Food and Agricultural Code or issued a certificate pursuant to Chapter 3 (commencing with Section 14151) of Division 7 of the Food and Agricultural Code.
Determine in writing those lawn and turf uses of the herbicide clopyralid for which there is no reasonable likelihood that the specified use will result in persistent residues in compost.
Take either of the following actions:
Impose appropriate restrictions on the lawn and turf uses of the herbicide clopyralid that are not identified in the determination made pursuant to subdivision (a).
Cancel any lawn and turf use that the department determines is likely to result in persistent residues in compost.
CHAPTER 3. Restricted Materials [14001. - 14086.]
ARTICLE 1. Generally [14001. - 14015.]
The director shall control and otherwise regulate the use of restricted materials found to meet the criteria of Section 14004.5.
This chapter applies to all agencies of the United States and the State of California and its subdivisions or to their officers, agents, or employees. Nothing in this section affects the liability of a public entity under Section 862 of the Government Code.
This article does not relieve any person from liability for any damage to the person or property of another person which is caused by the use of any restricted material.
The director, and the commissioner of each county under the direction and supervision of the director, shall enforce this chapter and the regulations issued pursuant to it.
The director shall, by regulation, designate and establish as necessary to carry out the purposes of this division, a list of restricted materials based upon, but not limited to, any of the following criteria:
Danger of impairment of public health.
Hazards to applicators and farmworkers.
Hazards to domestic animals, including honeybees, or to crops from direct application or drift.
Hazard to the environment from drift onto streams, lakes, and wildlife sanctuaries.
Hazards related to persistent residues in the soil resulting ultimately in contamination of the air, waterways, estuaries or lakes, with consequent damage to fish, wild birds, and other wildlife.
Hazards to subsequent crops through persistent soil residues.
Except as provided in subdivision (d) of Section 14006.6, the director shall adopt regulations which govern the possession and use of any restricted material which he or she finds and determines is injurious to the environment or to any person, animal, crop, or other property.
The regulations shall prescribe the time when, and the conditions under which, a restricted material may be used or possessed in different areas of the state, and may prohibit its use or possession in those areas. This usage shall be limited to those situations in which it is reasonably certain that no injury will result, or no nonrestricted material or procedure is equally effective and practical. They may provide that a restricted material shall be used only under permit of the commissioner or under the direct supervision of the commissioner, subject to any of the following limitations:
In certain areas.
Under certain conditions relating to safety.
When used in excess of certain quantities or concentrations.
When used in certain mixtures.
In compliance with the industrial safety orders of the Department of Industrial Relations and any order of the director or commissioner.
On agreement by the owner or person in possession of the property to be treated to comply with certain conditions.
Any other limitation the director determines to be necessary to effectuate the purposes of this chapter.
This section shall become operative on January 1, 1991.
Except as provided in Section 14006.6, a person shall not use or possess a pesticide designated as a restricted material for any agricultural use except under a written permit of the commissioner. A permit shall not be issued for any restricted material for use in any manner other than pursuant to its registration without the approval of the director. In addition, a permit shall not be granted if the commissioner determines that paragraph (1), (2), or (3) of subdivision (a) of Section 12825 would be applicable to the proposed use.
Before issuing a permit for a pesticide, the commissioner shall consider local conditions, including, but not limited to, all of the following:
Use in vicinity of schools, dwellings, hospitals, recreational areas, and livestock enclosures.
Problems related to heterogeneous planting of crops.
Applications of materials known to create severe resurgence or secondary pest problems without compensating control of pest species.
Meteorological conditions for use.
Timing of applications in relation to bee activity.
Provisions for proper storage of pesticides and disposal of containers.
Each permit issued for any pesticide shall include conditions for use in writing.
A permit shall not be required for the agricultural use of any pesticide not designated as a restricted material unless the commissioner determines that its use will present an undue hazard when used under local conditions.
Permits for the use of pesticides shall not be required of persons found to be qualified by the director who are engaged in experimentation or research on the use of pesticides, where no charge is made to the person in charge of the property treated.
A permit shall not be required for the possession of pesticides by a registrant, as defined in Section 12755, or by a licensed pest control dealer when operating pursuant to the registration or the license; by commercial warehouses storing pesticides; or for the possession and use of these materials when specifically exempted by regulation of the director in cases in which the mitigation measures provided by the permit system are not necessary to avoid injury to the environment or to any person, animal, crop, or property.
Permits for the use of pesticides shall not be required of persons operating pursuant to a license issued under Chapter 14 (commencing with Section 8500) of Division 3 of the Business and Professions Code.
The director shall designate, by regulation, a list of “exempt materials” for which the director finds additional restrictions, other than registration and labeling requirements, are not necessary to carry out the purposes of this chapter. The exempt materials may be used without a permit if the use conforms with the registered label or printed instructions.
Every permit that is issued under the regulations adopted pursuant to this chapter is conditioned upon compliance with this code and regulations adopted pursuant thereto and upon other specified conditions that may be required to accomplish the purposes of this chapter.
Any permit may be issued for a one-year period. Permits issued for perennial agricultural plantings, nonproduction agricultural sites, or nonagricultural sites may be issued for up to a three-year period.
The permittee or a designated agent shall report immediately any change in the information submitted or pertinent to the issuance of a valid permit to the appropriate commissioner.
Any permit may be refused, revoked, or suspended for violation of any of the conditions of the permit, or of a previous permit, or for violation of any provision of this division or of the regulations that are issued pursuant to it, or for the failure to pay a civil penalty or comply with any lawful order of the commissioner, once that order is final.
An interested person may request the commissioner to review their action in issuing, refusing, revoking, suspending, or conditioning a permit to use or possess a restricted material. The request for review of the commissioner’s action shall be limited to the issues described in subdivision (d). The commissioner shall review the request and issue a written decision in response to the request to review within 10 days of receipt of the request. If the commissioner is unable to complete the review within 10 days, the commissioner shall notify the person requesting a review in writing, including an estimated timeline for completion. The commissioner may affirm, modify, or cancel the permit action reviewed. An interested person may thereafter appeal to the director to review the commissioner’s action within 30 days of the date of receiving the commissioner’s written decision.
No later than January 31 of each year, the commissioner shall report to the director the number and share of total reviews within their jurisdiction in the previous calendar year that were not completed within the 10-day timeline provided in this subdivision, the average number of days required for review, and the number of permits that were affirmed, modified, or cancelled.
The commissioner and director shall conduct each review in an expeditious manner so that needed pest control measures are not adversely affected.
Each request for review, limited to the issues described in subdivision (d), shall be submitted in writing to the commissioner by the person requesting the review and shall include all of the following:
The location of persons, property, or areas that would be affected and the location of property to be treated.
The name of the restricted material involved.
The name and address of the person in charge of the property to be treated, if different from the person filing the request for review.
Any other information that the person filing the request for review or the commissioner determines to be relevant.
In an appeal of a commissioner’s action to the director, the issues are limited to any of the following:
The director shall act on these appeals within 10 days of receipt thereof. If the director is unable to complete the review within 10 days, the director shall notify the appellant, in writing, including an estimated timeline for completion. The director may stay the operation of a permit until their review is complete. As part of its annual reporting requirements pursuant to subdivision (c) of Section 12824.5, the department shall report the number and share of total cases in which the director did not meet the timeline provided in this subdivision, the average number of days required for review of appeals, and the number of permits that were affirmed, modified, or cancelled.
Before acting on an appeal, the director shall make publicly available all of the information provided to them as specified in this section if requested to do so in writing by any interested person.
At any time before acting on an appeal, the director may request additional testimony or other evidence specified in this section at the public review from interested persons.
Judicial review of any decision by the director pursuant to this section shall be pursuant to Section 1094.5 of the Code of Civil Procedure. Review shall be limited to whether the proposed permit use is consistent with applicable pesticide label restrictions and regulations and whether the director abused their discretion.
It is unlawful for any person to sell or deliver any restricted material to any person that is required by regulations adopted by the director to have a permit to possess or use the restricted material unless the permittee, or the permittee’s agent to whom delivery is made, provides to the seller or the person delivering the restricted material a copy of a permit which authorizes possession or use of the kind and quantity of the restricted material on the date the restricted material is delivered.
It is unlawful for any person to apply any restricted material for which regulations have been adopted except as provided in the regulations which are adopted by the director.
Except as may be provided in regulations adopted by the director, a pesticide use report shall be submitted to the commissioner, on a form prescribed by the director, within seven days after each use of a restricted material.
Any person who is required to register pesticides under Article 4 (commencing with Section 12811) of Chapter 2, and who sells or transfers any restricted material, shall keep accurate records of the amount and type of material involved in every sale or transfer of any restricted material. The records shall be open during ordinary business hours to the inspection of the director.
Each commissioner shall submit to the director a copy of each pesticide use report received pursuant to Section 14011.5, and any other relevant information the director may require. Copies of the reports from the commissioners shall be rendered to the director within one calendar month after they are received.
The contents of these reports shall be summarized quarterly by the director as to the type of material and amounts, and the summaries shall be made a public record. The director may publish or distribute the summaries.
Except as provided by regulation adopted by the director, a restricted material shall only be possessed or used by, or under the direct supervision of, a private applicator, who is certified pursuant to Section 14093, or a certified commercial applicator, as defined by Section 6000 of Title 3 of the California Code of Regulations.
ARTICLE 1.5. Pesticides [14021. - 14027.]
As used in this article, “pesticide” is defined in Section 12753.
For purposes of this article, “toxic air contaminant” means an air pollutant that may cause or contribute to an increase in mortality or an increase in serious illness, or which may pose a present or potential hazard to human health. Pesticides that have been identified as hazardous air pollutants pursuant to Section 7412 of Title 42 of the United States Code shall be identified by the director as toxic air contaminants.
In consultation with the Office of Environmental Health Hazard Assessment and the State Air Resources Board, the director shall evaluate the health effects of pesticides that may be or are emitted into the ambient air of California and that may be determined to be a toxic air contaminant that poses a present or potential hazard to human health. Upon request of the State Air Resources Board, the director shall include a pesticide for evaluation.
The director shall complete the evaluation of a pesticide within 90 days after receiving the scientific data specified in subdivision (c) from the Office of Environmental Health Hazard Assessment and the State Air Resources Board. The director may extend the 90-day deadline for a period not to exceed 30 days if the director transmits to the Assembly Committee on Rules and the Senate Committee on Rules, for transmittal to the appropriate standing, select, or joint committee of the Legislature, a statement of reasons for extension of the deadline.
In conducting this evaluation, the director shall consider all available scientific data, including, but not limited to, relevant data provided by the Office of Environmental Health Hazard Assessment, the Occupational Safety and Health Division of the Department of Industrial Relations, international and federal health agencies, private industry, academic researchers, and public health and environmental organizations. At the request of the director, the State Air Resources Board shall document the level of airborne emissions and the Office of Environmental Health Hazard Assessment shall provide an assessment of related health effects of pesticides that may be determined to pose a present or potential hazard and each agency shall provide technical assistance to the department as it conducts its evaluation.
The director may request, and any person shall provide, information on any substance that is or may be under evaluation and that is manufactured, distributed, or used by the person to whom the request is made, in order to carry out the director’s responsibilities pursuant to this chapter. Any person providing information pursuant to this subdivision shall identify, at the request of the director, that portion of the information submitted to the department that is a trade secret and, upon the request of the director, shall provide documentation to support the claim of the trade secret. Information supplied that is a trade secret, as specified in Section 7924.510 of the Government Code, and that is so marked at the time of submission shall not be released to the public by the director, except in accordance with Section 1060 of the Evidence Code and Section 21160 of the Public Resources Code.
The director shall give priority to the evaluation and regulation of substances based on factors related to the risk of harm to public health, amount or potential amount of emissions, manner of usage of the pesticide in California, persistence in the atmosphere, and ambient concentrations in the community.
Upon completion of the evaluation conducted pursuant to Section 14022, the director shall, in consultation and with the participation of the Office of Environmental Health Hazard Assessment, prepare a report on the health effects of the pesticide that may be determined to be a toxic air contaminant that poses a present or potential hazard to human health due to airborne emission from its use. The report shall assess the availability and quality of data on health effects, including potency, mode of action, and other relevant biological factors, of the substance. The report shall also contain an estimate of the levels of exposure that may cause or contribute to adverse health effects and, in the case where there is no threshold of significant adverse health effects, the range of risk to humans, resulting from current or anticipated exposure. The report shall include the findings of the Office of Environmental Health Hazard Assessment. The report shall be made available to the public, subject to subdivision (d) of Section 14022.
The report prepared pursuant to subdivision (a) shall be formally reviewed by the scientific review panel established according to Section 39670 of the Health and Safety Code. The director shall also make available the data deemed necessary to the scientific review panel, according to departmental procedures established to ensure confidentiality of proprietary information. The panel shall review, as appropriate, the scientific data on which the report is based, the scientific procedures and methods used to support the data, and the conclusions and assessments on which the report is based. The panel shall submit its written findings to the director within 45 days after receiving the report, but it may petition the director for an extension of the deadline, which may not exceed 15 working days.
If the scientific review panel determines that the health effects report is seriously deficient, the report shall be returned to the director who shall revise and resubmit the report, within 30 days following receipt of the panel’s determination, to the panel before development of emission control measures.
Within 10 working days following receipt of the findings of the scientific review panel pursuant to subdivision (b), the director shall prepare a hearing notice and a proposed regulation that shall include the proposed determination as to whether a pesticide is a toxic air contaminant. After conducting a public hearing pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the director shall list, by regulation, pesticides determined to be toxic air contaminants.
The director shall determine, in consultation with the Office of Environmental Health Hazard Assessment, the State Air Resources Board, and the air pollution control districts or air quality management districts in the affected counties, the need for and appropriate degree of control measures for each pesticide listed as a toxic air contaminant pursuant to subdivision (d). Any person may submit written information for consideration by the director in making determinations on control measures. The director’s written determination and any formal written comments made by the consulting agencies shall be made available to the public.
For each pesticide identified by the director as a toxic air contaminant based on its listing as a hazardous air pollutant pursuant to Section 7412 of Title 42 of the United States Code for which a risk assessment has been completed, the director, in consultation with the Office of Environmental Health Hazard Assessment, the State Air Resources Board, and the air pollution control or air quality management districts in the affected counties, shall determine the need for and appropriate degree of control measures. Any person may submit written information for consideration by the director in making determinations on control measures. The director’s written determination and any formal written comments made by the consulting agencies shall be made available to the public.
For those pesticides for which a need for control measures has been determined pursuant to subdivision (e) or (f) of Section 14023 and pursuant to provisions of this code, the director, in consultation with the agricultural commissioners, air pollution control districts, and air quality management districts in the affected counties, shall develop control measures designed to reduce emissions sufficiently so that the source will not expose the public to the levels of exposure that may cause or contribute to significant adverse health effects. If no demonstrable safe level or threshold of significant adverse health effects has been established by the director, the control measures shall be designed to adequately prevent an endangerment of public health through the application of best practicable control techniques.
Best practicable control techniques may include, but are not limited to, the following:
Label amendments.
Applicator training.
Restrictions on use patterns or locations.
Changes in application procedures.
Reclassification as a restricted material.
Cancellation.
If the director is unable to adopt control measures to protect human health within two years of the determination of the need for control measures pursuant to paragraph (1), the director shall submit a report to the appropriate committees of the Legislature setting forth the reasons this requirement has not been met.
The director shall update the report submitted to the appropriate committees of the Legislature pursuant to subparagraph (A) every two years until the control measures have been adopted.
If the registration for the use of a particular pesticide is rescinded or if the director determines there has been a dramatic decline in the use of a particular pesticide so that control measures for that particular pesticide are no longer needed, the director shall include this information in the report submitted to the appropriate committees of the Legislature pursuant to subparagraph (A) and the director’s obligations pursuant to paragraph (1) shall be deemed to have been met.
For purposes of this section, with respect to any pesticide for which a determination of the need for control measures was made before January 1, 2014, the two-year period described in subdivision (c) shall commence on January 1, 2014.
After conducting a public hearing pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the director shall adopt, by regulation, control measures, including application of the best practicable control techniques enumerated in subdivision (b) or any other best applicable control technique, for those pesticides for which a need has been determined.
Any person may petition the department to review a determination made pursuant to this article. The petition shall specify the additional scientific evidence regarding the health effects of a pesticide which was not available at the time the original determination was made and any other evidence which would justify a revised determination.
Nothing in this article shall be construed to limit or expand the department’s authority regarding pesticides which are not determined to be toxic air contaminants.
Notwithstanding Section 12998, any person who violates any rule or regulation, emission limitation, or permit condition adopted pursuant to this article is liable for a civil penalty not to exceed ten thousand dollars ($10,000) for each day in which the violation occurs. In assessing a civil penalty under this article, the court shall consider the appropriateness of the penalty with respect to the following factors:
The size of the business of the person being charged.
The gravity of the violation.
The good faith of the person being charged.
The history of previous violations.
Any money recovered under this section shall be paid into the Department of Food and Agriculture Fund for use by the department in administering this division and Division 6 (commencing with Section 11401).
Liability may be imposed under subdivision (a) only if the department establishes that the violation was caused by an act which was the result of intentional or negligent conduct by the person accused of the violation.
ARTICLE 2. 2,4-D and Other Herbicides [14031. - 14034.]
As used in this article, “2,4-D” means any form of 2,4-dichlorophenoxyacetic acid.
Except as otherwise provided in this article and in the regulations which are adopted by the director, it is unlawful for any person to use any form of 2,4-D or any other herbicide which the director finds and determines, after hearing, is injurious to any crop.
The director shall adopt regulations that govern the use of 2,4-D and any other herbicide which he finds and determines is injurious to any crop that is being grown in any area of the state. The regulations of the director may prescribe the time when, and the conditions under which, a restricted herbicide may be used in different areas of the state. They may provide that a restricted herbicide shall be used only under permit of the commissioner or under the direct supervision of the commissioner, subject to any of the following limitations:
In certain areas.
In excess of certain quantities or concentrations.
This article does not relieve any person from liability for any damage to the property of another person which is caused by the use of any herbicide which is named in the regulations which are adopted by the director.
ARTICLE 3. Compound 1080 [14061. - 14063.]
As used in this article, “Compound 1080” means sodium fluoroacetate or any preparation of sodium fluoroacetate.
Except as otherwise provided in this article, it is unlawful for any person to sell, use, or possess any Compound 1080.
Subject to regulations of the director, any of the following persons may sell, use, or possess Compound 1080 for the purposes or uses that are specified:
Any federal, state, county, or municipal officer or employee, in his or her official capacity, or any person under the immediate supervision of that officer or employee, may possess Compound 1080 for use for pest control purposes.
Any research or chemical laboratory may possess Compound 1080 for use for the purposes of the laboratory.
Any person duly licensed as a structural pest control operator under Chapter 14 (commencing with Section 8500), Division 3 of the Business and Professions Code, may possess Compound 1080 for use in his or her business.
Any wholesaler or jobber of any pesticide may sell Compound 1080 to any person included within the above classifications, or for export.
ARTICLE 4. Methyl Bromide and Chloropicrin [14081. - 14082.]
The director, after investigation and hearing, shall adopt regulations by April 1, 1989, which govern the use of methyl bromide and chloropicrin as field fumigants.
The director may prescribe the time when, and the conditions under which, methyl bromide and chloropicrin may be used in different areas of the state.
ARTICLE 5. Paraquat Dichloride [14085. - 14086.]
For purposes of this chapter, “pesticide” has the same meaning as specified in Section 12753.
On or before January 1, 2029, the department shall complete a reevaluation of paraquat dichloride pursuant to Section 12824, and make the determination to retain, cancel, or suspend its registration or to place new appropriate restrictions on the use of pesticide products containing the active ingredient paraquat dichloride.
CHAPTER 3.4. Private Applicator Certification [14090. - 14099.5.]
It is unlawful for a private applicator to possess, use, or supervise the use of a restricted material in accordance with Section 14015 unless that person has a valid private applicator certificate.
The application for a private applicator certificate or a renewal of the certificate shall be on a form prescribed by the director. Each application shall state the name and address of the applicant and any other information required by the director.
Applicants shall be examined on the requirements of statutes and regulations concerning pesticide use and pest control operations, including, but not limited to, knowledge of all of the following:
Label directions and restrictions on use.
Calibration.
Pest control equipment.
Pest problems and identification.
Worker protection, including protective clothing and equipment.
Environmentally sensitive areas.
The examination shall be in written form and shall be prepared by the director and administered by the commissioner, or the director in any county where there is no commissioner.
A passing score for the examination is 70 percent or above.
The commissioner, or the director in any county where there is no commissioner, shall issue a private applicator certificate to each applicant who passes the examination.
If a passing score of 70 percent is not achieved, the applicant may not retake the examination for seven calendar days.
A private applicator certificate shall be issued for a period of three years except that the initial term of a private applicator certificate shall expire as follows:
Certificates issued to private applicators on or after January 1, 1997, with surnames beginning with A to H, inclusive, shall expire on December 31 of each third year following December 31, 1997.
Certificates issued to private applicators on or after January 1, 1997, with surnames beginning with I to Q, inclusive, shall expire on December 31 of each third year following December 31, 1998.
Certificates issued to private applicators on or after January 1, 1997, with surnames beginning with R to Z, inclusive, shall expire on December 31 of each third year following December 31, 1999.
Certified private applicators may renew their certificate for a period of three years by completing the continuing education requirement as prescribed by the director, by regulation, or by passing an examination.
The commissioner, or the director in a county where there is no commissioner, may establish a program to certify employees other than the operator of the property, or other than the operator’s authorized representative. The commissioner’s or the director’s program shall be conducted in accordance with this chapter.
A private applicator certificate may be refused, revoked, or suspended by the commissioner or director for any of the following reasons:
Failure to comply with any applicable provision of this division or any regulation adopted pursuant thereto.
Failure to supervise the use of a restricted material in a manner that ensures compliance with this division or any regulation adopted pursuant thereto.
Making any false or fraudulent report.
Any action by the commissioner or the director pursuant to subdivision (a) may be appealed in a manner consistent with the procedures for appealing the suspension of a restricted material permit as prescribed in Section 11512.5.
This chapter shall become operative on January 1, 1997.
CHAPTER 3.5. Environmentally Harmful Material [14101. - 14103.]
ARTICLE 1. Definitions [14101. - 14101.]
As used in this division, “environment” means the aggregate of all factors that influence the conditions of life in or about the state or within any portion thereof, and which are affected by the use of pesticides or related materials within the state.
ARTICLE 2. General Provisions [14102. - 14103.]
The director shall prohibit or regulate the use of environmentally harmful materials, pursuant to the provisions of Chapters 2 (commencing with Section 12751) and 3 (commencing with Section 14001) of this division. In so doing, he shall consider the effect of all such materials upon the environment, and shall take whatever steps he deems necessary to protect the environment. He shall also continue to initiate, cooperate, and collaborate with the University of California and with other state agencies in research designed to reduce and eliminate the use of environmentally harmful materials.
In establishing criteria and regulations relating to environmental injury and protection, and in conducting the reviews required in Chapters 2 and 3, the director shall consult with representatives of the Water Resources Control Board, the Departments of Public Health, Fish and Game and Conservation, and four outside experts of his selection from the fields of agricultural, biological, ecological, and medical sciences.
CHAPTER 3.6. Qualified Applicator Certificates [14151. - 14155.]
The director may, by regulation, specify the pesticide applications that shall be made by or under the supervision of a person holding a valid qualified applicator certificate.
An application for a qualified applicator certificate shall be in the form prescribed by the director. Each application shall state the name and address of the applicant specified on the application and any other information required by the director. The application shall be accompanied by a fee as prescribed by the director pursuant to Section 11502.5. All certificates issued under this chapter shall expire on December 31 of the last year for which they are issued. Certificates may be renewed before their expiration through application in the form prescribed by the director and upon payment of a fee as prescribed by the director pursuant to Section 11502.5. A penalty shall be assessed against any applicant who applies for renewal after the expiration date as prescribed by the director pursuant to Section 11502.5.
Applicants shall be examined on the requirements of laws and regulations concerning pesticide use and shall elect to be examined for certification in one or more of the categories established by the director.
The director may designate subcategories within the categories established pursuant to Section 14153, as determined to be necessary.
The director shall issue a qualified applicator certificate to each applicant who satisfies the requirements of this chapter.
A qualified applicator certificate may be refused, revoked, or suspended by the director, after hearing, for any of the following:
Failure to comply with any applicable provision of this division or Division 6 (commencing with Section 11401) or any regulation adopted pursuant to these divisions.
Failure to supervise pesticide applications in a manner that ensures compliance with this division and Division 6 (commencing with Section 11401) or any regulation adopted pursuant to these divisions.
Making any false or fraudulent record or report.
CHAPTER 3.7. Carbon Monoxide Pest Control Devices [14160. - 14161.]
For purposes of this chapter, “carbon monoxide pest control device” means any method or instrument using carbon monoxide to prevent, eliminate, destroy, or mitigate burrowing rodent pests.
The director shall regulate the use of carbon monoxide pest control devices, and shall adopt and enforce regulations to provide for the proper, safe, and efficient use of these devices for the protection of public health and safety, and the environment.
CHAPTER 4. Livestock Drugs [14200. - 14390.]
ARTICLE 1. Legislative Intent [14200. - 14200.]
The Legislature hereby declares that this chapter, which prescribes the distribution and use of livestock drugs, is intended to assure that such drugs are available to livestock producers for their use in protecting the health of the livestock population of the state, and that such use will in turn benefit the general public by providing an abundant supply of wholesome food and fiber.
It is further declared that nothing in this chapter is intended to prevent a livestock producer from administering livestock drugs safely and effectively when such use is in accordance with the labeling directions for the drug used.
ARTICLE 1.5. Definitions [14201. - 14209.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Drug” means any of the following substances:
Any substance which is intended for use in the diagnosis, cure, mitigation, prevention, or treatment of disease.
Any substance, except food and water, which is intended to affect the structure or function of the body of any livestock.
“Restricted drug” means any livestock drug which is sold in such form that it might be administered to humans and if so administered would be dangerous to the health of such humans or any livestock drug which if improperly administered to livestock is dangerous to the health of such livestock or to humans who consume products from such livestock. Restricted drugs include all of the following:
Arsenic compounds and preparations.
Diethylstilbestrol and other substances which have a hormonelike action.
Sulfanilamide or substitute sulfanilamides.
Antibiotic preparations.
Such other drugs and their preparations which the director determines are hazardous to the health of livestock or the public safety.
“Label” includes written and graphic matter which is imprinted upon, or upon paper or other material affixed to, or accompanying, a container of a livestock drug.
“Livestock” includes all animals, poultry, and bees, and aquatic and amphibian species which are raised, kept, or used for profit. It does not include those species which are usually kept as pets, such as dogs, cats, and pet birds.
“Livestock drug” means any drug, combination of drugs, proprietary medicine, or combination of drugs and other ingredients which is prepared for administration to livestock orally, hypodermically, topically, or otherwise.
“Manufacturer” includes any person that is responsible for the placing of a livestock drug on the market in this state.
“Retailer” means any person that sells any livestock drug at retail.
“Distribute” means to offer for sale, sell, exchange, or barter.
ARTICLE 2. General Provisions [14231. - 14233.]
The director shall enforce this chapter and, in accordance with the provisions of Section 14200, may make and enforce such regulations which relate to the manufacture, sale, and use of livestock drugs as he may deem necessary to carry out this chapter.
All money which is received under this chapter shall be paid into the Department of Agriculture Fund. Any money in the Department of Agriculture Fund which is derived under this chapter and Chapter 6 (commencing with Section 14901) of this division may be expended for the administration and enforcement of any of the provisions of such chapters, notwithstanding any other provision which limits the expenditure of any such money to the specific purposes or to the administration or enforcement of each of such chapters separately.
The provisions of this chapter shall be controlling over those of any other provisions of law which are in conflict with them. No act or thing which is authorized or permitted by this chapter shall be in violation of any other provisions of law.
ARTICLE 3. Exemptions [14261. - 14262.]
This chapter, except Section 14363, does not apply to any of the following:
Any livestock drug which is sold exclusively to, and used exclusively by, or under the direction of, a licensed veterinarian, nor to any livestock drug which is compounded by a registered pharmacist upon the prescription of a licensed veterinarian.
Any drug or other preparation which is dispensed or compounded by a registered pharmacist at the request of the purchaser if such drug or preparation is sold at retail.
Any commercial feed which is subject to Chapter 6 (commencing with Section 14901) of this division, irrespective of the presence in such commercial feed of any ingredients which otherwise would constitute a livestock drug.
This chapter also does not apply to any of the following:
Any livestock drug that is intended for, and that is used solely for, laboratory or experimental purposes.
Any substance that is intended for, and that is used primarily as a pesticide and that is registered as a pesticide under Chapter 2 (commencing with Section 12751).
Any biological product that is manufactured under a license issued by the United States Department of Agriculture or the State Department of Health.
Any drug that is required by federal law to be sold on prescription only.
ARTICLE 4. Registration [14281. - 14296.]
A person shall not sell any livestock drug in this state prior to receipt of a registration certificate pursuant to this chapter.
The manufacturer of any livestock drug shall apply to the director for registration of the livestock drug.
The application shall be in a form which is supplied by the director. It shall show all of the following:
The name of the applicant and the address of his principal place of business.
The name, brand, or trademark under which the livestock drug is to be sold.
The minimum net contents of each size and type of container in which the livestock drug is to be sold at retail.
The name of each active drug ingredient and the quantity or proportion of each such ingredient.
A statement of each purpose for which the livestock drug is to be used.
A statement of the form in which the livestock drug is to be administered, the method of administration, and, if the method of administration involves the use of any special device which is supplied with such drug, a description of such device.
A statement of the amount and frequency of the dosage which is to be recommended.
Such other information and data as the director may require.
The application shall also contain a detailed description, or be accompanied by a copy, of the label of each type and size of container in which the livestock drug is be sold at retail.
The label shall contain all of the following:
The name, brand, or trademark of the livestock drug.
The name of the applicant and his principal address.
The minimum net contents of the container.
A statement of the disease or ailments of livestock which it is claimed that the livestock drug will alleviate or cure.
Adequate instructions as to use and administration and adequate warnings against improper use and administration of the livestock drug, including adequate withdrawal periods and product disposal times to prevent any dangerous drug residues in products produced by livestock for human consumption.
The name and amount of each active drug ingredient.
A statement which clearly indicates that the product is not for human use.
If the livestock drug is a restricted drug, the words “restricted drug, use only as directed” in conspicuous letters.
Such other information as the director may require to ensure proper use to safeguard the health of animals and humans who consume products from such animals.
If it is proposed that any instructions for use, other than those on the label, shall accompany containers of the livestock drug which are sold at retail, a copy of such instructions shall accompany the application for registration of the livestock drug.
The director shall examine and consider the application together with all material, data, and information which accompanies it.
The director shall refuse to register a livestock drug if he finds any of the following is true of the drug:
It is of little or no value for the purpose for which it is intended to be used.
It is dangerous to the health of livestock if used in accordance with the instructions.
The instructions for use do not contain adequate warnings against use in those conditions, whether pathological or normal, under which its use may be dangerous to the health of livestock or humans who consume products from such livestock, or against unsafe dosage, unsafe duration of use, or unsafe methods of administration.
If the application and the accompanying material, data, and information do not comply with the requirements of this chapter or are insufficient to permit the director to make the determinations which are required by this section.
If the livestock drug is a restricted drug, the director shall also refuse registration if he finds that the instructions for use do not contain adequate and satisfactory directions as to the methods of handling, caring for, holding, or otherwise managing the livestock to which the drug is administered so as to eliminate any danger to the health of any person who might consume food products which are derived from such livestock.
The registration of a livestock drug includes all of the following:
Registration of the drug and its ingredients.
Registration of the label.
Registration of the instructions for use.
Registration of the special device, if any, for the administration of the livestock drug.
The fee for a two-year registration certificate for a livestock drug is one hundred eighty dollars ($180). The certificate period shall commence beginning January 1 of each even-numbered year and expire on December 31 of the next odd-numbered year.
The fee for a registration certificate submitted during an odd-numbered year shall be ninety dollars ($90), and the certificate shall remain in effect until December 31 of that year.
The fee shall accompany the application for registration. The fee is not refundable if the registration is refused.
If registration is granted, the original fee covers the registration for the remainder of the then current calendar year in which registration is granted.
The fee for application for renewal of registration is one hundred eighty dollars ($180) for a two-year period. It is payable on or before January 31st of each year. If it is not so paid, a penalty of fifty dollars ($50) shall be added to the fee.
The director may quarantine and remove from sale any livestock drug which is not registered pursuant to this chapter or any livestock drug which does not conform in all respects with its registration.
The director shall have access at all reasonable hours to all premises which are used in the manufacture, sale, or storage of any livestock drug, or where livestock drugs are mixed in feed for administering to livestock. He may take samples and make such other investigations as are necessary to carry out this chapter and the regulations which are adopted pursuant to it.
The director may revoke the registration of any livestock drug if he finds, from representative samples, that the drug as offered for sale fails to conform to its registration. The director may allow reasonable tolerances within which such samples may vary from the registration.
ARTICLE 5. Retail Licenses for Restricted Drugs [14321. - 14330.]
A person shall not sell any restricted drug in this state at retail unless he holds a license to do so issued pursuant to this chapter.
Any person may file with the director an application for a license pursuant to this chapter. The application shall be on a form which is supplied by the director and shall contain such information as he may require.
The application shall be accompanied by an application fee of fifty dollars ($50). The fee is not refundable if the license is refused.
If the license is issued, the application fee covers the license for the remainder of the current calendar year in which it is issued.
The fee for the renewal application for a license is fifty dollars ($50) per year, payable on or before January 31 of each year. If the fee is not paid by that date, a penalty of fifty dollars ($50) shall be added to the fee.
A separate license is required for each place of business at which any restricted drug is kept for sale, and for each mobile unit in which any such drug is kept for sale.
The director may make an examination of the facilities which are available to the applicant for the proper handling and storing of restricted drugs and may limit the kinds or classes of such drugs that may be sold under a license to those which the applicant is equipped properly to handle and store.
Each holder of a license under this chapter shall keep a record, in the manner and form prescribed by the director, of each sale of a restricted drug by the licensee.
The record required pursuant to Section 14328 shall include all of the following:
A statement of the kind and quantity of the restricted drug sold.
The date of sale.
The name and address of the purchaser.
The signature of the purchaser.
Any other information as the director may determine is reasonably necessary to carry out the provisions of this chapter.
The director shall revoke a restricted drug license if he finds that the holder of such license has failed to keep the required record of sales of such drugs, or is not properly handling or storing such drugs.
ARTICLE 6. Violations [14351. - 14365.]
It is unlawful for any person to sell any livestock drug which is subject to any provision of this chapter unless the drug is registered pursuant to this chapter.
It is unlawful for any registrant to sell any livestock drug which does not conform with its registration.
It is unlawful for any person to administer any registered livestock drug to any human being.
It is unlawful for any person to sell any restricted drug unless such person has a license issued pursuant to this chapter.
It is unlawful for any person to use or administer any registered livestock drug except in accordance with the label instructions for use which are supplied by the registrant, including all warnings, withdrawal periods, and livestock product disposal times.
It is unlawful for the holder of a restricted drug license to sell a restricted drug without requiring the purchaser of the restricted drug to sign his name and write his address in the record of such sales.
It is unlawful for any person to refuse to permit the entry into and inspection of any premises wherein any livestock drug is manufactured or sold for the taking of samples of such drug.
It is unlawful for any person to sell any livestock drug except in the container in which it is packaged by the manufacturer or distributor or to sell any such drug unless its package bears the label of the manufacturer or distributor.
It is unlawful for any person to make any false or misleading representation which relates to any livestock drug, whether such representation is communicated orally, graphically, pictorially, or otherwise.
It is unlawful for any livestock owner or his or her agent to sell or dispose of treated livestock or livestock products within the specified withdrawal period without first notifying the buyer that the livestock or products have been treated. The notification shall be in a form prescribed by the director.
The director may seize and hold any livestock drug which he has reasonable cause to believe is in violation of the provisions of this chapter or the regulations adopted pursuant to it. The director shall continue to hold the livestock drug until such time as the requirements of this chapter have been complied with, at which time the lot shall be released. If the requirements of this chapter cannot be complied with, the director shall issue an order for disposal of the livestock drug, in a manner determined by him to protect the public health and safety and accomplish purposes of this chapter.
It is unlawful for any person to manufacture, distribute, sell, or use any livestock drug without complying with the provisions of this chapter and the regulations which are adopted pursuant to it.
It is unlawful for any livestock owner or agent to sell or dispose of any livestock or livestock carcasses which within 48 hours after the buyer takes possession have drug residues in excess of allowable federal or state tolerances. In addition to any other penalties imposed by this chapter, any livestock owner or agent violating this section shall be liable to the buyer for an amount equal to three times the purchase price of any livestock or livestock carcasses with drug residues in excess of allowable federal or state tolerances so long as the liability does not conflict with the federal Packers and Stockyards Act, and shall be liable for a civil penalty of not more than one hundred dollars ($100) for each head of livestock or livestock carcass disposed of or sold. In addition, the livestock owner or agent shall be liable for any attorney’s fees.
In addition to the penalties imposed by this chapter, the sale or disposition of any livestock or livestock carcass which, within 48 hours after the buyer takes possession, has drug residue in excess of allowable federal or state tolerances, is punishable by an administrative fine, levied by the director, in the amount of two hundred fifty dollars ($250) per head for a second or subsequent violation within a 12-month period.
In lieu of assessing the administrative fine, the director may authorize a violator to attend an educational program on livestock drug residue avoidance which has been approved by the director. The violator shall successfully complete the program and provide proof to the director within 90 days from the occurrence of the violation.
This section does not affect any rights or obligations under any contract between a livestock owner or agent, buyer, or any other party.
Any additional funds collected as administrative fines pursuant to this section shall be deposited in the General Fund.
It is unlawful to sell or dispose of a bob veal calf for the purposes of slaughter without first affixing to the animal a producer identification number approved by the director.
For purposes of this chapter, “bob veal calf” means a bovine animal 21 days of age or less or weighing 150 pounds or less, or as specified in Food Safety Inspection Service regulations of the United States Department of Agriculture.
Bob veal calves that are identified as provided in Division 10 (commencing with Section 20001) are exempt from this section.
It is unlawful to sell or dispose of a dairy cull cow without first affixing to the animal a producer identification number issued by the director.
For purposes of this chapter, “cull cow” means a female bovine animal 21 days of age or more, which is sold or disposed of for the purpose of slaughter.
Cull cows that are identified as provided in Division 10 (commencing with Section 20001) are exempt from this section.
ARTICLE 7. Penalties [14381. - 14382.]
A violation of this chapter or of any regulation which is adopted by the director pursuant to this chapter is an infraction punishable by a fine of not more than five hundred dollars ($500) for the first violation. A second or subsequent violation of this chapter is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000).
The director may, after a hearing, refuse to issue or renew, or may suspend or revoke a livestock drug registration or restricted drug license for any violation of this chapter or any regulation which is adopted pursuant thereto.
Upon calling a hearing, the director shall serve notice personally or by mail to the licensee or registrant specifying the time and place of the hearing at least 10 days prior to the hearing. At the hearing, the director may do all of the following:
Administer oaths and hear testimony.
Issue subpoenas requiring the attendance of the licensee, registrant, or witnesses, together with books, records, memoranda, papers, and all other documents that may be pertinent to the case.
Compel the disclosure of the licensee or registrant and any witness of all the facts known to him or her regarding the case. In no instance shall any employee of the Feed, Fertilizer, and Livestock Drugs Branch serve as the hearing officer in any case under this section.
Any person deprived of a license or registration has the right to appeal this action to the director.
ARTICLE 8. Procedure for Prosecution [14390. - 14390.]
In addition to the remedies provided in this chapter, the department may bring an action in superior court and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this chapter or the rules and regulations adopted under this chapter. Any proceeding under the provisions of this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. The department shall not, however, be required to allege facts necessary to show or tending to show irreparable damage or loss. The court may require such acts or course of conduct as necessary to effectuate the purpose of this chapter.
CHAPTER 4.5. Livestock: Use of Antimicrobial Drugs [14400. - 14408.]
For purposes of this chapter, the following definitions apply:
“Medically important antimicrobial drug” means an antimicrobial drug listed in Appendix A of the federal Food and Drug Administration’s Guidance for Industry #152, including critically important, highly important, and important antimicrobial drugs, as that appendix may be amended.
“Livestock” means all animals and poultry, including aquatic and amphibian species, that are raised, kept, or used for profit. Livestock does not include bees or those species that are usually kept as pets, such as dogs, cats, and pet birds.
“Veterinary feed directive” has the same definition as in Section 558.3 of Title 21 of the Code of Federal Regulations.
A medically important antimicrobial drug shall not be administered to livestock unless it is ordered by a licensed veterinarian through a prescription or veterinary feed directive that complies with federal and state law, including, but not limited to, Part 514 (commencing with Section 514.1), Part 530 (commencing with Section 530.1), and Part 558 (commencing with Section 558.3) of Subchapter E of Chapter I of Title 21 of the Code of Federal Regulations and Section 4826.6 of the Business and Professions Code. A prescription for labeled use of a medically important antimicrobial drug shall be issued pursuant to a veterinarian-client-patient relationship that meets the requirements of Section 4826.6 of the Business and Professions Code. Veterinary feed directives and prescriptions for extralabel use of a medically important antimicrobial drug shall be issued pursuant to a veterinarian-client-patient relationship that meets the requirements of Section 530.3 of Title 21 of the Code of Federal Regulations.
Beginning January 1, 2018, a medically important antimicrobial drug may be used when, in the professional judgment of a licensed veterinarian, the medically important antimicrobial drug is any of the following:
Necessary to treat a disease or infection.
Necessary to control the spread of a disease or infection.
Necessary in relation to surgery or a medical procedure.
A medically important antimicrobial drug may also be used when, in the professional judgment of a licensed veterinarian, it is needed for prophylaxis to address an elevated risk of contraction of a particular disease or infection.
A person shall not administer a medically important antimicrobial drug to livestock solely for purposes of promoting weight gain or improving feed efficiency.
Unless the administration is consistent with subdivision (a), a person shall not administer a medically important antimicrobial drug in a regular pattern.
Notwithstanding Sections 14401 and 14402 of this code and Article 15 (commencing with Section 4196) of Chapter 9 of Division 2 of the Business and Professions Code, medically important antimicrobial drugs may be sold by retailers licensed pursuant to Article 5 (commencing with Section 14321) of Chapter 4 of Division 7 with a prescription or veterinary feed directive from a licensed veterinarian.
This section shall not be construed to invalidate the requirement to obtain a prescription or veterinary feed directive to administer a medically important antimicrobial drug as required by Section 14401.
The department may promulgate regulations to implement this section.
The department, in consultation with the Veterinary Medical Board, the State Department of Public Health, universities, and cooperative extensions, shall develop antimicrobial stewardship guidelines and best management practices for veterinarians, as well as livestock owners and their employees who are involved with administering medically important antimicrobial drugs, on the proper use of medically important antimicrobial drugs for disease treatment, control, and prevention. The guidelines shall include scientifically validated practical alternatives to the use of medically important antimicrobial drugs, including, but not limited to, the introduction of effective vaccines and good hygiene and management practices.
The department shall consult with livestock producers, licensed veterinarians, and any other relevant stakeholders on ensuring livestock timely access to treatment for producers in rural areas with limited access to veterinary care.
For purposes of this section, “antimicrobial stewardship” is a commitment to do all of the following:
To use medically important antimicrobial drugs only when necessary to treat, control, and, in some cases, prevent, disease.
To select the appropriate medically important antimicrobial drug and the appropriate dose, duration, and route of administration.
To use medically important antimicrobial drugs for the shortest duration necessary and to administer them to the fewest animals necessary.
It is the intent of the Legislature that the department coordinate with the United States Department of Agriculture, the federal Food and Drug Administration, and the federal Centers for Disease Control and Prevention to implement the expanded antimicrobial resistance surveillance efforts included in the National Action Plan for Combating Antibiotic-Resistant Bacteria, and that the information gathered through this effort will help lead to a better understanding of the links between antimicrobial use patterns in livestock and the development of antimicrobial resistant bacterial infections.
The department shall gather information on medically important antimicrobial drug sales and usage, as well as antimicrobial resistant bacteria and livestock management practice data. Monitoring efforts shall not be duplicative of the National Animal Health Monitoring System and the National Antimicrobial Resistance Monitoring System, and, to the extent feasible, the department shall coordinate with the United States Department of Agriculture, the federal Centers for Disease Control and Prevention, and the federal Food and Drug Administration in the development of these efforts.
In coordinating with the National Animal Health Monitoring System and the National Antimicrobial Resistant Monitoring System, the department shall gather representative samples from all of the following:
California’s major livestock segments.
Regions with considerable livestock production.
Representative segments of the food production chain.
The department shall work with willing participants to gather samples and shall consult with, and conduct outreach to, livestock producers, licensed veterinarians, and any other relevant stakeholders on the implementation of the monitoring efforts. Participation in this effort shall be done in a manner that does not breach veterinary-client-patient confidentiality laws.
The department shall seek funds from federal, state, and other sources to implement this section.
The department may promulgate regulations to implement this section.
The department has the authority to request and receive copies of veterinary feed directives from the livestock owner, veterinarian, or distributor to fully implement the provisions of this chapter.
Notwithstanding the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code), any information provided pursuant to this chapter and Section 14902.5 shall be held confidential, and shall not be disclosed to any person or governmental agency, other than the department or the Veterinary Medical Board, for the purposes of enforcing the Veterinary Medicine Practice Act (Chapter 11 (commencing with Section 4800) of Division 2 of the Business and Professions Code), unless the data is aggregated to prevent the identification of an individual farm or business. Information may be shared with federal agencies so long as it is protected by the federal Confidential Information Protection and Statistical Efficiency Act of 2002 (Public Law 107-347).
A person who violates this chapter shall be liable for a civil penalty of not more than two hundred and fifty dollars ($250) for each day a violation occurs.
For a second or subsequent violation, a person who violates this chapter shall be punishable by an administrative fine, levied by the secretary, in the amount of five hundred dollars ($500) for each day a violation occurs.
In addition to the administrative fine, the violator shall attend an educational program on the judicious use of medically important antimicrobial drugs that has been approved by the secretary. The violator shall successfully complete the program and provide proof to the secretary within 90 days from the occurrence of the violation.
Subdivisions (a) and (b) do not apply to licensed veterinarians. If the Veterinary Medical Board determines that a veterinarian is in violation of the Veterinary Medicine Practice Act (Chapter 11 (commencing with Section 4800) of Division 2 of the Business and Professions Code), the veterinarian may be subject to disciplinary sanctions pursuant to the act.
The moneys collected pursuant to this article shall be deposited into the Department of Food and Agriculture Fund and shall be available for expenditure upon appropriation by the Legislature.
CHAPTER 5. Fertilizing Materials [14501. - 14682.]
ARTICLE 1. General Provisions [14501. - 14505.]
The Legislature finds and declares that it is the intent of this chapter to do all of the following:
To promote the distribution of effective and safe fertilizing materials essential for the production of food and fiber.
To provide assurance to the consumer of commercial fertilizers, agricultural minerals, and beneficial substances that the product purchased is properly identified, and to provide assurance of the validity of the quality and quantity represented by the manufacturer of these products.
To provide funds for the administration and enforcement of this chapter.
The secretary shall enforce this chapter and adopt and enforce regulations relating to the manufacture, guaranteeing, labeling, and distribution of, the manner of reporting tonnage for, and making inspection tonnage fee payments upon, fertilizing materials as the secretary determines necessary to carry out this chapter. A copy of those regulations shall be made available promptly upon adoption to each person who is licensed pursuant to this chapter. The failure of any licensee to receive a copy of the regulations is not a defense to a violation of the regulations.
The secretary shall notify every licensee that manufactures, distributes, or sells ammonium nitrate, as defined in Section 14512.5, of their duty to maintain records pursuant to Section 14612.5 and to notify the secretary as to where those records may be obtained by him or her.
Any money which is received by the director pursuant to this chapter shall be paid into the State Treasury to the credit of the Department of Food and Agriculture Fund, to be expended solely for the administration and enforcement of this chapter.
The secretary shall prepare an annual statement of the operating expenditures and revenue related to this chapter which shall be presented to the board for review as soon as possible following the termination of the fiscal year. A copy of this statement shall be made available to any interested person upon request.
Agricultural products derived from municipal sewage sludge shall be regulated as a fertilizing material pursuant to this chapter, and when used in general commerce, these products are not subject to regulation as a hazardous substance pursuant to Section 108130) of the Health and Safety Code and are not subject to regulation as a waste under Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code.
ARTICLE 2. Definitions [14511. - 14564.]
“Agricultural liming materials” are agricultural minerals composed of calcium or magnesium compounds, or both, which are capable of neutralizing soil acidity and which are distributed in this state for that purpose.
“Agricultural mineral” means any substance with nitrogen (N), available phosphoric acid (P2O5), and soluble potash (K2O), singly or in combination, in amounts less than 5 percent which is distributed for farm use, or any substance only containing recognized essential secondary nutrients or micronutrients in amounts equal or greater than minimum amounts specified by the director, by regulation, and distributed in this state as a source of these nutrients for the purpose of promoting plant growth. It shall include gypsum, liming materials, manure, wood fly ash, sewage sludge not qualifying as commercial fertilizer, and captured dilute solutions.
“Ammonium nitrate” means solid ammonium nitrate that is chiefly the ammonium salt of nitric acid, contains not less than 33 percent of nitrogen, one-half of which is in the ammonium form and one-half of which is in the nitrate form, and is produced, imported, stored, offered for sale, sold, offered for distribution, received, or intended for use as a plant nutrient.
“Beneficial substance” means any substance or compound, other than primary plant nutrients, secondary plant nutrients, and micronutrients, and excluding pesticides, that can be demonstrated by scientific research to be beneficial to one or more species of plants, soil, or media. A beneficial substance includes, but is not limited to, plant biostimulants.
“Biochar” means materials derived from thermochemical conversion of biomass in an oxygen-limited environment containing at least 60 percent carbon.
“Biotics” means all materials for which claims are made relating to organisms, enzymes, or organism by-products.
“Board” means the Fertilizer Inspection Advisory Board.
“Brand” means any term, design, or trademark used in connection with a fertilizing material product.
“Bulk material” means fertilizing materials distributed in nonpackaged form or in a container containing more than 50 kilograms or 110 pounds.
“Business location” means any place where fertilizing materials are sold or stored for later sale, except storage of package materials on premises operated exclusively as a public warehouse.
“Captured dilute solutions” means solutions that contain low levels of plant nutrients as a result of equipment rinsing and runoff.
“Chelates” means compounds, usually organic, which can combine with a metal ion and form a ring structure between a portion of the chelating agent molecule and the metal.
“Chelated plant nutrients” means compounds of metallic secondary nutrients and micronutrients with organic chelating agents which have the property of being available under pH conditions in which the nutrients normally form insoluble compounds.
“Commercial fertilizer” means any substance which contains 5 percent or more of nitrogen (N), available phosphoric acid (P2O5), or soluble potash (K2O), singly or collectively, which is distributed in this state for promoting or stimulating plant growth. “Commercial fertilizer” includes both agricultural and specialty fertilizers. “Specialty fertilizers” may contain less than 5 percent nitrogen (N), available phosphoric acid (P2O5), or soluble potash (K2O), singly or collectively.
“Common carrier” means a company licensed with the Public Utilities Commission that hauls for hire.
“Complex” means bonding which includes both of the following:
“Natural organic complexes” means organic by-products of the wood pulp and other industries, such as the lignin sulfonates and polyflavinoids, that form complexes with metallic secondary nutrients and micronutrients. “Natural organic complexes” do not include synthetic chelates in that natural organic complex, generally known as the natural organic chelates which are polymers, for which the nature of the metallic bonding is not known.
“Inorganic complexes” include inorganic cations which form coordinate chemical bonds with other inorganic cations, anions, or neutral molecules, such as where metal-ammonia complexes of zinc or ammonia are coordinately bonded to the metal cation, and which usually reacts differently than the metal alone in solutions, but dissociates in soil and reacts as the uncomplexed cation.
“Compost” means a biologically stable material derived from the composting process.
“Composting” means the biological decomposition of organic matter which inhibits pathogens, viable weed seeds, and odors. “Composting” may be accomplished by mixing and piling in a way as to promote aerobic or anaerobic decay, or both.
“Derivation statement” means the sources of all guaranteed primary nutrients or secondary nutrients, or both, and micronutrients.
“Discontinued manufacturing” means a beneficial substance, packaged agricultural mineral, organic input material, and specialty fertilizer that is no longer manufactured, but is still offered for sale.
“Distribute” means to sell, offer, expose for sale, exchange, barter, or otherwise supply products for use in, or shipment within or into, this state.
“Distributor” means any person who imports or consigns a fertilizing material or who offers for sale, sells, barters, or othewise supplies this product for use in, or shipment within or into, this state.
“Experimental use” means any application of a fertilizing material which is not offered for sale, has no commercial value, and is for the sole purpose of obtaining scientific data.
“Farm use” means that the fertilizing material is used primarily for application to crops produced for commercial value.
“Fertilizing material” means any commercial fertilizer, agricultural mineral, beneficial substance, or organic input material.
“Fish emulsion” means fertilizing material from which the guaranteed nutrients are derived primarily from fish, which contains a minimum of 40 percent total solids from fish, and which may contain additional sources of nitrogen, available phosphoric acid, and soluble potash for standardization purposes or stabilization purposes, or for both purposes, that shall be included in the required guaranteed analysis and derivation statement.
“Grade” means the percentage of total nitrogen, available phosphoric acid, and soluble potash stated in the same terms, order, and percentage as the guaranteed analysis.
“Guaranteed analysis” means the minimum percentage of primary or secondary plant nutrients or micronutrients, or both, claimed.
“Gypsum” means calcium sulfate dihydrate, a mineral used in the fertilizer industry as a source of calcium and sulfur which is also known as landplaster.
“Phosphatic sulfate gypsum” means a by-product of calcium dihydrate from the manufacture of phosphoric acid, also known as phosphogypsum.
“Hydroponics” means a system in which water soluble primary or secondary plant nutrients or micronutrients, or combination thereof, are placed in intimate contact with the plant’s root system, being grown in a water or an inert supportive medium which supplies physical support for the roots but which does not add or subtract primary or secondary plant nutrients or micronutrients, or both.
“Investigational allowance” means an allowance for variation inherent in the taking, preparation, and analysis of an official sample of fertilizing materials.
“Label” means the display of all written, printed, or graphic matter on the immediate container of, or a statement, including the guaranteed analysis, accompanying fertilizing material.
“Label guarantor” means the manufacturer’s or person’s name appearing on the label of a fertilizing material.
“Labeling” means all written, printed, or graphic matter on, accompanying, or used in promoting the sale of any fertilizing material, including advertisements, brochures, posters, internet websites, and television and radio announcements.
“Licensee” means a person who has obtained a license pursuant to this chapter.
“Manufacturer” means a person who produces, sells, or distributes a fertilizing material in this state that bears their company name on the label and is the guarantor.
“Manure” means any substances composed primarily of animal excrement, plant remains, or mixtures of those substances.
“Micronutrients” means boron, chlorine, cobalt, copper, iron, manganese, molybdenum, sodium, or zinc, alone or in any combination.
“Mixed fertilizer” is a commercial fertilizer containing any combination or mixture of fertilizing materials.
“Natural organic fertilizer” means materials derived from either plant or animal products containing one or more nutrients other than carbon, hydrogen, and oxygen, which are essential for plant growth, which may be subjected to biological degradation processes under normal conditions of aging, rainfall, sun-curing, air drying, composting, rotting, enzymatic, or anaerobic/aerobic bacterial action, or any combination of these, which shall not be mixed with synthetic materials or changed in any physical or chemical manner from their initial state except by physical manipulations such as drying, cooking, chopping, grinding, shredding, or pelleting.
“Noncommercial use” means materials used primarily for application to lawns, shrubbery, flowers, trees, or where there is no crop for commercial value or economic purpose, excluding golf courses, cemeteries, and nurseries.
“Official sample” means any sample of fertilizing material taken by an agent of the department and designated as “official” by the department.
“Organic input material” means any bulk or packaged commercial fertilizer, agricultural mineral, beneficial substance, or specialty fertilizer, excluding pesticides, that is to be used in organic crop and food production and that complies with the requirements of the National Organic Program standards, as specified in Part 205 (commencing with Section 205.1) of Subchapter M of Chapter I of Subtitle B of Title 7 of the Code of Federal Regulations.
“Packaged” means a fertilizing material distributed in packaged form or in a container containing equal to or less than 50 kilograms or 110 pounds.
“Percent or percentage” means percentage by weight.
“Person” means individual, partnership, association, firm, limited liability company, or corporation who assumes responsibility for the product.
“Plant” means any business location where fertilizing materials are manufactured, sold, or stored for later sale, except storage of packaged materials on premises operated exclusively as a public warehouse.
“Plant biostimulant” means a substance or microorganism, or mixtures thereof, that, when applied to seeds, plants, the rhizosphere, soil, or other growth media, act to support a plant’s natural nutrition processes independently of the biostimulant’s nutrient content. The plant biostimulant thereby may improve nutrient availability, uptake, or use efficiency, tolerance to abiotic stress, and consequent growth, development, quality, or yield.
“Primary plant nutrient” means nitrogen (N), available phosphoric acid (P2O5), or soluble potash (K2O).
“Provisional registration” means that under certain circumstances, a label for renewal on a beneficial substance, packaged agricultural mineral, organic input material, or specialty fertilizer, alone or in any combination, may be registered for a limited period of time while labels are being corrected and reprinted or during registration renewal.
“Registrant” means any person who has registered a packaged agricultural mineral, beneficial substance, organic input material, or specialty fertilizer.
“Secondary plant nutrient” means calcium, magnesium, or sulfur, alone or in any combination.
“Secretary” means the Secretary of Food and Agriculture.
“Sewage sludge” means the solid material resulting from the treatment of waste water of residential or municipal sewage systems.
“Soil conditioners” means polyelectrolytes, such as complex vinyl and acrylic compounds and certain cellulose and lignin derivatives, which tend to agglomerate soil colloids and produce a crumb structure in the soil and increase the permeability of the soil to air and water and increase its resistance to crusting when it dries out.
“Soilless growing medium” means a medium of an inorganic substance, such as sand or gravel, or in a soilless organic material such as sphagnum peat or pine bark, and periodically watered with a primary or secondary plant nutrient or micronutrient solution, or both.
“Specialty fertilizer” means packaged commercial fertilizer labeled for home gardens, lawns, shrubbery, flowers, and other similar noncommercial uses. These products may contain less than 5 percent nitrogen (N), available phosphoric acid (P2O5), or soluble potash (K2 O), singly or collectively, detectable by chemical methods.
“Ton” means a net weight of 2,000 pounds avoirdupois.
ARTICLE 3. Fertilizer Inspection Advisory Board [14581. - 14586.]
There is, in the department, a Fertilizer Inspection Advisory Board consisting of nine persons appointed by the secretary, eight of whom shall be licensed under this chapter and subject to the payment of the inspection fee in accordance with this chapter, and one of whom shall be a public member. The members of the board shall receive no compensation, but are entitled to payment of necessary traveling expenses in accordance with the rules of the Department of Human Resources. These expenses shall be paid out of appropriations made to the department pursuant to this chapter.
The term of office of a member of the board is three years. The initial board shall consist of, three members appointed for a term of three years, three members appointed for a term of two years, and three members appointed for a term of one year. Thereafter, appointments shall be for full three-year terms. Vacancies shall be filled for the duration of an unexpired term.
The board shall be advisory to the secretary and may make recommendations on all matters pertaining to this chapter, including, but not limited to, the inspection and enforcement program, research and education, the annual budget, necessary fees to provide adequate inspection services, and regulations required to accomplish the purposes of this chapter.
The secretary, by January 1, 2012, and in consultation with the board, shall review the definition of organic input materials in Section 14550.5 and identify oversight and implementation issues that may arise or have arisen on account of that definition. The review shall also include an examination of materials not currently regulated under this definition that may warrant oversight by the department so as to protect the state’s agricultural industry, including the organic industry, and recommendations for any necessary statutory changes.
The secretary shall post the review required pursuant to subdivision (a) in a report on the Internet Web site of the department.
The board shall elect a chairperson and other officers as it deems advisable.
The board shall meet at the call of the chairperson or the secretary, or at the request of any five members of the board. The board shall meet at least once a year.
The secretary shall accept the recommendations of the advisory board pertaining to subdivision (b) of Section 14611 if he or she finds them to be practicable and in the interests of the fertilizer industry and the public. If the secretary does not accept the recommendations of the advisory board, or any part thereof, the secretary shall provide the board with a written statement within 15 working days of making his or her decision stating the reasons for not accepting the recommendations, or any part thereof.
ARTICLE 4. Licensing [14591. - 14593.]
Every person who manufactures or distributes fertilizing materials shall, before engaging in the activity, obtain a license from the secretary for each plant and business location that the person operates. Before issuing a license, the secretary shall require verification that the applicant is a manufacturer or distributor of fertilizing material compliant with this chapter. All licenses shall be renewed in January of each odd-numbered year, and shall be valid until December 31 of the following even-numbered year, if issued in January of that same year. However, a person who only distributes or who makes retail sales of packaged agricultural minerals, packaged commercial fertilizers, organic input material, or packaged beneficial substances, alone or in any combination, which bear the registered label of another licensed person, is not required to obtain the license.
Every person who manufactures or distributes, or intends to manufacture or distribute, ammonium nitrate as defined in Section 14512.5, in this state, shall inform the secretary of that activity or intent when applying for a license. The license obtained by that person shall identify that person as a manufacturer or distributor of ammonium nitrate.
The license fee shall not exceed three hundred dollars ($300). The secretary may, based on the findings and recommendations of the board, reduce the license fee to a lower rate that provides sufficient revenue to carry out this chapter.
A violation of this article is an infraction punishable by a fine of not more than five hundred dollars ($500). A second or subsequent violation of this article is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000).
The license shall expire on December 31, of an even-numbered year. Each application for renewal shall be accompanied by a fee not to exceed two hundred dollars ($200) for each plant or business location which a person operates. If a license is not renewed within one calendar month following expiration, a penalty of fifty dollars ($50) shall be added to the fee and an additional penalty of fifty dollars ($50) shall be added for each succeeding calendar month the business location remains unlicensed. The total penalty, however, shall not exceed 100 percent of the original amount due.
ARTICLE 5. Registration [14601. - 14604.]
Each differing label, other than weight or package size, such as changes in the guaranteed analysis, derivation statement, or anything that implies a different product, for specialty fertilizer, packaged agricultural mineral, beneficial substance, and organic input material shall be registered. The department may develop a schedule for all registrations to be submitted to the department for approval, and registrations shall be valid for up to four years. The registration fee shall not exceed four hundred dollars ($400) per product, except for organic input material.
Any substance distributed for the purpose of promoting plant growth or improving the quality of crops by conditioning soils solely through physical means or that is intended for use solely because of its physical properties shall not require registration if distributed in bulk quantities, excluding organic input material and biochar.
For purposes of this subdivision, those bulk materials include, but are not limited to, hay, straw, sand, wood products, manures, and compost sold without guarantees for plant nutrients.
Notwithstanding subdivision (a), the registration fee for organic input material shall not exceed one thousand dollars ($1,000) per product, as the registration of organic input material labels require additional departmental resources and review time to ensure that nutrient guarantees and claims are scientifically feasible and meet National Organic Program standards. Funds generated from the registration of organic input material shall be deposited into the Organic Input Materials Account in the Department of Food and Agriculture Fund and, notwithstanding Section 221, shall be available upon appropriation by the Legislature.
The secretary may, based on the findings and recommendations of the board, reduce the registration fees to a lower rate that provides sufficient revenue to carry out this chapter.
Registrations may not be issued without a current license.
The secretary may require proof of labeling statements and other claims made for any specialty fertilizer, agricultural mineral, organic input material, or beneficial substance, before the secretary registers any such product. As evidence of proof, the secretary may rely on experimental data, evaluations, or advice furnished by scientists, including scientists affiliated with the University of California, and may accept or reject additional sources of proof in the evaluation of any fertilizing material. In all cases, experimental proof shall relate to conditions in California under which the product is intended for use.
The secretary may perform site inspections of organic input material manufacturing processes used to validate label nutrient guarantees, claims, and compliance with National Organic Program standards giving priority to inspecting high-risk products and manufacturers. The department may accept inspections performed by a third-party organization approved by the secretary for organic input material manufacturers. All inspection records obtained by a contracted third-party organization shall be made available to the secretary upon request. When a contracted third-party organization is conducting a site inspection, the organization shall notify the department of when the inspection is going to take place no less than 72 hours in advance of the inspection. Department representatives may be present at the inspection.
The secretary, after hearing, may cancel the registration of, or refuse to register, any specialty fertilizer, packaged soil amendment, organic input material, or beneficial substance, that the secretary determines is detrimental or injurious to plants, animals, public safety, or the environment when it is applied as directed, that is known to be of little or no value for the purpose for which it is intended, or for which any false or misleading claim is made or implied. The secretary may cancel the registration of any product of any person who violates this chapter.
The proceedings to determine whether to cancel or refuse registration of any of those products shall be conducted pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The secretary shall have all the powers that are granted pursuant to Chapter 5.
A violation of this article is an infraction punishable by a fine of not more than five hundred dollars ($500). A second or subsequent violation of this article is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000).
Each application for renewal shall be accompanied by a fee not to exceed four hundred dollars ($400) for each product label or one thousand dollars ($1,000) for each organic input material product label. If a registration is not renewed within one calendar month following expiration, a penalty of fifty dollars ($50) per product label shall be added to the fee.
The secretary may grant a provisional registration for a period not exceeding six months for a registered product undergoing renewal. All fees shall be paid before the issuance of any provisional registration.
ARTICLE 6. Inspection Fees [14611. - 14613.]
A licensee whose name appears on the label who sells or distributes bulk fertilizing materials, as defined in Sections 14517 and 14533, to unlicensed purchasers, shall pay to the secretary an assessment not to exceed two mills ($0.002) per dollar of sales for all fertilizing materials. A licensee whose name appears on the label of packaged fertilizing materials, as defined in Sections 14533 and 14551, shall pay to the secretary an assessment not to exceed two mills ($0.002) per dollar of sales.
The secretary may adjust the mill assessment rate based upon a finding and recommendation of the board of a proposed rate. The mill assessment rate shall not exceed the maximum rate established by this section. Setting the mill assessment rate shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
In addition to the assessment provided in subdivision (a), the secretary may impose an assessment in an amount not to exceed one mill ($0.001) per dollar of sales for all sales of fertilizing materials, to provide funding for research and education regarding the use and handling of fertilizing material, including, but not limited to, support for the University of California Cooperative Extension, the California resource conservation districts, other California institutions of postsecondary education, or other qualified entities to develop programs in the following areas:
Technical education for users of fertilizer materials in the development and implementation of nutrient management projects that result in more agronomically sound uses of fertilizer materials and minimize the environmental impacts of fertilizer use, including, but not limited to, nitrates in groundwater and emissions of greenhouse gases resulting from fertilizer use.
Research to improve nutrient management practices resulting in more agronomically sound uses of fertilizer materials and to minimize the environmental impacts of fertilizer use, including, but not limited to, nitrates in groundwater and emissions of greenhouse gases resulting from fertilizer use.
Education to increase awareness of more agronomically sound use of fertilizer materials to reduce the environmental impacts resulting from the overuse or inefficient use of fertilizing materials.
Each licensee shall maintain in this state, or with the secretary’s permission, at another location, an accurate record of all transactions subject to assessment. These records shall be maintained for a period of not less than three years following the transaction and are subject to audit by the secretary.
Every licensee that manufactures, distributes, or sells ammonium nitrate, as defined in Section 14512.5, shall maintain in this state, or with the secretary’s permission, at another location, all of the following information with respect to sales of ammonium nitrate:
The names, addresses, and driver’s license and telephone numbers of purchasers. The name and address of each purchaser shall be verified against a valid California driver’s license, unless the fertilizer is shipped to a wholesale purchaser outside of the state.
The date of each sale.
The total amount of material sold.
The information collected by licensees pursuant to subdivision (a) shall be kept for a period of at least three years and shall be made available only to the secretary or law enforcement officials upon request.
The payment required by Section 14611, together with a form containing information prescribed by the secretary, shall be made quarterly within one calendar month after March 31, June 30, September 30, and December 31 of each year, and that form shall be submitted on or before those dates even if no fertilizer materials are sold. For any delinquency in making the payment, or any deficiency in payment, the director shall add a penalty of 15 percent to the delinquent payment. Any delinquency which is more than 90 days past due is a cause for cancellation of the license.
ARTICLE 7. Tonnage Reports [14621. - 14623.]
The last licensee selling or distributing fertilizing material shall submit a tonnage report, on a form or a computer printout format approved by the secretary, containing information on shipments received or deliveries made during specified periods designated by the secretary.
The secretary shall publish, at least annually, a tonnage report. The secretary shall distribute the report and may charge a fee to cover the actual cost of publishing and distributing the report.
Any information furnished to the secretary under this chapter shall not be disclosed in such a way as to divulge the business practices of any licensee.
The tonnage report shall be submitted to the secretary semiannually as specified by regulation. The secretary shall impose a late fee in the amount of two hundred dollars ($200) on any person who does not submit the report on or before the required dates. If a person has obtained multiple fertilizing materials licenses and the reports are submitted after the required dates, the late fee is limited to one two-hundred-dollar ($200) late fee per person. Any tonnage report that is more than 90 days past due is a cause for revocation of the license.
ARTICLE 8. Labels [14631. - 14631.]
Every lot, parcel, or package of fertilizing material distributed into or within this state shall have attached to it, or the shipment shall be physically accompanied by, a label as required by the secretary, by regulation. The secretary may require proof of labeling statements and claims made for any fertilizing material. As evidence of proof, the secretary may rely on experimental data, evaluations, or advice furnished by scientists, including scientists affiliated with the University of California, and may accept or reject additional sources of proof. The secretary shall cancel the approval of, or refuse to approve, a fertilizing material label if the secretary determines that adequate proof of label claims does not exist. The secretary, after hearing, may cancel the license of any person who distributes a fertilizing material with a label for which approval has been canceled or a label that has not been approved by the secretary.
ARTICLE 9. Inspection, Sampling, and Analysis [14641. - 14648.]
The secretary shall have free access at reasonable times to all records, premises, production processes, or conveyances that are used in the manufacture, transportation, importation, distribution, storage, or application of any fertilizing material.
The secretary shall, at the times and to the extent necessary for the enforcement of this chapter, do all of the following:
Take samples of any substance.
Make analyses or examinations of any substance.
Conduct investigations concerning the use, sale, adulteration, or misbranding of any substance.
Inspect the fertilizing material manufacturing facilities and take samples at various stages of production to verify label and labeling claims and production processes.
In determining the percentage of component parts of any substance for the purpose of proper labeling, registration, or determining compliance with representations, all analyses shall be made according to a method determined by the secretary.
The secretary shall publish, at least annually, the results of examinations or chemical analyses of official samples of commercial fertilizer and agricultural minerals, and any additional information the secretary deems necessary.
The secretary may take a sample for analysis from any lot of fertilizing material which is in the possession of any producer, manufacturer, importer, agent, dealer, or user. The sample shall be taken pursuant to regulations adopted by the secretary.
The secretary shall establish sampling procedures by regulation.
Upon the analysis of a sample of fertilizing material, the secretary shall issue a report showing the findings and indicating that the product has met the guarantee or was found to be deficient. However, the secretary, in determining whether any product is deficient in guarantee or misrepresented, may establish, by regulation, tolerances that provide allowances for variations that occur in the taking, preparation, and analysis of an official sample.
In any action, civil or criminal, in any court in this state, a laboratory report from the secretary which states the results of any analysis, reported to be made pursuant to this chapter, shall be prima facie evidence of all of the following:
That the sample which is described in the laboratory report was properly analyzed.
That the sample was taken pursuant to this chapter.
That the substances analyzed contained the component parts which are stated in the laboratory report.
That the sample was taken from the lots, parcels, or packages which are described in the laboratory report.
ARTICLE 10. Violations [14649. - 14661.]
It is unlawful for the owner of a plant, crop, or commodity to knowingly treat or apply to that plant, crop, or commodity, or cause that plant, crop, or commodity to be treated or applied, with a fertilizer that was stolen or otherwise acquired by illegal means.
The owner of a crop, who is found by a court to have violated this section, in addition to any other penalties imposed by a court, is subject to a fine of ten thousand dollars ($10,000) plus an amount equal to one-half the value of the crop on which the illegally obtained fertilizer was applied.
For purposes of this section, “one-half the value of the crop” means one-half the market value of the crop that was actually treated with the illegally obtained fertilizer as determined by the actual sale of the crop or, if the crop is not actually sold, as determined by the secretary based on an average of the typical market value for such a crop sold in the normal channels of trade in the year in which the crop was produced and in the preceding two years.
Moneys received as a result of fines and penalties imposed pursuant to this section shall be divided and distributed as follows:
Fifty percent to the county in which the case was brought to court or in which a court-approved settlement of the matter was negotiated.
Twenty-five percent to the office of the county agricultural commissioner.
Twenty-five percent to the department.
Any person who is licensed pursuant to this code and who is found by a court to have knowingly sold, applied, or provided fertilizers that were stolen or otherwise obtained illegally, in addition to any other penalty that may be imposed, shall have his or her license or licenses suspended for a minimum of 18 months.
This section does not apply to a licensee whose employee or agent is found by a court to have knowingly sold, applied, or provided fertilizers that were stolen or otherwise obtained illegally, unless the licensee had actual knowledge of that conduct.
Unless otherwise specified in this chapter, any violation of this chapter, or the regulations adopted pursuant to this chapter, is a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000) for the first violation and not less than one thousand dollars ($1,000) for each subsequent violation.
The secretary may, after hearing, refuse to issue or renew, or may suspend or revoke, a license or registration for any violation of this chapter or any regulation that is adopted pursuant to this chapter.
Upon calling a hearing, the secretary shall hand deliver or mail a notice of the hearing to the licensee or registrant specifying the time and place of the hearing at least 10 days before the hearing. The hearing officer may do any of the following:
Administer oaths and take testimony.
Issue subpoenas requiring the attendance of the licensee, registrant, or witnesses, together with books, records, memorandums, papers, and all other documents that may be pertinent to the case.
Compel from the licensee or registrant and any witness the disclosure of all facts known to them regarding the case. In no instance shall any employee of the Feed, Fertilizer and Livestock Drugs Regulatory Services Branch serve as the hearing officer in any hearing conducted pursuant to this section.
Any person who is denied a license, whose license is not renewed, or whose license is suspended or revoked pursuant to this section may appeal to the secretary.
The department shall levy an administrative penalty against a person who violates this chapter in an amount of not more than five thousand dollars ($5,000) for each violation. The amount of the penalty assessed for each violation shall be based upon the nature of the violation, the seriousness of the effect of the violation upon the effectuation of the purposes and provisions of this chapter, and the impact of the penalty on the violator, including the deterrent effect on future violations.
Upon a finding that the violation is minor or unintentional, in lieu of an administrative penalty, the secretary may issue a notice of warning.
A person against whom an administrative penalty is levied shall be afforded an opportunity for a hearing before the secretary, upon a request made within 30 days after the date of issuance of the notice of penalty. At the hearing, the person shall be given the right to present evidence on his or her own behalf. If a hearing is not requested, the administrative penalty shall constitute a final and nonreviewable order.
If a hearing is held, review of the decision of the secretary may be sought by the person against whom the administrative penalty is levied within 30 days of the date of the final order of the secretary pursuant to Section 1094.5 of the Code of Civil Procedure.
After completion of the hearing procedure pursuant to subdivision (c), the secretary may file a certified copy of the department’s final decision that directs payment of an administrative penalty, and, if applicable, any order denying a petition for a writ of administrative mandamus, with the clerk of the superior court of any county that has jurisdiction over the matter. Judgment shall be entered immediately by the clerk in conformity with the decision or order. Fees shall not be charged by the clerk of the superior court for performance of any official services required in connection with the entry of judgment and the satisfaction of the judgment pursuant to this section.
Notwithstanding any other provision of this chapter, the department shall refuse to issue a license pursuant to Article 4 (commencing with Section 14591), or registration pursuant to Article 5 (commencing with Section 14601), or both a license and registration, to a person if the person has a fine, fee, assessment, or penalty levied by the department for a violation of this chapter that remains unpaid after 30 days of the issuance of a hearing officer’s decision, a superior court judgment pursuant to subdivision (e) of Section 14651.5, a stipulated settlement payment deadline, or any combination thereof, and until that fine, fee, assessment, or penalty is paid in full.
The person may appeal the decision of the department to refuse to issue a license, registration, or both.
The department shall adopt regulations that establish procedures for a written appeals process for a person who wishes to contest the department’s refusal to issue a license or registration, or both, pursuant to subdivision (a). The appeal shall be limited to the issue of whether the person has unpaid fines, fees, assessments, or penalties as described in subdivision (a).
It is unlawful for any person to manufacture or distribute in this state any fertilizing material without complying with this chapter or the regulations adopted pursuant to this chapter.
It is unlawful for any person to adulterate, misbrand, or alter any fertilizing material with the result that the fertilizing material would be inconsistent with the label claims. Any violation of this subdivision is a misdemeanor punishable by a fine as follows:
Not more than five thousand dollars ($5,000) for the first violation that is not a knowing violation.
Not more than fifteen thousand dollars ($15,000) for each subsequent unknowing violation.
Not less than fifteen thousand dollars ($15,000) for each knowing violation.
Any person found in violation of subdivision (b) of this section or subdivision (e) of Section 14682 may also be prohibited by the secretary from obtaining a license to sell organic input materials for three years.
The secretary may seize and hold any lot of fertilizing material which he or she has reasonable cause to believe is in violation of this chapter or the regulations adopted pursuant to this chapter.
If the secretary seizes any lot of fertilizing material, he or she shall immediately issue a hold order to the person that has control of that material. The secretary may affix to that lot or package of the material a warning tag which states that the lot is subject to a hold order.
Any lot of fertilizing material for which a hold order or notice is issued shall be held by the person having control of the material and shall not be distributed or moved except under the specific directions of the secretary, pending final disposition pursuant to this chapter. This does not prevent the person who has control of the material from inspecting any seized material or from taking a reasonable sample for evidence while in the presence of a person designated by the secretary.
The movement, distribution, or sale of all or part of any product by the person having control of the material that has been quarantined by the secretary, unless the movement, distribution, or sale has the prior approval of the secretary, is a violation subject to a civil penalty as specified in Section 14651.5, or a misdemeanor punishable by a fine of not more than five thousand dollars ($5,000). A second or subsequent violation of this subdivision is a misdemeanor punishable by a fine of not less than ten thousand dollars ($10,000).
Upon demand of the person who has control of the seized fertilizing material, and within 10 days of sampling by the secretary, a subsample shall be returned from the state laboratory to the person in control of the fertilizing material.
If the seized and held lot, as determined by the secretary’s analysis, is not in violation of this chapter, the secretary shall immediately release the seized and held lot and remove the hold order.
If the seized and held lot is found to be in violation of this chapter, the secretary shall take either of the following actions:
Continue to hold the lot until such time as the requirements of this chapter have been complied with, at which time the lot shall be released.
Issue orders for the disposal of the lot in a manner specified by the secretary.
The person who has control of a seized or held lot that is found to be in violation of this chapter may appeal the result of the analysis to the secretary, in writing, within 15 days of receiving the notice of violation. Upon receipt of that appeal, the secretary shall take a further sample of the lot in question for analysis. The cost of sampling and analysis shall be at the expense of the person who requests the further sample. The findings of the analysis on appeal shall be conclusive.
The authority for the issuance of citations is limited to the violations of Sections 14591, 14601, 14631, 14651, and 14655. The secretary shall adopt procedures for the issuance of citations and penalties, upon the recommendation of the board. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to the procedures adopted by the secretary pursuant to this section.
The department shall be entitled to receive reimbursement from any person who is found in violation of this chapter for any reasonable attorney’s fees and other related costs, including, but not limited to, investigative costs, involved in enforcement of this chapter.
The department shall use all funds received pursuant to this chapter for the purposes of this chapter.
ARTICLE 11. Procedure for Prosecution [14671. - 14672.]
In addition to the remedies provided in this chapter, the department may bring an action in superior court and the court may grant a temporary or permanent injunction restraining any person from violating this chapter or the regulations adopted pursuant to this chapter. Any proceeding under this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. The department shall not, however, be required to allege facts necessary to show or tending to show irreparable damage or loss. The court may require any acts or course of conduct necessary to effectuate the purposes of this chapter.
Nothing in this chapter requires the secretary to report for prosecution or to institute injunctive proceedings for any minor violation of this chapter whenever the secretary believes that the public interest would be adequately served by a suitable written notice of warning and compliance with the notice.
ARTICLE 12. Misbranding and Adulteration [14681. - 14682.]
No person shall distribute misbranded fertilizing materials. A fertilizing material shall be deemed to be misbranded under any of the following conditions:
If its labeling is false or misleading in any particular way.
If it is distributed under the name of another fertilizing material, as determined by the department.
If it is not labeled as required by regulations adopted pursuant to this chapter.
If it purports to be, or is represented as, a fertilizing material, or is represented as containing a primary or secondary plant nutrient or micronutrients, or both, unless the plant nutrients conform to the definition of identity, if any, prescribed by regulation. In adopting these regulations, due regard shall be given to commonly accepted definitions and official fertilizer terms such as those prescribed by the Association of American Plant Food Control Officials.
No person shall distribute an adulterated fertilizing material. A fertilizing material shall be deemed to be adulterated under any of the following conditions:
If it contains any deleterious or harmful ingredient in sufficient amounts to render it injurious to beneficial plant life when applied in accordance with directions for use on the label, or if adequate warning statements or directions for use that may be necessary to protect plant life are not indicated on the label.
If its composition falls below or differs from that which it is purported to possess by its labeling.
If it contains unwanted crop seed or weed seed.
If it is a threat to public safety.
If an organic input material contains ingredients that, in type or amount, do not comply with the requirements of the National Organic Program standards, as specified in Part 205 (commencing with Section 205.1) of Subchapter M of Chapter I of Subtitle B of Title 7 of the Code of Federal Regulations.
CHAPTER 6. Commercial Feed [14901. - 15103.]
ARTICLE 1. General Provisions [14901. - 14904.]
The Legislature hereby finds and declares that it is the intent of this chapter to do all of the following:
Enable the feed and feeding industry, with the aid of the state, to ensure in every way possible a clean and wholesome supply of meat, milk, and eggs for the benefit of the consumer.
Provide assurance to the consumer-buyer of commercial feed that the product he or she purchases is properly identified and of the quality and quantity represented by the manufacturer of the commercial feed.
Provide funds for the administration and enforcement of this chapter by an inspection tonnage tax on commercial feed to be paid by any person that distributes commercial feed to a consumer-buyer in this state.
Enable the commercial feed industry, pursuant to regulations or procedures adopted or established by the director, to implement and maintain an efficient program of inspection and analysis of commercial feed.
Except as otherwise provided in Sections 14978 and 14979, the director shall enforce this chapter and adopt and enforce those regulations relating to the manufacture and distribution of, and to the manner of making inspection tonnage tax payments upon, commercial feed as the director determines is necessary to carry out this chapter.
Notwithstanding any other law, any commercial feed, feed additive, or drug approved by the United States Food and Drug Administration that is fed to livestock shall be under the oversight of the department as the primary state regulatory agency, including, but not limited to, products that make environmental and health claims.
Nothing in this section shall be construed to limit the authority of the State Air Resources Board under Section 39730.7 of the Health and Safety Code.
Notwithstanding any other law, the department shall continue to be the primary regulatory agency over medicated feed, responsible for regulating medicated feed quality assurance and medicated feed safety, and enforcing any handling and inspecting requirements imposed on medicated feed suppliers. The department shall also have primary responsibility over medicated feed ingredients and the sale of medicated feed that is subject to veterinarian oversight.
The secretary shall establish, by regulation, good manufacturing practices, hazard analysis, and preventive control measures as the secretary determines are reasonably necessary to carry out the purposes of this chapter. The good manufacturing practices, hazard analysis, and preventive control measures, including verification and validation activities for all commercial feed and additives, including medicated feed premixes and medicated feeds, shall be based upon federal food and drug laws and regulations, unless the secretary determines that the federal laws and regulations are not appropriate to the conditions that exist in this state. The regulations adopted pursuant to this section shall ensure that drug usage under this chapter shall not conflict with the provisions of Chapter 4 (commencing with Section 14200).
The director shall adopt and enforce regulations for the manufacture, distribution, and labeling of feed used in connection with the production of food sold as organic pursuant to Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code which shall be consistent with the requirements of that article.
ARTICLE 2. Definitions [14921. - 14939.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Animal” means any animal, including birds, except a human being.
“Board” means the Feed Inspection Advisory Board.
“Commercial feed” includes all materials which are intended for use as feed or for mixing in feed except preparations which are manufactured and distributed for feeding to domestic pets, such as dogs, cats, and birds.
“Consumer-buyer” means any person not licensed under this chapter who purchases commerical feed from a manufacturer or distributor of such feed for use in feeding animals.
“Distribute” means to offer for sale, sell, exchange or barter.
“Drug” means any substance which is intended, or represented, for use in the diagnosis, cure, mitigation, treatment, or prevention of any disease in any animal, and any other substance, except feed, which is intended to affect the structure or any function of the body of any animal.
“Feed ingredient” means each of the constituent substances making up a formula feed.
“Formula feed” means two or more feed ingredients, proportioned, mixed, and processed according to specifications.
“Label” means a display of written, printed, or graphic matter upon, or affixed to, the container in which a commerical feed is distributed, or on the invoice or delivery slip which accompanies a commercial feed.
“Licensee” means a person that has obtained a license pursuant to the provisions of this chapter.
“Manufacture” means to grind, mix, or further process a commerical feed.
“Medicated feeds” means commerical feeds that contain drugs.
“Medicated feed premixes” means a concentrated combination of one or more substances, at least one of which is a drug, which must be diluted through manufacturing into a medicated feed.
“Percent or percentages” means percentages by weight.
“Person” means any individual, corporation, partnership, limited liability company, trust, association, cooperative association, or any other business unit or organization.
“Special mix” means any commercial feed which is manufactured, processed, or mixed pursuant to specifications which are agreed upon by the purchaser and the manufacturer.
“Ton” means a net weight of 2,000 pounds avoirdupois.
ARTICLE 3. Funds [14961. - 14963.]
All of the money which is received by the director pursuant to this chapter shall be deposited in the Department of Food and Agriculture Fund and shall be expended solely for the administration and enforcement of this chapter, including reimbursement of the board or other entity for all of the expenses necessary to carry out the purposes of this chapter.
The director shall prepare an annual statement of the operating expenditures and income related to this chapter which shall be presented to the board for review as soon as possible following the termination of the fiscal year. A copy of this statement will be made available to any interested person upon request.
If this chapter is repealed, any funds received by the director pursuant to this chapter remaining after all expenses are paid, shall be rebated by the director in a manner prescribed by the board proportionately to the amount paid by those persons that made such payments.
ARTICLE 4. Feed Inspection Advisory Board [14971. - 14979.]
There is in state government a Feed Inspection Advisory Board consisting of eight persons appointed by the director, who are licensed under this chapter, and who are subject to payment of the inspection tonnage tax in accordance with this chapter. The director may appoint one additional member to the board who shall be a public member. The members of the board shall receive no salary, but are entitled to payment of necessary traveling expenses in accordance with Department of Human Resources rules. These expenses shall be paid out of appropriations made to the department.
Upon the director’s request, the board shall submit to the director the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, or processor nor financially interested in any producer, shipper, or processor, for appointment by the director as a public member of the board. The director may appoint one of the nominees as the public member on the board. If all nominees are unsatisfactory to the director, the board shall continue to submit lists of nominees until the director has made a selection. Any vacancy in the office of the public member of the board shall be filled by appointment by the director from the nominee or nominees similarly qualified submitted by the board. The public member of the board shall represent the interests of the general public in all matters coming before the board and shall have the same voting and other rights and immunities as other members of the board.
It is hereby declared, as a matter of legislative determination, that persons appointed to the Feed Inspection Advisory Board pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such board, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The term of office of the members of the board is three years. When the board is first appointed, two members shall be appointed for three years, two members for two years, and one member of one year. Thereafter appointment shall be for full three-year terms. Vacancies shall be filled for an unexpired term.
Except as otherwise provided in Sections 14978 and 14979, the board shall be advisory to the director and may make recommendations on all matters pertaining to this chapter, including, but not limited to, the inspection and enforcement program, annual budget, necessary fees to provide adequate inspection services, and regulations required to accomplish the purposes of this chapter.
The board shall elect a chairman, and from time to time such other officers as it may deem advisable.
The board shall meet at the call of its chairman or the director or at the request of any three members of the board. The board shall meet at least once a year.
In order to avoid administrative charges which may adversely impact persons subject to this chapter, and to provide for more efficient implementation of this chapter, the board may, on or before January 15 of any year, establish or designate one or more entities to administer all or any part of this chapter for the fiscal year beginning July 1 of the same year through June 30 of the following year, in accordance with the regulations and procedures adopted or established by the director pursuant to Section 14979.
Notwithstanding subdivision (a), the director shall be responsible for the enforcement of this chapter and for the establishment of enforcement procedures.
The entity or entities that may be established or designated by the board pursuant to Section 14978 includes, but shall not be limited to, the following:
The committee established pursuant to Section 14978.2.
Agricultural councils, commissions, and any entity established in accordance with a marketing order.
Federal, state, or county agencies.
The University of California and cooperative extension service.
Agricultural associations and cooperatives.
State accredited or certified chemistry laboratories.
However, the board may not designate any entity that is a trade association whose membership is composed primarily of persons licensed under this chapter or that represents persons regulated by this chapter.
The board may establish the Commercial Feed Inspection Committee as an entity to administer this chapter. The committee shall consist of eight persons appointed by the board who shall be licensed under this chapter. The committee may, with the concurrence of the director, appoint one additional member to the committee, who shall be a public member. The public member shall be a citizen and resident of California who is not subject to the licensing requirements of this chapter, and who has no financial interest in any person licensed under this chapter.
Each member shall have an alternate member appointed in the same manner as the member, who shall serve in the absence of the member for whom they are designated as alternate and who shall have all the duties and exercise the full rights and privileges of members.
The committee may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the committee.
The members and alternate members, when acting as members, shall serve without compensation but shall be reimbursed for expenses necessarily incurred by them in the performance of their duties in accordance with the rules of the Department of General Services.
A quorum of the committee shall be five members. A vote of the majority of the members present at a meeting at which there is a quorum shall constitute the act of the committee.
No member or alternate member, or any employee or agent thereof, shall be personally liable for the actions of the committee or responsible individually in any way for errors in judgment, mistakes, or other acts, either by commission or omission, except for his or her own individual acts of dishonesty or crime.
Any entity established or designated pursuant to Section 14978 shall do all of the following:
Administer this chapter or any part thereof, and to do and perform all acts and exercise all powers deemed reasonably necessary.
Keep accurate books and records of its activities, which shall be subject to annual audit by an auditing firm approved by the director. The audit shall be made a part of an annual report to all persons licensed under this chapter. The books and records shall be available for audit during regular business hours upon request of the director.
Establish an annual budget, including, but not limited to, the allocation of funds required for inspection services necessary for the administration of this chapter.
Make recommendations to the director concerning all of the following:
Adoption, modification, and repeal of regulations and procedures.
Procedures for employment, training, supervision, and compensation of inspectors and other personnel.
Rate and collection of inspection tonnage tax and the collection of license fees and penalties related thereto.
Acquisition and use of equipment.
Posting and noticing changes in bylaws, general procedures, or orders.
The director may require any entity or entities established or designated pursuant to Section 14978 to correct or cease any activity or function that is determined by the director not to be in the public interest, or that is in violation of this chapter, and shall notify the entity in writing of these specific acts.
Persons subject to this chapter shall not have access to any information in the possession of any entity or entities established or designated pursuant to Section 14978 that would disclose proprietary information regarding any other person subject to this chapter, including feed test results, individual tonnage tax payment, and feed formula information.
Any person licensed under this chapter may petition the director, in accordance with regulations adopted by the director, to review any action, order, or decision of the entity or entities established or designated pursuant to Section 14978.
The director shall adopt regulations to be used by the entity or entities established or designated by the board pursuant to Section 14978 to administer this chapter. The regulations shall include, but not be limited to, contracts for analytical services with commercial laboratories and for any additional services.
The director shall establish procedures to be used by the entity or entities established or designated by the board pursuant to Section 14978 to administer this chapter. The procedures shall include, but not be limited to, all of the following:
Employment, training, supervision, and compensation of inspectors and other personnel.
Allocation of funds and use of existing equipment and acquisition of equipment.
Collection of inspection tonnage tax, license fees and penalties related thereto.
This section is not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
In adopting regulations and procedures, the director shall accept the recommendations of the entity or entities established or designated pursuant to Section 14978 if he or she finds them to be practicable and in the interest of the commercial feed industry and the public. Within 30 days of the date the director receives a recommendation from any such entity, the director shall provide the entity with notice of the acceptance of the recommendations or with a written statement of reasons if he or she does not accept the recommendation.
ARTICLE 5. Labels [14991. - 14996.]
Except as otherwise provided in this chapter or by regulations of the secretary that declare that the statement required pursuant to this article is not applicable to certain products to carry out this chapter, every lot, parcel, or package of commercial feed distributed within this state shall have affixed to it, or be accompanied by, a label.
The sale or distribution of any lot, parcel, or package of commercial feed without a label, as specified in this chapter, is a violation of this chapter.
The label shall contain a legible and plainly printed statement which certifies all of the following:
The net weight or volume of the contents of the lot or parcel unless accompanied by a certified certificate of weights and measures.
The product name, brand name, or trademark.
The name and principal address of the manufacturer or person that is responsible for placing the commodity on the market.
The guaranteed analysis stated in terms as the director specifies by regulation.
The recognized official name, as specified by the director, of each ingredient. The director may by regulation permit the use of a collective term for a group of ingredients which performs a similar function. The director may exempt a commercial feed, or any combination of commercial feeds from labeling requirements if he or she finds the listing is not necessary to comply with the intent of this chapter.
Adequate directions, warnings and caution statements that may be necessary for the safe use of any feed.
Any person that manufactures, processes, or mixes any special mix for another person, shall label it in accordance with regulations as specified by the director.
A special mix shall not be resold unless relabeled.
If a manufacturer or processor of any commercial feed makes a claim or guarantee relative to the content of the commerical feed on, or with, the package which contains it, and the claim or guarantee is in addition to those required by law, he is responsible for maintaining the claim or guarantee, and may be required to submit to the director information and records pertinent to the claim or guarantee.
Commercial feed manufactured or distributed for feeding to animals on a contract or partnership basis is exempt from the labeling provisions of this chapter if the feeding location is of the same ownership as the feed manufacturing facility. The label information shall be provided by the manufacturer if the information is requested by a party to the contract or partnership or if the commercial feed contains a drug.
ARTICLE 6. Standards and Tolerances [15011. - 15011.]
The director shall fix the standards for commercial feed ingredients, including drugs, tolerances for agricultural chemicals, and any additives used in the manufacture of the feed, so as to insure the safety of animals and the products of animals which are used for human consumption. The director shall enforce all medicated feed withdrawal periods as set by regulation.
ARTICLE 7. Inspection and Analysis [15021. - 15021.]
The director, his agents, and his inspectors shall have free access at reasonable times to all premises or conveyances which are used in the manufacture, transportation, importation, distribution, storage, or feeding of any commercial feed. They shall have access to any lot or package which contains or is supposed to contain, any commercial feed, and take samples and analyze them.
ARTICLE 8. Mislabeling [15031. - 15031.]
A commercial feed is mislabeled in each of the following cases:
Its labeling is false or misleading in any particular.
It is not labeled as required by this chapter.
Any word, statement, or other information required pursuant to this chapter to appear on the label is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices in the labeling and in such terms as to render it likely to be read and understood under customary conditions of purchase and use.
ARTICLE 9. Adulteration [15041. - 15042.]
A commercial feed is adulterated in the following cases:
It bears or contains any poisonous, deleterious, or nonnutritive substance in amounts which are specified as being unsafe by the director by regulations.
If any valuable constituent has been in whole or in part omitted or abstracted therefrom or any less valuable substance substituted therefor.
Its composition differs from, or quality falls below, that which it is purported or is represented to possess by its labeling.
It contains a drug or drugs or other additive and the methods used in or the facilities or controls used for its manufacture, processing, or packaging do not conform to current good manufacturing practice regulations adopted by the director to assure that the drug or drugs or other additive meets the requirement of this chapter as to safety and has the identity and strength and meets the quality and purity characteristics which it purports or is represented to possess.
The sale or distribution of any lot, parcel, or package of commercial feed deemed by the secretary to bear or contain a poisonous, deleterious, or nonnutritive substance in amounts that are specified as being unsafe by the secretary by regulation is a violation of this chapter.
ARTICLE 10. Licenses [15051. - 15056.]
Each person shall obtain a license from the secretary for each location where commercial feed is manufactured, distributed, sold, or stored for later sale. Persons who do not have a permanent place of business, but who otherwise manufacture, sell, or store feed shall also obtain a license from the secretary.
This section also shall apply to a person whenever the person’s name and address appears on the label of commercial feed as guarantor.
The following persons are exempt from this section:
A person that makes only retail sales of commercial feed which bear the tag or other approved indication that the commercial feed is from a licensed manufacturer or guarantor who has assumed full tax responsibility for the tonnage tax due under this chapter.
A person who manufactures commercial feed exclusively for feeding to his or her own animals.
Each application for a license shall be accompanied by an annual fee specified by the department for each location. The minimum license fee shall be one hundred dollars ($100) for each location and the maximum license fee for each location shall not exceed six hundred dollars ($600) for each location with the specific fee to be set by the secretary upon recommendation of the board. Those licensees with feed licenses on the effective date of the bill who have previously paid their license fees for the then current fiscal year shall not be subject to any new fees until their licenses are renewed. Beginning January 1, 2031, the license fee shall be one hundred dollars ($100) for each location. Those licensees with feed licenses on that date who have previously paid their license fees for the then current fiscal year shall not be subject to any new license fees until their licenses are renewed.
Revenues generated from license fees shall be used to replenish feed inspection program reserves to a minimum of 25 percent of program expenditures, after which point some of the revenues from these fees shall be used to reduce feed tonnage taxes provided for in this chapter upon recommendation of the board.
All licenses shall be renewed on July 1 of each year and shall be valid until June 30 of the next year. Each application for renewal shall be accompanied by a fee in an amount specified by the department, pursuant to Section 15053, for each location operated.
If a license is not renewed within one calendar month following its expiration, a penalty of one hundred dollars ($100) shall be added to the fee.
The penalty for the manufacture or distribution of a commercial feed without a valid license as specified in Section 15051 is a violation of this chapter.
ARTICLE 11. Inspection Tonnage Tax [15061. - 15062.]
An inspection tonnage tax at the maximum rate of twenty-five cents ($0.25) per ton of commercial feed sold, except whole grains, and whole hays when unmixed, shall be paid to the secretary by any person who distributes commercial feed to a consumer-buyer in this state. The distributor shall also pay an inspection tonnage tax for purchased commercial feed fed to the distributor’s own animals.
The secretary may, based on a finding and recommendation of the board, determine the specific rate necessary to provide the revenue needed to carry out this chapter. The secretary and the board shall not exceed the maximum tonnage rate established by this section. The setting of the tonnage tax rate shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
The secretary may, based on a finding and recommendation of the board, designate 15 percent of the tonnage taxes collected pursuant to Section 15061, or two hundred thousand dollars ($200,000), whichever amount is greater, to provide funding for research and education regarding the safe manufacture, distribution, and use of commercial feed. These funds may only be spent on activities approved by the board, with approval being made before any expenditure.
This section shall remain in effect only until January 1, 2031, and as of that date is repealed.
Every person subject to payment of the inspection tonnage tax shall make reports and payments in the manner prescribed by the director by regulation.
If payment is delinquent, a penalty of 15 percent of the amount past due shall be charged. For payments more than 12 months delinquent, an additional penalty of 1 percent per month of the amount past due shall be charged. The secretary shall set a penalty fee, as necessary to cover administrative costs, for any delinquency in making a report.
ARTICLE 12. Violations [15071. - 15082.]
The secretary may, after a hearing, refuse to issue or renew, or may suspend or revoke, a license for any violation of this chapter or any regulation that is adopted pursuant to this chapter.
A person against whom a licensing action is initiated may appeal to the secretary by requesting a hearing. If a hearing is not requested, the licensing action shall constitute a final and nonreviewable order.
The department shall levy an administrative penalty against a person who violates this chapter or the regulations adopted pursuant to this chapter in an amount of not more than five thousand dollars ($5,000) for the first violation and not less than five thousand dollars ($5,000) for each subsequent violation. The department may consider the severity, intent, and repeat nature of violations in issuing penalties. The department shall base the amount of the penalty assessed for each violation upon the nature of the violation, the seriousness of the effect of the violation upon the effectuation of the purposes and provisions of this chapter, and the impact of the penalty on the violator, including the deterrent effect on future violations.
The secretary may issue a notice of warning, in lieu of an administrative penalty, upon a finding that the violation is minor or unintentional.
A person against whom an administrative penalty is levied shall be afforded an opportunity for a hearing before the secretary, upon a request made within 30 days after the date of issuance of the notice of penalty. At the hearing, the person shall be given the right to present evidence on the person’s own behalf. If a hearing is not requested, the administrative penalty shall constitute a final and nonreviewable order.
If a hearing is held, review of the decision of the secretary may be sought by the person against whom the administrative penalty is levied within 30 days of the date of the final order of the secretary pursuant to Section 1094.5 of the Code of Civil Procedure.
After completion of the hearing procedure pursuant to subdivision (c), the secretary may file a certified copy of the department’s final decision that directs payment of an administrative penalty, and if applicable, any order denying a petition for a writ of administrative mandamus, with the clerk of the superior court of any county that has jurisdiction over the matter. Judgment shall be entered immediately by the clerk in conformity with the decision or order. Pursuant to Section 6103 of the Government Code, the clerk of the superior court shall not charge a fee for the performance of any official service required in connection with the entry of judgment pursuant to this section.
Any funds recovered by the secretary pursuant to this section shall be deposited in a special account in the Department of Food and Agriculture Fund, and, notwithstanding Section 13340 of the Government Code, are continuously appropriated to the department to cover costs related to the enforcement of this chapter.
The department shall be entitled to receive reimbursement from any person who is found in violation of this chapter for any reasonable attorney’s fees and other related costs, including, but not limited to, investigative costs, involved in enforcement of this chapter.
The department shall use all funds received pursuant to this chapter for the purposes of this chapter.
The procedures for the issuance of citations and penalties shall be prescribed in a citations policy adopted by the secretary, notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, upon the recommendation of the board.
In lieu of any other penalty provided by this chapter, the secretary may initiate a proceeding for the issuance of a civil penalty.
It is unlawful for any person to manufacture or distribute in this state any commercial feed without complying with the provisions of this chapter and the regulations which are adopted pursuant to it.
It is unlawful for any person to use any commercial feed containing drugs or food additives except in compliance with all directions for use stated on any tag or label affixed to or accompanying the commercial feed.
The director may seize and hold any lot of commercial feed which he has reasonable cause to believe is in violation of the provisions of this chapter or the regulations adopted pursuant to it.
If the director seizes any lot of commercial feed, he shall immediately issue to the person that has control of such feed a hold order or notice. He may affix to the lot or package of such feed a warning tag which states that the lot is so held.
Any lot of commercial feed for which a hold order or notice is issued shall be held by the person having control of the feed and shall not be disturbed or moved except under the specific directions of the secretary pending final disposition pursuant to this chapter. This restriction does not prevent the person having control of the feed from inspecting any feed so seized, nor from taking therefrom, in the presence of a person designated by the secretary, a reasonable sample for evidence.
The movement, distribution, or sale of all or part of any lot, parcel, or package of commercial feed that has been quarantined by the secretary, unless the movement has the prior approval of the secretary, is a violation of this chapter.
Any lot of commercial feed which is seized and held pursuant to this chapter, unless previously analyzed by the director, shall be sampled and promptly analyzed within a reasonable period of time, as set by the director by regulation, after the seizure for the purpose of determining if such commercial feed is, in fact, in violation of the provisions of this chapter or the regulations adopted pursuant to it. The person having control of the feed shall be immediately notified by the director as to whether or not the sample was found to be in violation. If the results of analysis are not made known to the person having control of the feed within the period of time specified by the director by regulation, the lot of commercial feed being held shall be immediately released and the hold order or tag removed.
Upon demand of the person having control of the seized feed and within 10 days of sampling by the director, a subsample shall be returned from the state laboratory to the person in control of the feed.
If the seized and held lot, as determined by the director’s analysis, is not in violation, the director shall immediately release the seized and held lot and remove the hold order or tag.
If the seized and held lot is found to be in violation, the director shall either:
Continue to hold the lot until such time as the requirements of this chapter have been complied with, at which time the lot shall be released.
Issue orders for the disposal of the lot in a manner specified by the director.
The manufacturer or guarantor of a seized or held lot found to be in violation may appeal the result of analysis to the secretary in writing within 10 days of receiving the notice of violation. Upon receipt of the appeal, the secretary shall perform an additional analysis of the official sample representing the lot in question. The cost of analysis shall be at the expense of the person that requests the appeal. The findings from the appeal analysis are final.
It is unlawful for any person to manufacture or distribute in this state any commercial feed without complying with this chapter or any regulations adopted pursuant to this chapter.
It is unlawful for any person to adulterate, misbrand, or alter any commercial feed with the result that the feed would be inconsistent with the label claims.
The secretary may prohibit any person found in violation of subdivision (b) or Section 15076 from obtaining a license to sell feed for three years.
ARTICLE 13. Procedure for Prosecution [15091. - 15092.]
In addition to the remedies provided in this chapter, the department may bring an action in superior court and the court may grant a temporary or permanent injunction restraining any person from violating this chapter or the regulations adopted pursuant to this chapter. Any proceeding under the provisions of this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. The department shall not, however, be required to allege facts necessary to show irreparable damage or loss. The court may require such acts or course of conduct as necessary to effectuate the purpose of this chapter.
Nothing in this chapter requires the secretary to report for prosecution or to institute injunction proceedings for any minor violation of this chapter whenever the public interest would be adequately served by a suitable written notice of warning, and compliance with the notice.
ARTICLE 14. Complaints [15101. - 15103.]
For purposes of this chapter, any person may file a complaint with the branch regarding the safety of whole hays if he or she submits a written complaint and pays a filing fee of two hundred fifty dollars ($250). The filing fee, which shall be used for purposes of investigating complaints filed pursuant to this article, shall be deposited in the Department of Food and Agriculture Fund to the account of the Commercial Feed Inspection Program.
Upon the filing of a complaint pursuant to Section 15101, the secretary shall conduct an investigation with regard to the safety of whole hays.
Absent the filing of a complaint pursuant to Section 15101, the secretary may conduct an investigation with regard to the safety of whole hays if he or she determines that an investigation is necessary in order to protect animal health or the health of the public.
If the secretary determines that the complaint is valid and the hay is unsafe, the secretary may require the seller of the hay to reimburse the filing fee to the person filing the complaint.
The secretary also may collect from any seller of hay the costs incurred by the secretary, not to exceed two thousand five hundred dollars ($2,500), in conducting any investigation regarding the safety of whole hay sold by that seller if the hay is ultimately deemed to be unsafe.
CHAPTER 7. Structural Pest Control [15201. - 15206.6.]
The Legislature hereby finds and declares that it is the joint responsibility of the Department of Food and Agriculture, the commissioner of each county under the direction and supervision of the director, and the Structural Pest Control Board to regulate the activities of structural pest control licensees. The Structural Pest Control Board has responsibility for licensing persons and companies engaged in structural pest control work. The department has primary responsibility for enforcing pesticide laws and regulations.
In addition to the enforcement authority granted to the director and commissioners by this code, a commissioner, when acting pursuant to Section 8616.4 of the Business and Professions Code, may suspend the right of a structural pest control licensee to make pesticide applications in the county for up to three working days or levy a fine upon a licensee or unlicensed individual acting as a licensee as specified in Section 8617 of the Business and Professions Code. Appeals from these actions shall be to the Disciplinary Review Committee according to the procedures provided in Section 8662 of the Business and Professions Code.
The director may adopt regulations to carry out the provisions of this chapter. The director shall consult with the Structural Pest Control Board when developing regulations that pertain to the use of pesticides by structural pest control licensees.
Each licensed Branch 2 and Branch 3 structural pest control operator qualifying manager, as defined in Section 8506.2 of the Business and Professions Code, and Structural Pest Control Board registered company, as defined in Section 8506.1 of the Business and Professions Code, shall register with the commissioner prior to operating a structural pest control business in the county. The registration shall cover a calendar year. A fee may also be required at the time of registration. The fee shall be set by the county board of supervisors, except that in no case shall the fee exceed the actual cost of processing the registration or ten dollars ($10), whichever is less. Payment of the fee shall be due by the date designated by the commissioner.
Each registration shall be in a form prescribed by the director after consulting with the Structural Pest Control Board and commissioners and shall include the structural pest control licensee’s name and address, including all satellite locations conducting business in the county, telephone numbers, responsible persons, and the type of pest control to be conducted.
If ordered by the commissioner, other structural pest control licensees shall appear in person at the office of the commissioner to complete registration.
The commissioner may levy a civil penalty against any person who violates the provisions of this section in accordance with the procedures provided in Section 12999.5.
It is unlawful for any licensed Branch 1 Structural Pest Controller licensee, including structural pest control operators, field representatives, applicators, and Structural Pest Control Board (SPCB) registered companies, as defined in Section 8506.1 of the Business and Professions Code, to conduct fumigations in any county unless that person or company has also registered for the current calendar year with the commissioner in that county. The registration fee for the SPCB registered company including structural pest control operators and field representatives and applicators shall be set by the county Board of Supervisors, but shall not exceed the cost of processing the registration or twenty-five dollars ($25), whichever is less. Payment of the fee shall be due at registration or on a date set by the commissioner. Structural pest control operators and field representatives may be added during the year, but the fee shall not exceed the actual cost of processing the registration or ten dollars ($10), whichever is less.
Each registration shall be in the form prescribed by the director after consulting with the SPCB and the commissioners and shall include the name and address of the SPCB registered company or structural pest control operator and all satellite offices conducting business in the county, the name of the qualifying manager or the structural pest control operator and his or her license number, and a business telephone number. The registration form for field representatives and applicators shall include their name, license number, business address, and telephone number, and may be included with the business registration.
Each licensed structural pest controller, including structural pest control operators, field representatives, applicators, or an SPCB registered company, that intends to conduct fumigation operations is required to appear in person at the office of the commissioner to complete the registration required by Section 15204.
Each SPCB registered company or structural pest control operator that intends to conduct fumigation operations shall notify the agricultural commissioner at least 24 hours prior to commencing fumigation, or as approved on a case-by-case basis by the commissioner. This notice shall include all of the following:
Name and address of the registered company or structural pest control operator.
Address of the area or areas to be fumigated.
The pesticide to be applied.
The date of the intended application.
The commissioner may levy a civil penalty against any person who violates the provisions of this section in accordance with the procedures provided in Section 12999.5.
A commissioner may require full payment of any delinquent fees due to the county pursuant to Section 8698.1 of the Business and Professions Code as a condition of registering a structural pest control licensee to operate a structural pest control business in that county pursuant to Sections 15204 and 15204.5.
Each registered structural pest control company shall make all existing records pertaining to pesticide and device use available to the director, the Structural Pest Control Board, or commissioner upon demand at the headquarters of the business during normal business hours. A registered structural pest control company or licensee may not prohibit onsite inspection for compliance with the Business and Professions Code and this division regarding pesticides and structural pest control devices and regulations adopted pursuant thereto. Except as provided in Section 8505.5 of the Business and Professions Code, nothing in this section shall be construed as requiring a registered structural pest control company or licensee to provide advance notice of the date, time, location of the application, type of device or pesticide application, or any other related information unless the information is contained in existing records available to the registered company or licensee, in which case the director, the Structural Pest Control Board, or commissioner may require that this information be produced at the company’s place of business.
Information and documents gathered by the director, the Structural Pest Control Board, or the commissioner pursuant to this section that are protected from disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall remain confidential while in the director’s, the board’s, or the commissioner’s possession.
“Device,” for purposes of this section, means any method, instrument, or contrivance intended to be used to prevent, eliminate, destroy, repel, attract, or mitigate any wood destroying pest, but does not include firearms, pesticides as defined in Section 12753, or equipment used for the application of pesticides when sold separately from a pesticide.
“Wood destroying pest,” for purposes of this section, includes, but is not limited to, insects such as wood borers and termites. “Wood destroying pest” does not include wood-decaying fungi, general household pests such as cockroaches, or vertebrate pests such as rats and mice.
If the director receives a notice pursuant to Section 8616.6 of the Business and Professions Code, he or she shall investigate the actions which caused the filing of the notice and take appropriate action as authorized in this code.
Regulations adopted pursuant to Section 11503 are not applicable to this chapter.
The director and the Structural Pest Control Board shall jointly develop and concur in the list of the types of violations that the commissioners shall refer to the board for disciplinary action.
CHAPTER 7.5. Structural Pest Control Devices [15300. - 15340.]
ARTICLE 1. Definitions [15300. - 15300.]
For the purposes of this chapter, the following definitions apply:
“Structural pest control device” or “device” means any method, instrument, or contrivance intended to be used to prevent, eliminate, destroy, repel, attract, or mitigate any wood destroying pest, but does not include firearms, pesticides as defined in Section 12753, or equipment used for the application of pesticides when sold separately from a pesticide.
“Wood destroying pest” includes, but is not limited to, insects such as wood borers and termites. “Wood destroying pest” does not include wood-decaying fungi, general household pests such as cockroaches, or vertebrate pests such as rats and mice.
ARTICLE 2. General Provisions [15301. - 15303.]
On and after July 1, 2001, it is unlawful for any person directly, or through another, to manufacture for sale, advertise, deliver or otherwise provide, offer for sale or lease, sell, lease, possess, or use any device in this state that is not registered pursuant to this chapter, or for which the registration has been suspended or canceled, except as provided in subdivision (b), any other provision of this chapter, regulations adopted by the director, or a notice or order of suspension or cancellation of a device.
For devices in use in California prior to January 1, 2001, the director may grant reasonable extensions of time for the submission or review, or both the submission and review, of data in support of an application for registration. Before the director may grant an extension of time, the applicant shall have made a good faith effort to comply with the requirements of this chapter and shall demonstrate to the satisfaction of the director that circumstances beyond the applicant’s control were the primary cause of the delay.
This section does not apply to any device manufactured solely for export outside this state and which is so exported.
The director shall regulate structural pest control devices.
The director may adopt, amend, repeal, and enforce regulations relating to the regulation of devices and the administration of this chapter. When adopting regulations pursuant to this chapter, the director shall consider the safe use of devices and safe working conditions for persons handling, storing, or using devices or working in and about device treated areas.
ARTICLE 3. Device Registration [15305. - 15320.]
The director shall endeavor to prevent and eliminate from use in this state any device that meets any of the following criteria:
The device endangers human health or safety, property, or the environment.
The device is not beneficial or efficacious for the purposes for which it is manufactured for sale, advertised, delivered or otherwise provided, offered for sale or lease, sold, leased, possessed, or used.
Is misrepresented.
The director may establish specific criteria to evaluate a device. The director may establish performance standards and tests of structural pest control devices, which are to be conducted by the applicant for registration, registrant, or parties interested in the registration of the device.
Before a device is registered, the director shall conduct, or cause to be conducted, a thorough and timely evaluation of the device. The director may impose reporting requirements and restrictions upon the use of a device, including, but not limited to, limitations on area and manner of application. The director may reevaluate any registered device.
The director shall not determine a device to be beneficial or efficacious if any of the following exists:
The ability of the device to control pests falls below the standard or quality that the device is represented to have, or the device is of little or no value for the purpose for which it is intended.
Any component or subsystem that is necessary to the effectiveness of the device has been wholly or partially omitted in its manufacture, or other materials have been substituted for that component or subsystem.
Every manufacturer of, importer of, vender of, or dealer in, any device, except a dealer or agent that sells a registered device, shall obtain a certificate of device registration from the director before the device is manufactured for sale, advertised, delivered or otherwise provided, offered for sale or lease, sold, leased, possessed, or used, in this state, unless the device is used under a valid device research permit pursuant to Section 15314.
Each applicant for registration of a device, at a minimum, shall submit all of the following:
A completed application form prescribed by the director.
Proposed labeling for the device.
Valid data supporting each claim on the proposed label and supporting the safety of the device for each proposed labeled use.
A nonrefundable application fee in the amount of two hundred dollars ($200). The application fees shall be deposited in the Department of Pesticide Regulation Fund and shall be available, upon appropriation, for use by the department in administering this division.
Any other information required by regulation of the director.
Within a timely manner after receipt of the information and fee specified in Section 15308, the director shall do one or more of the following:
Issue a certificate of device registration pursuant to Section 15310.
Notify the applicant that the submission is inadequate and specify the additional data that must be submitted and reviewed before a registration decision is rendered. In issuing a notification pursuant to this subdivision, the director may specify a reasonable timeframe for the submission of the additional data, moneys, labeling, or information to avoid a requirement for submission of a new application and application fee.
Notify the applicant of the director’s decision to deny registration.
If an applicant for registration of a device complies with this chapter and the regulations that are adopted pursuant to this chapter, the director shall register the device and issue a certificate of device registration to the applicant authorizing the manufacture and sale of the device in this state.
If the director finds that registration must be denied due to noncompliance with this chapter or the regulations that are adopted pursuant to this chapter, the director shall deny registration. Upon the request of the applicant, the director may hold a hearing to reconsider the director’s decision to deny the application.
Each applicant for a certificate of device registration shall inform the director of every brand and trademark of a device that the applicant intends to manufacture for sale, advertise, deliver or otherwise provide, offer for sale or lease, sell, lease, possess, or use. The director may require an applicant to identify each component in the device.
The registrant of a device shall immediately notify the director of any proposed change to the device including, but not limited to, labeling composition, configuration method of application, and use of the device. The director shall determine whether the changes require the director’s approval before the changed device may be manufactured for sale, advertised, delivered or otherwise provided, offered for sale or lease, sold, leased, possessed, or used in this state. The director shall notify the registrant of this determination.
The director may issue a device research permit for the scientific evaluation of new devices for a limited period of time determined by the director.
The director determines that the device has demonstrated serious uncontrollable adverse effects on human health or safety, property, or the environment.
The director determines that the use of the device is of less public value or greater detriment to the environment than the benefit received by its use.
The director determines that a false or misleading statement is made or implied by the registrant or his or her agent, or the applicant for registration, either verbally or in writing, or in the form of any advertising literature concerning the device.
The director determines that the registrant, or his or her agent, or applicant for registration has failed to report any adverse effect or risk as required by Section 15316.
The director determines that the registrant has failed to comply with the requirements of a reevaluation of the registrant’s device.
The director determines that false information relating to the testing of the device, including the nature of any protocol, procedure, substance, organism, or equipment used, observation made, or conclusion or opinion formed, was submitted to the director.
When taking action or making a determination pursuant to this section, the director may require practical demonstrations and scientific testing that the director finds are necessary to determine the facts. The demonstrations or testing shall be conducted by the applicant for registration, registrant, or parties interested in the device registration.
If, during the registration process, or at any time after the registration of a device, the applicant or registrant has factual or scientific information showing any adverse effect or risk of the device to human health or safety, property, or the environment that has not been previously submitted to the director, the applicant for registration or the registrant, as the case may be, shall immediately submit the information to the director.
If the director has reason to believe that any of the conditions stated in Section 15315 are applicable to any registered device and that the use or continued use of the device constitutes an immediate substantial danger to human health or safety, property, or the environment, the director, after notice to the registrant, may suspend the registration of that device pending a hearing and final decision. If the director does not file an accusation pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code within 30 days from the date of the suspension, the suspension shall be terminated.
The director may cancel a certificate of device registration, or refuse to issue a certificate of device registration to any manufacturer, importer, or dealer in any device that repeatedly violates this chapter or the regulations of the director.
A registrant at any time may request that the registration of any of its devices be voluntarily canceled. The request shall be in writing to the director and shall include a waiver of the registrant’s right to a hearing on the cancellation.
The director shall mail a notice of voluntary cancellation of registration of the device to the registrant. The notice shall specify the effective date of the cancellation.
ARTICLE 4. Labeling and Warranty [15325. - 15327.]
The registrant of a device shall furnish printed directions for use on the label or shall enclose the printed directions with the device. The device label shall state the name, brand, or trademark, if any, under which the device will be sold and the name and address of the device manufacturer, importer, dealer, or vendor.
The registrant of a device may print limitations of warranty on the label with respect to the use of the device, as the registrant considers proper.
Notwithstanding subdivision (a), no limitations of warranty by the device manufacturer, registrant, user, seller, lessor, or licensor shall exclude or waive either of the following implied warranties:
That the device corresponds to all claims and descriptions that the registrant has made in print regarding the device.
That the device is reasonably fit for use for any purpose for which it is intended according to any printed statement of the registrant.
Except as otherwise provided in this chapter, the registrant is not liable for any injury or damage that is suffered solely by reason of any of the following:
The use of the device for a purpose different from that represented by the label.
The use of the device contrary to the printed directions of the registrant.
ARTICLE 5. Seizure [15330. - 15330.]
If any device is determined to be manufactured for sale, advertised, delivered or otherwise provided, offered for sale or lease, sold, leased, possessed, or used in violation of any of the provisions of this chapter or any regulations adopted pursuant to this chapter, or if the device has been, or is intended to be, manufactured for sale, advertised, delivered or otherwise provided, offered for sale or lease, sold, leased, possessed, or used in violation of those provisions, or when the registration of the device has been canceled by a final order or has been suspended, the director may issue a written “cease and desist” order to any person who owns, controls, or has custody of the device. After receipt of the cease and desist order, the receiver of the order shall not manufacture for sale, advertise, deliver or otherwise provide, offer for sale or lease, sell, lease, possess, or use the device described in the order except in accordance with the provisions of the order.
The director may seize or quarantine any device that meets any of the following criteria:
The device is not registered pursuant to this chapter or any of the regulations adopted pursuant to this chapter.
Any of the claims made for the device or any of the directions for its use differs in substance from the representation made in connection with its registration.
The device is misbranded or mislabeled.
When used in accordance with the requirements imposed under this chapter and as directed by the labeling or printed directions, the device nevertheless causes unreasonable adverse effects on human health, human safety, human welfare, property, or the environment.
The device is manufactured for sale, advertised, delivered or otherwise provided, offered for sale or lease, sold, leased, possessed, or used in violation of a cease and desist order.
The device is otherwise not in conformity with this chapter or the regulations adopted pursuant to it.
After a device is seized or quarantined, the department shall provide the person from whom the device was seized or quarantined an opportunity for a hearing.
ARTICLE 6. Device Usage [15331. - 15331.]
The use of any device shall not conflict with the label on the device as registered pursuant to this chapter.
ARTICLE 7. Violations [15340. - 15340.]
Any device that is not registered pursuant to this chapter, or whose registration has been canceled or suspended, except to the extent that the sale, lease, or other provision has been authorized by the director.
Any registered device if any claim made for it as a part of its distribution or sale substantially differs from any claim made for it as a part of the information required in connection with its registration.
Any registered device the configuration of which differs at the time of its sale, lease or other provision, or use from its configuration as described in the information required in connection with its registration.
Any device that is misbranded or mislabeled.
It is unlawful for any person directly, indirectly, or through another, to do any of the following:
Violate any provision of this chapter and any rules or regulations adopted by the director pursuant to this chapter.
Manufacture for sale, advertise, deliver or otherwise provide, offer for sale or lease, sell, lease, possess, or use any device, except in compliance with this chapter and regulations adopted pursuant to this chapter.
Detach, alter, deface, or destroy, in whole or in part, any device labeling.
Refuse to prepare, maintain, or submit any records or reports required by the director under this chapter or regulations adopted pursuant to this chapter for a registered device.
Use any registered device in a manner inconsistent with its registration and labeling.
Use any device that is under a valid device research permit contrary to the provisions of that permit.
Violate any order issued pursuant to this chapter.
Knowingly falsify all or part of any application for registration, application for a device research permit, any information submitted to the director pursuant to this chapter, any records required to be maintained pursuant to this chapter, or any report filed under this chapter.
Falsify all or part of any information relating to the testing of any device, including the nature of any protocol, procedure, substance, organism, or equipment used, observation made, or conclusion or opinion formed, submitted to the director, or that the person knows will be furnished to the director or will become a part of any records required to be maintained by this chapter or regulations adopted pursuant to this chapter.
Submit to the director data known to be false in support of a registration.
It is not a violation of subdivision (a) for any person to manufacture for sale, transport, or use any device pursuant to a valid research permit in effect with respect to that device and that use or possession.
DIVISION 8. VESSEL AND AIRCRAFT GARBAGE [16001. - 16154.]
CHAPTER 1. Definitions [16001. - 16006.]
Unless the context otherwise requires, the definitions in this chapter govern the construction of this division.
“Aircraft” means every description of craft or other contrivance which is used, or capable of being used, as a means of transportation through the air from origins in other states or territories or in foreign countries.
“Food stores” means fruits, vegetables, or animal products which are carried as stores of vessels and aircraft and includes fruits, vegetables, or animal products which are carried in passengers’ and crews’ quarters.
“Garbage” means waste material, such as food scraps, table refuse, galley refuse, and refuse from stores of vessels and aircraft, including such waste material in passengers’ and crews’ quarters, which is derived, in whole or in part, from fruits, vegetables, or animal products.
“Territorial waters of California” means all navigable waters of this state including all portions of the sea within its jurisdiction which are used by vessels or aircraft.
“Vessel” means every description of craft or other contrivance which is used, or capable of being used, as a means of transportation in or on coastal, intercoastal, or foreign waters.
CHAPTER 2. General Provisions [16051. - 16051.]
Regulations which are adopted by the director pursuant to this division shall not conflict with Agricultural Research Service of the United States Department of Agriculture orders or regulations which pertain to garbage that is derived from meats or meat products which originate in any country which is listed as a country in which there are animals which are infected with the disease known as rinderpest or with foot-and-mouth disease.
CHAPTER 3. Containers and Receptacles [16101. - 16101.]
If means of incineration of, or other approved processing for, garbage are not available aboard any vessel or aircraft in the state, the master or other person that is in charge of such vessel or aircraft shall provide containers or receptacles with tight-fitting covers in which the garbage shall be retained while within the territorial waters of, or on the land in, California pending incineration or approved treatment under the supervision and pursuant to the regulations of the director.
CHAPTER 4. Violations [16151. - 16154.]
It is unlawful for any person to throw, discharge, deposit, remove, or carry garbage, or cause, suffer, or procure garbage to be thrown, discharged, deposited, removed, or carried, from any vessel, aircraft, or any other vehicle into any territorial waters, or onto land within the state, except for any of the following:
Immediate burning in incinerators.
Approved treatment or approved disposal under the supervision and pursuant to the regulations of the director.
Delivery to a garbage collector that, for the purpose of accepting garbage, is licensed by the director or by the federal government.
It is unlawful for any person to retain or maintain garbage on any vessel, aircraft, or other vehicle within the state, except in tightly closed containers or receptacles and under such treatment as may be prescribed by the director.
It is unlawful for any person to remove food stores from any vessel, aircraft, or other vehicle except under a permit issued by the director.
It is unlawful for any person to violate, or to aid, abet, authorize, or instigate a violation of, this division.
DIVISION 9. ANIMALS GENERALLY [16301. - 19700.]
PART 1. ANIMALS AT LARGE [16301. - 17153.]
CHAPTER 1. Definitions [16301. - 16303.]
Unless the context otherwise requires, the definitions in this chapter govern the construction of this part.
“Animal” includes any domestic bovine animal, horse, mule, burro, sheep, goat, or swine, or the hide, carcass, or portion of a carcass of any such animal.
“Inspector” means a hide and brand inspector. It includes the persons who are specified in Section 20010.
CHAPTER 2. General Provisions [16401. - 16461.]
ARTICLE 1. Application [16401. - 16401.]
This part, including the provisions regarding payment of fees, is applicable to all state and county institutions engaging in livestock operations.
ARTICLE 2. Investigation [16411. - 16411.]
The director may make any and all necessary investigations relative to reported violations of this part pursuant to Article 2 (commencing with Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the Government Code.
ARTICLE 3. Criminal Penalty [16421. - 16421.]
Except as otherwise provided in this part or in subdivision (b), every person that violates this part is guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), by imprisonment of not less than 10 days nor more than one year, or by both the fine and imprisonment. Each violation during any day shall constitute a separate offense.
Every person who violates the following is guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), by imprisonment of not less than 10 days nor more than six months, or by both the fine and imprisonment. Each violation during any day shall constitute a separate offense:
Article 1 (commencing with Section 16501) of Chapter 3.
Chapter 5 (commencing with Section 16801).
Article 5 (commencing with Section 17121) of Chapter 7.
Chapter 8 (commencing with Section 17150).
ARTICLE 4. Civil Penalties and Remedies [16441. - 16443.]
Any person that violates any provision of this part or any regulations issued pursuant to it is liable civilly for a penalty in an amount not to exceed a sum of five hundred dollars ($500) for each violation. Any money recovered under this section shall be paid into the Department of Agriculture Fund.
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring action for civil penalties in the name of the people of this state in any court of competent jurisdiction in this state against any person violating any provision of this part.
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring an action in the name of the people of this state in the superior court for an injunction against any person violating any provision of this part or any regulation which is duly issued by the director pursuant to it.
Any proceedings pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
ARTICLE 5. Funds [16461. - 16461.]
Any money in the Department of Agriculture Fund derived under any of the provisions of this part may be expended for the administration and enforcement of any of the provisions of the following portions of this code, notwithstanding any other provision of law limiting the expenditure of any such money to some specific purpose or to the administration or enforcement of some specific section, article, or chapter of this part:
Division 10 (commencing with Section 20001).
Division 11 (commencing with Section 23001).
CHAPTER 3. Pedigree and Proof of Ownership [16501. - 16527.]
ARTICLE 1. Pedigree [16501. - 16501.]
It is unlawful for any person by any false or fraudulent pretense to do any of the following:
Obtain from any association organized for the purpose of improving the breed of domestic animals a certificate of registration of any animal in the herd register, or other register of such association or a transfer of any such registration.
Give, for a valuable consideration, a false pedigree of any animal, with intent to mislead.
ARTICLE 2. Proof of Ownership [16521. - 16527.]
An inspector shall seize any bovine animal, horse, mule, or burro, or the hide or carcass of any of those animals, that is within any of the following classes:
Found in the possession of a person who does not also have in his or her possession proof of ownership.
Presented for inspection and that is not claimed by the consignor or consignee.
An estray as defined in Section 17001.5.
At the time of seizure, the person from whom the animal is seized shall be given a notice of rights under this chapter.
Evidence of ownership of an animal or hide may include any of the following:
A recorded brand registered in the name of the person in possession of the animal or hide.
A brand inspection certificate.
A bill of sale from the owner of the brand on the animal or hide.
In the case of an unbranded animal or hide, a bill of sale which gives a description of the breed, sex, color, and natural markings, if any.
A dairy exemption number.
A dairy exemption number shall be evidence of ownership of cull beef cows and bulls of a recognized dairy breed presented for sale at a registered or posted salesyard, or licensed slaughter plant for immediate slaughter. Any person owning a dairy farm as defined in Section 32505 may apply to the secretary for an exemption number.
Every five years, the secretary may charge a fee to cover the cost of issuing and renewing a dairy exemption number. The fee may not exceed fifty dollars ($50). The secretary may refuse to issue such number to persons who have violated any provision of Division 9 (commencing with Section 16301), Division 10 (commencing with Section 20001), or Division 11 (commencing with Section 23001) of the Food and Agricultural Code, or to persons convicted of livestock theft.
The dairy exemption number shall be written on the bill of consignment, defined in Section 21703, when the cattle and consignment slip are presented to an inspector at the registered or posted salesyard, or licensed slaughter plant. The salesyard operator shall display the letters “EX” in the description line of the salesyard outbilling. An exemption number shall be deemed to meet the identification information requirements of Section 21703. The cows shall be consigned, owned, and sold in the name of the person having the exemption number.
The secretary may revoke the dairy exemption number of any person who violates any provision of Division 9 (commencing with Section 16301), Division 10 (commencing with Section 20001), or Division 11 (commencing with Section 23001) of the Food and Agricultural Code, or who is convicted of livestock theft.
Evidence of ownership of a carcass may include a bill of sale, sales tag, or sales memorandum which shows all of the following:
The names of the seller and buyer.
The date of sale.
The quantity sold.
It is unlawful for any person to refuse to turn over to an inspector any animal, hide, or carcass which is seized pursuant to any provision of this part.
It is unlawful for any person to remove any animal, hide or carcass, which is seized by an inspector or peace officer pursuant to any provision of this division, Division 10 (commencing with Section 20001), or Division 11 (commencing with Section 23001), from the premises where the inspector or peace officer confined it at the time of seizure, except upon release of such animal, hide or carcass, by the inspector or peace officer who seized the animal, hide, or carcass.
Any expense which is incurred in caring for any property seized pursuant to this part shall be paid by the person presenting the property for inspection. The cost of caring for the property so held is a lien upon the property. The lien may be enforced in the manner prescribed by Section 3052 of the Civil Code.
An animal, hide, or carcass seized pursuant to this chapter shall be disposed of pursuant to Chapter 7 (commencing with Section 17001).
CHAPTER 6. Transportation of Animals [16901. - 16909.]
It is unlawful for any person to do any of the following:
Lead, drive, or conduct any animal along the track of a railroad, unless the railroad is built within the limits of a public highway or public place.
Permit any animal to be placed within the fences of a railroad for grazing or other purposes if he has the right to prevent it.
A person that owns or controls the possession of any livestock shall not willfully or negligently permit any of the livestock to stray upon, or remain unaccompanied by a person in charge or control of the livestock upon, a public highway, if both sides of the highway are adjoined by property which is separated from the highway by a fence, wall, hedge, sidewalk, curb, lawn, or building.
It is unlawful for any person to drive any livestock upon, over, or across any public highway between the hours of sunset and sunrise unless he keeps a sufficient number of herders on continual duty to open the road so as to permit the passage of vehicles.
In any civil action which is brought by the owner, driver, or occupant of a motor vehicle, or by their personal representatives or assignees, or by the owner of livestock, for damages which are caused by collision between any motor vehicle and any domestic animal on a highway, there is no presumption or inference that the collision was due to negligence on behalf of the owner or the person in possession of the animal.
It is unlawful for any officer, agent, or conductor of any railroad in this state, to confine any animals in cars for a longer period than 36 consecutive hours if the animals are being carried or transported by the railroad in carloads. At least every 36 hours the animals shall be unloaded for rest, water, and feeding, into properly equipped pens for a period of not less than five consecutive hours.
In estimating the time of confinement pursuant to Section 16905, the period during which animals have been confined without such rest on connecting roads from which they are received, shall be included.
If the owner or person in charge of the animals refuses or neglects to pay for the care and feed of the animals so rested, the company or person operating the railroad may charge the expense of the care and feeding to the owner or consignee and retain a lien upon the animals until the amount of expense is paid.
It is unlawful for any person that owns or operates any motor truck, or motor truck and trailer, or semitrailer, to confine or permit to be confined, in such vehicle, any animal for a longer period than 28 consecutive hours from the time the animal was last fed and watered. Upon the written request of the owner or person in charge of the animal, the period of confinement may be extended to 36 hours. Before the expiration of the permissible period of confinement, the animal shall be unloaded in a humane manner by means of a chute or tailgate of sufficient size into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours.
The failure of a person to feed or water an animal within the time limit prescribed by this section is not a violation of this section if the feeding and watering of the animal is prevented by storm or other accidental or unavoidable causes which could not be anticipated or avoided by the exercise of due diligence and foresight.
In estimating the period of confinement, the time consumed in loading and unloading the animal shall not be considered, but the time during which the animal has been confined without rest, food, or water on any other or connecting vehicle, or outside of the state, shall be included.
CHAPTER 7. Estrays [17001. - 17128.]
ARTICLE 1. Definitions and General Provisions [17001. - 17006.]
As used in this chapter, “taker-up” means any person that takes up an estray animal pursuant to Section 17041.
For the purpose of this chapter, “estray” means any impounded or seized bovine animal, horse, mule, sheep, swine, burro, alpaca, llama, or goat whose owner is unknown or cannot be located.
Any animal that is seized by, or comes into the possession of, an inspector pursuant to this part shall be managed pursuant to this chapter.
Except as provided in this section, this chapter does not affect any law, ordinance, or regulation regarding estrays, the shelter director, other animal control officer, or a public animal control agency or shelter within the limits of any city or county where those laws, ordinances, or regulations are in force.
Upon the impounding of any bovine animal, horse, mule, sheep, swine, burro, alpaca, llama, or goat, the shelter director, other animal control officer, or public animal control agency or shelter shall immediately notify the secretary. Upon receipt of that notice, the secretary shall take possession of any bovine animal and shall manage it pursuant to this chapter.
Any city, county, or city and county that establishes or has established laws, ordinances, or regulations regarding estrays, may opt to follow those laws, ordinances, or regulations instead of this chapter in the handling of estrays that are not bovine animals in accordance with the applicable laws, ordinances, or regulations of the city, county, or city and county.
This section does not authorize any act that violates Section 597 of the Penal Code.
The director may take up estray animals whose owners are unknown and cannot be located.
It is the policy of the state that no adoptable animal should be euthanized if it can be adopted into a suitable home. Adoptable animals include only those animals eight weeks of age or older that, at or subsequent to the time the animal is impounded or otherwise taken into possession, have manifested no sign of a behavioral or temperamental defect that could pose a health or safety risk or otherwise make the animal unsuitable for placement as a pet, and have manifested no sign of disease, injury, or congenital or hereditary condition that adversely affects the health of the animal or that is likely to adversely affect the animal’s health in the future.
It is the policy of the state that no treatable animal should be euthanized. A treatable animal shall include any animal that is not adoptable but that could become adoptable with reasonable efforts. This subdivision, by itself, shall not be the basis of liability for damages regarding euthanasia.
Animals that are irremediably suffering from a serious illness or severe injury shall not be held for owner redemption or adoption. Except as provided in subdivision (b) of Section 31108 and subdivision (c) of Section 31752, newborn animals that need maternal care and have been impounded without their mothers may be euthanized without being held for owner redemption or adoption.
ARTICLE 2. Taker-Up of Estrays [17041. - 17045.]
Except as provided in Article 5 (commencing with Section 17121) of this chapter, any person that finds any estray domestic animal upon his premises, or upon premises to which he has the right of possession, or upon any highway which is adjacent to such premises, may take up the animal and have a lien for all expenses which are incurred in taking up, keeping, and caring for it.
Any person that takes up an estray animal shall confine it in a secure place, and shall immediately file with the secretary a notice containing all of the following:
A description of the animal seized.
The marks and brands, if any.
The probable value of the animal.
A statement of the date and place where it was taken up and confined.
The taker-up of an estray animal shall use reasonable care to preserve it from injury. If it dies or escapes from the taker-up at any time while he is holding it pursuant to this chapter, the taker-up shall not be held liable in any manner therefor.
The taker-up is entitled to the sum prescribed by Section 17095 for the keeping and care of the estray animal.
Except as otherwise provided in this chapter, it is unlawful for any person to remove any animal from the possession of the taker-up.
ARTICLE 3. Possession by Inspector [17061. - 17069.]
Upon demand of any authorized inspector, the taker-up shall deliver possession of the animal to the inspector.
Except as otherwise provided in this chapter, it is unlawful for any person to remove from the possession of an inspector any animal so delivered to him.
If the animal which is seized or otherwise in the possession of the inspector is branded, the director shall cause a search to be made of the brand records to ascertain the owner.
If the brands or marks are recorded, the director shall immediately, by letter, notify the person in whose name the brands or marks are recorded.
If the owner is not found, and the estimated value of the animal exceeds two hundred twenty-five dollars ($225), the secretary shall cause a notice of the taking up of, and intent to sell the animal to be prepared. The notice may be distributed to the county department of agriculture and to all sales yards in the state. The secretary may limit distribution of the notice, however, to those sales yards that deal in the same type of animal as the animal that is taken up.
The notice shall be posted for a period of 14 days on a bulletin board in each office of the Bureau of Livestock Identification.
In addition to posting and distributing the notice, the secretary shall periodically publish a list of the animals for which notice was given pursuant to this section, including the brands and descriptions of the branded animals and descriptions of the unbranded animals in the classified section of a livestock industry publication that is in general circulation throughout the State of California.
If the estimated value of the animal is less than two hundred twenty-five dollars ($225) and a notice is posted for five days on a bulletin board in each office of the Bureau of Livestock Identification, the director may cause the sale of the animal at a public sale and hold the proceeds as provided in Article 4 (commencing with Section 17091) of this chapter.
The notice of the taking up of an animal shall describe the weight, sex, breed, color, marks, and brands, if any, of the animal and shall state the time and place of its proposed sale.
Any person that claims ownership in the animal may, at any time, but not later than 14 days after the first posting of notice, file his or her proofs of ownership with the director and the director shall proceed to hear and determine the claim of ownership.
If ownership is proved to the satisfaction of the director, the animal shall be turned over to the owner upon payment by the owner of all expenses which were incurred in the handling of the animal.
ARTICLE 4. Disposal and Sale [17091. - 17096.]
If the animal at any time while in the possession of an inspector is in a condition which requires immediate disposal, the animal may be disposed of by the director. The proceeds from the salvage, if any, in excess of expenses which were incurred in the handling of the animal shall be paid to the person proving ownership pursuant to Section 17096.
If after 14 days from the date of the first posting of notice no satisfactory proof of ownership of the animal has been made, or if the owner fails or refuses to pay all expenses which were incurred, the director shall sell the animal at public sale.
All sales which are made pursuant to this chapter convey a good and valid title to the purchaser. The former owner of the animal so sold is thereafter barred from all right to recover it.
In lieu of public sale, the director may sell the animal at private sale at a price not less than the appraised value of the animal. The appraisal shall be made by a board of three stockmen who are qualified to make the appraisal, to be selected as follows:
One to be named by the director.
One by the person from whose possession the estray animal was taken.
One selected jointly by the stockmen who are selected pursuant to subdivisions (a) and (b) of this section.
Any carcass or portion of a carcass may be sold by the director at any time at the market price which prevails at the time of sale.
The proceeds from the sale of any animal shall be paid into, and the expenses of holding, advertising, sale, and other incidental expenses shall be paid from, the Department of Food and Agriculture Fund. For the keeping and care of the estray animal, the taker-up is entitled to a per day payment based on the prevailing rates charged by commercial enterprises that feed livestock on a custom basis.
If any person shall, within one year after the date of the sale, prove to the satisfaction of the director his ownership of an animal which was sold pursuant to this article, the director shall order the net proceeds of the sale of the animal to be paid to such person.
ARTICLE 5. Grazing Counties [17121. - 17128.]
A lawful fence is any fence which is good, strong, substantial, and sufficient to prevent the ingress and egress of livestock. No wire fence is a good and substantial fence within the meaning of this article unless it has three tightly stretched barbed wires securely fastened to posts of reasonable strength, firmly set in the ground not more than one rod apart, one of which wires shall be at least four feet above the surface of the ground. Any kind of wire or other fence of height, strength and capacity equal to or greater than the wire fence herein described is a good and substantial fence within the meaning of this article. The term “lawful fence” includes cattle guards of such width, depth, rail spacing, and construction as will effectively turn livestock.
In any county or part of a county devoted chiefly to grazing and so declared pursuant to this article, a person shall not have the right to take up any estray animal found upon his premises, or upon premises to which he has the right of possession, nor shall he have a lien thereon, unless the premises are entirely enclosed with a good and substantial fence.
The following counties or parts of counties are declared to be devoted chiefly to grazing:
That portion of Trinity which is outside of the area described in Section 17125.
That portion of Shasta outside of the area which is described in Section 17126.
Siskiyou, Lassen, and Modoc.
Any county or part of a county which is declared to be devoted chiefly to grazing pursuant to Section 17124.
The board of supervisors of any county may by ordinance declare that such county, or part of such county, is devoted chiefly to grazing.
The following portions of Trinity County are declared not to be devoted chiefy to grazing:
Beginning at the section corner common to Sections 7 and 18, T. 33 N., R. 9 W. and Sections 12 and 13, T. 33 N., R. 10 W., thence west 20 chains; then north 20 chains; thence west 20 chains; thence north 50 chains; thence east 17.09 chains; then south 32° west, 5.41 chains; thence south 59° east, 13.12 chains; thence south 42° 30´ east, 4.80 chains; thence north 22° east, 5.41 chains; thence north 22° west, 4.90 chains; thence north 75° west, 3.40 chains; thence north 33° west, 2.45 chains; thence north 58° west, 4.47 chains; thence east 15.02 chains; thence south 10° west, 4.66 chains; thence south 22° east, 3.75 chains; thence north 12° east, 8.04 chains; thence east 2.00 chains; thence north 9.3612 chains; thence north 14° 30´ east, 10.58 chains; thence north 20° 30´ west, 0.42 chains; thence east 17.59 chains; thence south 30.00 chains; thence east 20.00 chains; thence south 40.00 chains; thence west 10. 00 chains; thence south 20.00 chains; thence west 30.00 chains, to and closing on the starting corner.
Beginning at the northeast corner of the southwest quarter of Section 17; thence south along the east line of said quarter section and the east line of the northwest quarter of Section 20, to the southeast corner of said quarter section; thence west along the south line of said quarter section and the south line of the northeast quarter of Section 19 to the southwest corner of said quarter section; thence north along the west line of said quarter section and the west line of the southeast quarter of Section 18 to the northwest corner of said quarter section; and thence east along the north line of said quarter section and the north line of the southwest quarter of Section 17 to the northeast corner of said quarter section and the point of beginning; being the southwest quarter of Section 17, the southeast quarter of Section 18, the northeast quarter of Section 19, and the northwest quarter of Section 20, T. 33 N., R. 8 W., Mount Diablo base and meridian.
Highway U.S. 299 and all land within 500 feet of each side of the centerline of the highway.
All of Section 5, T. 33 N., R. 9 W., M.D.M.
The portion of Shasta County within the following metes and bounds is declared not to be devoted chiefly to grazing:
Beginning at the intersection of the Reading Grant line and the northwest corner of the Anderson-Cottonwood Irrigation District, thence southerly along said Reading Grant line to the first intersection with the boundary of the dissolved Happy Valley Irrigation District; thence counterclockwise around the boundaries of said dissolved Happy Valley Irrigation District to the southeast corner of Section 20, T. 30 N., R. 4 W., M.D.B. and M.; thence directly east along section lines to the westerly boundary line of the Anderson-Cottonwood Irrigation District; thence counterclockwise around the boundaries of said district to Cottonwood Creek; thence down Cottonwood Creek to its confluence with the Sacramento River; thence counterclockwise along the most easterly and northerly boundary lines of said Anderson-Cottonwood Irrigation District, including a crossing of the Sacramento River, to the point of beginning.
The board of supervisors of Shasta or Trinity County may, if it determines that all or any part of the county under its jurisdiction has ceased to be devoted chiefly to grazing, provide by ordinance that estray animals may thereafter be taken up on unenclosed property in the county or part of county under its jurisdiction. It is the intent and purpose of this section that the provisions of law which are generally applicable throughout the state shall be extended to all of the county when the conditions upon which the exceptions were based have ceased to exist.
The act entitled “An act concerning lawful fences, and animals, trespassing upon lawfully enclosed lands,” passed March 30, 1850 (Ch. 49, Stats. 1850), and an act entitled “An act concerning lawful fences in the Counties of San Bernardino, Colusa, Shasta, Tehama and Placer,” approved April 18, 1859 (Ch. 266, Stats. 1859), insofar as the provisions of each of the acts apply to or affect the Counties of Trinity, Shasta, except that portion described in Section 17126, and Siskiyou, are continued in force, except as to goats, swine, or hogs, which may be taken up in the counties when the goats, swine or hogs estray or trespass on lands of others. The provisions of this chapter apply to goats, swine, or hogs in such counties, but in all other respects the acts specified in this section are continued in full force therein, it being determined that the conditions prevailing in the Counties of Trinity, Shasta, except that portion described in Section 17126, and Siskiyou demand the continued application of the acts in the counties until such time as action is taken pursuant to Section 17124.
CHAPTER 8. Electrified Fences [17150. - 17153.]
The Legislature finds and declares that improperly designed and installed electrified fences have caused injuries and in some instances have resulted in the deaths of persons, particularly children, coming into contact with the conductive elements thereof. In order to prevent further such accidents, it is the intent of the Legislature in enacting this chapter to provide for the study and development and enforcement of safety standards for electrified fences.
As used in this chapter, “electrified fence” means any fence and appurtenant devices, including, but not limited to, fences and devices used in animal control, and including, but not limited to, a fence consisting of a single strand of wire supported by posts or other fixtures, which has an electrical charge or is connected to a source of electrical current and which is so designed or placed that a person or animal coming into contact with the conductive element of the fence receives an electrical shock.
For purposes of this chapter, “electrified fence” does not include an electrified security fence as described in Section 835 of the Civil Code.
No electrified fences shall be offered for sale, sold, installed, or used in this state, or otherwise connected to a source of electrical current, unless the electrical current is limited and regulated by an electrical controller which meets or exceeds the standards or specifications of the National Electrical Code of the National Fire Protection Association, international standards of the International Electrotechnical Commission, or the Underwriters Laboratories for intermittent type electric fence or electrified fence controllers.
The provisions of this chapter shall not be construed to preclude regulation of electrified fences by cities and counties, including, but not limited to, requiring the installation or use of electrified fences under permit, except that such regulation shall not permit the installation or use of electrified fences which do not conform to the requirements of this chapter.
PART 2. UNLAWFUL MARKING AND BRANDING [17401. - 17954.]
CHAPTER 1. General Provisions [17401. - 17401.]
The director may make any and all necessary investigations relative to reported violations of this part pursuant to Article 2 (commencing with Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the Government Code.
CHAPTER 2. Violations [17551. - 17553.]
It is unlawful for any person with the intent to steal any bovine animal, horse, colt, jack, jenny, or mule which belongs to another person, or prevent its identification by the true owner to do any of the following:
Mark or brand any such animal with any brand or mark except the recorded brand or brand and mark of the owner of the animal.
Alter or deface a brand or mark on such an animal.
It is unlawful for any person, with the intent to steal any sheep, goat, hog, shoat, or pig, or prevent its identification by the true owner, to do any of the following:
Mark or brand such an animal with any brand or mark except the recorded brand or brand and mark of the owner of the animal.
Alter or deface a brand or mark on such an animal.
It is unlawful for any person to mark any bovine animal by cutting off more than one-half of an ear of the animal.
CHAPTER 3. Criminal Penalties [17701. - 17702.]
Except as otherwise provided in Section 17701, any violation of any provision of this part is a misdemeanor.
CHAPTER 4. Civil Penalties and Remedies [17951. - 17954.]
Any person that violates any provision of this part or the regulations which are issued pursuant to it is liable civilly for a penalty in an amount not to exceed a sum of five hundred dollars ($500) for each violation. Any money which is recovered under this section shall be paid into the Department of Agriculture Fund.
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring action for civil penalties in the name of the people of this state in any court of competent jurisdiction in this state against any person violating any provision of this part.
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring an action in the name of the people of this state in the superior court for an injunction against any person violating any provision of this part or any regulation which is duly issued by the director pursuant to it.
Any proceedings pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
Any moneys in the Department of Agriculture Fund which were derived under any of the provisions of this chapter may be expended for the administration and enforcement of any of the provisions of this code stated in Section 16461, notwithstanding any other provision of law which limits the expenditure of any such money to some specific purpose or to the administration or enforcement of some specific section of this chapter.
PART 3. SLAUGHTERED ANIMALS [18201. - 19503.]
CHAPTER 1. General Provisions [18201. - 18221.]
ARTICLE 1. Investigation [18201. - 18203.]
The director may make any and all necessary investigations relative to reported violations of this part pursuant to Article 2 (commencing with Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the Government Code.
There is in the department the Bureau of Meat and Poultry Inspection.
ARTICLE 2. Civil Remedies [18221. - 18221.]
The Attorney General shall upon complaint by the director or may upon his own initiative, if after examination of the complaint and evidence he believes a violation to have occurred, bring an action in the name of the people of this state in the superior court for an injunction against any person violating any provision of this part or any regulation which is duly issued by the director pursuant to it.
Any proceedings pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
CHAPTER 2. Packers and Stockyards [18351. - 18382.]
ARTICLE 1. Definitions [18351. - 18353.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Packer” means any person that is engaged in any of the following businesses:
Buying livestock in commerce for purposes of slaughter.
Manufacturing or preparing any meat or meat food product for sale or shipment in commerce.
Manufacturing or preparing any livestock product for sale or shipment in commerce.
“Stockyard” means any place, establishment, or facility commonly known as stockyards, conducted, or operated for compensation or profit as a public market, consisting of pens, or other inclosures, and their appurtenances, in which live cattle, sheep, swine, horses, mules, or goats, are received, held, or kept for sale or shipment in commerce.
ARTICLE 2. Ownership Against Public Policy [18381. - 18382.]
No packer shall own or control, directly or indirectly, through stock ownership or control or otherwise, by himself or through his agents or employees, any interest in a stockyard.
Such ownership or control is hereby declared to be contrary to public policy, as tending to create a monopoly and to interfere with trade and commerce.
CHAPTER 3. Warranties [18501. - 18502.]
In the absence of an express warranty, the mere sale of livestock shall not be construed to imply a warranty of such livestock for any particular purpose.
In the absence of any express warranty, the sale of livestock for slaughter, whether the slaughter will be immediate or otherwise, shall not imply a warranty of fitness for any particular purpose or warranty of merchantable quality, notwithstanding the provisions of subdivisions (1), (2), and (5) of Section 1735 of the Civil Code.
CHAPTER 4. Meat and Poultry Inspection [18650. - 18935.]
ARTICLE 1. Definitions and Short Title [18650. - 18677.]
This chapter shall be known as the California Meat and Poultry Inspection Act.
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Adulterated” means any livestock product or poultry product which is in violation of Article 4 (commencing with Section 18751) of this chapter.
“Animal food manufacturer” means any person that is engaged in the business of preparing any animal food which is derived wholly or in part from any livestock or poultry carcass or any part or product of any such carcass.
“Broker” means any person that is engaged in the business of buying or selling any livestock product or poultry product on commission, or otherwise negotiating any purchase or sale of any livestock product or poultry product, other than for his own account or as an employee of another person.
“Capable of use as human food” means any livestock or poultry carcass, or any part or product of any such carcass, unless it is denatured or otherwise identified as required by the director to prevent its use as human food, or is naturally inedible by humans.
“Container” or “package” means any box, can, tin, cloth, plastic, or other receptacle, wrapper, or cover.
“Federal acts” means the Federal Meat Inspection Act and Federal Poultry Products Inspection Act.
“Federal Food, Drug, and Cosmetic Act” means the act so entitled, approved June 25, 1938 (52 Stat. 1040; 21 U.S.C., Sec. 301 et seq.), and acts amendatory thereof or supplementary thereto.
“Federal Meat Inspection Act” means the act so entitled approved March 4, 1907 (34 Stat. 1260; 21 U.S.C., Sec. 71 et seq.), as amended by the Wholesome Meat Act (81 Stat. 584; 21 U.S.C., Sec. 601 et seq.).
“Federal Poultry Products Inspection Act” means the act so entitled approved August 28, 1957 (71 Stat. 441; 21 U.S.C., Sec. 451 et seq.), as amended by the Wholesome Poultry Products Act (82 Stat. 791; 21 U.S.C., Sec. 451 et seq. ).
“Inspector” means an employee of the department authorized to perform any inspection function under this chapter.
“Label” means a display of written, printed, or graphic matter upon any article or the immediate container of any article. It does not, however, include package liners.
“Livestock” means any cattle, sheep, swine, goat, or any horse, mule or other equine, whether live or dead.
“Livestock product” means any carcass, part of a carcass, meat, or meat food product of any livestock.
“Meat food product” means any product which is capable of use as human food that is made wholly or in part from any meat or other portion of the carcass of any cattle, sheep, swine, or goat. The director may exempt from this definition any product which contains meat or any other portion of such a carcass only in a relatively small proportion which is found by the director not to be a product of the meat food industry for the purposes of this chapter, under such conditions as he may prescribe to assure that the meat or other portion of such carcass which is contained in such product is not adulterated and that such product is not represented as a meat food product. The term meat food product, as applied to any food product of any equine, has the same meaning as is provided in this paragraph with respect to meat food products of cattle, sheep, swine, and goats.
“Misbranded” means any livestock product or poultry product which is in violation of Article 5 (commencing with Section 18781) of this chapter.
“Official certificate” means any certificate which is prescribed by regulations of the director for issuance by an inspector or other person performing official functions under this chapter.
“Official device” means any device which is prescribed or authorized by the director for use in applying any official mark.
“Official establishment” means any establishment at which inspection of the slaughter of livestock or poultry, or the preparation of any livestock product or poultry product, is maintained under the authority of this chapter.
“Official inspection legend” means any symbol which is prescribed by the director that shows that an article was inspected and passed in accordance with this chapter.
“Offical mark” means the official inspection legend or any other symbol which is prescribed by the director to identify the status of any article or livestock or poultry under this chapter.
“Person” includes any individual, partnership, corporation, limited liability company, association, or other business unit, and any officer, agent, or employee thereof.
“Pesticide chemical,” “food additive,” “color additive,” and “raw agricultural commodity” shall have the same meanings as under the Federal Food, Drug, and Cosmetic Act.
“Prepared” means slaughtered, canned, salted, stuffed, rendered, boned, cut up, or otherwise manufactured or processed.
“Poultry” means any domesticated bird, whether live or dead.
“Poultry product” means any poultry carcass, any part of a poultry carcass, or any product which is made wholly or in part from any poultry carcass or any part of a poultry carcass. The director may exempt from this definition any product which contains any poultry ingredient only in a relatively small proportion which is found by him not to be a product of the poultry food industry for the purposes of this chapter, under such condition as he may prescribe to assure that the poultry ingredient in such product is not adulterated and that such product is not represented as a poultry product.
“Renderer” means any person that is engaged in the business of rendering any livestock or poultry carcass, or any part or product of such a carcass, except rendering conducted under inspection or exemption under this chapter.
ARTICLE 2. General Provisions [18691. - 18697.]
Meat, meat food products, poultry, and poultry products are an important source of the nation’s total supply of food. It is essential in the public interest that the health and welfare of consumers be protected by assuring that meat, meat food products, slaughtered poultry, and poultry products, distributed to them are wholesome, not adulterated, and properly marked, labeled, and packaged. Unwholesome, adulterated, or misbranded meat, meat food products, poultry, or poultry products, are injurious to the public welfare, destroy markets for wholesome, not adulterated and properly labeled and packaged meat, meat food products, poultry, and poultry products, and result in sundry losses to livestock and poultry producers and processors of meat, meat food products, poultry, and poultry products, as well as injury to consumers. Unwholesome, adulterated, mislabeled, or deceptive packaged articles can be sold at lower prices and compete unfairly with wholesome, not adulterated, and properly labeled and packaged articles, to the detriment of consumers and the public generally. It is hereby found that regulation by the director and cooperation by this state and the United States as contemplated by this chapter are appropriate to protect the health and welfare of consumers and otherwise effectuate the purposes of this chapter.
It is the objective of this chapter to provide for meat and poultry products inspection programs that will impose and enforce requirements with respect to intrastate operations and commerce that are at least equal to those imposed and enforced under the Federal Meat Inspection Act and the Federal Poultry Products Inspection Act with respect to operations and transactions in interstate commerce. The director shall administer this chapter so as to accomplish this purpose. The Department of Agriculture is designated as the appropriate state agency to cooperate with the Secretary of Agriculture of the United States in administration this chapter.
The regulations which are adopted pursuant to this chapter shall conform, so far as possible, to the rules, regulations, and standards of the United States Department of Agriculture which govern the inspection, preparation, and processing of livestock and livestock products and poultry and poultry products.
Notwithstanding any provision of law to the contrary, the director may adopt, by regulation, standards and requirements equal to those of the federal acts, including, but not limited to, standards and requirements of inspection, sanitation, reinspection, preparation, processing, buying, selling, transporting, storing, identification, recordkeeping, registration, and labeling. The regulations shall not be less restrictive than state statutory requirements. The director may enter into cooperative agreements with the Secretary of Agriculture of the United States to enforce such standards and requirements in this state.
This chapter applies to any person, establishment, animal, or article regulated under the federal acts only to the extent provided for in the federal acts. The exemptions provided in the federal acts are, however, applicable to this chapter insofar as they are not contrary to this division and Chapter 10 (commencing with Section 113025) of Part 6 of Division 104 of the Health and Safety Code.
If slaughtering or carcass preparation or processing of any meat, meat products, poultry, or poultry product is conducted in an establishment where state inspection is maintained, at hours considered overtime for state employees, or on legal holidays, the owner or operator of the establishment shall, by contract or agreement with the department, make arrangement to defray the additional cost for salaries and expenses for persons employed by the department to conduct the necessary inspection work during the overtime periods.
The director may cooperate with the Secretary of Agriculture of the United States in administration of this chapter to effectuate the purposes stated in Sections 18691 and 18692, accept federal assistance for that purpose and spend public funds of this state appropriated for administration of this chapter to pay the state’s proportionate share of the estimated total cost of the cooperative program.
The director may do all of the following:
Recommend to the Secretary of Agriculture of the United States for appointment to the advisory committees provided for in the federal acts, such officials or employees of the department as the director shall designate.
Serve as the representative of the Governor for consultation with the Secretary of Agriculture under the Federal Meat Inspection Act and the Federal Poultry Products Inspection Act.
ARTICLE 3. Inspections and Regulations [18721. - 18738.]
To accomplish the purposes of Article 2 (commencing with Section 18691) of this chapter, the director shall require ante mortem and post mortem inspections, quarantine, segregation, and reinspections with respect to the slaughter of any livestock or poultry, or the preparation of any livestock product or poultry product at every establishment in this state, except an establishment which is exempted by him under Section 18811, at which livestock or poultry are slaughtered, or any livestock product or poultry product, is prepared for human food solely for distribution in intrastate commerce.
The director shall require the identification of livestock and poultry for inspection purposes, and the marking and labeling of any livestock product or poultry product or its containers, or both, as either:
“California Inspected and Passed,” if the product is found upon inspection to be not adulterated.
“California Inspected and Condemned,” if the product is found upon inspection to be adulterated. The destruction for food purposes of any product condemned under this subdivision shall be under the supervision of an inspector.
The director shall prohibit the entry into official establishments of any livestock product or poultry product which was not prepared under federal inspection or inspection pursuant to this chapter and further limit the entry of any such product or other materials into such establishments under such conditions as he deems neccessary to effectuate the purposes of this chapter.
The director shall require that when any livestock product or poultry product leaves official establishments it shall bear directly thereon or on its containers, or both, as he may require, all information required under Article 5 (commencing with Section 18781) and require approval of all labeling and containers to be used for such product when it is sold or transported in intrastate commerce to assure that the product and the labeling and containers comply with the requirements of this chapter.
The director shall investigate the sanitary conditions of each establishment required to have inspection under Section 18721 and shall withdraw or otherwise refuse to provide inspection service at any establishment where the sanitary conditions are such as to render adulterated any livestock product or poultry product which is prepared or handled at the establishment. No such establishment shall be operated without inspection.
The director shall prescribe sanitation requirements for all establishments required to have inspection under Section 18721.
The director shall require the following classes of persons to keep such records and for such periods as he may specify, to fully and correctly disclose all transactions involved in their business, and afford to the director and his representatives, access to such places of business, and opportunity, at all reasonable times, to examine the facilities, inventory and such records, to copy the records, and to take reasonable samples of the inventory:
Any person that engages in intrastate commerce in the business of slaughtering any livestock or poultry, or preparing, freezing, packaging or labeling, buying or selling (as brokers, wholesalers or otherwise), transporting, or storing any livestock product or poultry product which is intended for human or animal food.
Any person that engages in intrastate commerce in the business of rendering or in the buying, selling, or transporting of any dead, dying, disabled, or diseased livestock or poultry, or any part of the carcass of any such animal (including poultry) that died otherwise than by slaughter.
The director may refuse to provide inspection service to any establishment that fails to destroy any condemned product as required pursuant to Section 18722 and any regulation promulgated thereunder.
The director may refuse to provide inspection service under this chapter with respect to any establishment for any cause specified in Section 401 of the Federal Meat Inspection Act (21 U.S.C., Sec. 671) or Section 18 of the Federal Poultry Products Inspection Act (21 U.S.C., Sec. 467).
The director may order any labeling or container to be withheld from use if he determines that the labeling is false or misleading or the container is of a misleading size or form.
The director may prescribe the size and style of any type which is to be used for labeling information required pursuant to this chapter, and definitions and standards of identity or composition or standards of fill of container, consistent with federal standards, when he deems such action appropriate for the protection of the public and after consultation with the Secretary of Agriculture of the United States.
The director may prescribe conditions of storage and handling of any livestock product or poultry product by any person engaged in the business of buying, selling, freezing, storing, or transporting such livestock or poultry product in intrastate commerce to assure that it will not be adulterated or misbranded when delivered to the consumer, including requirements that any vehicle used by any establishment which operates under state inspection for transporting any dressed carcass of any animal, including any poultry, intended for human consumption, any part of any such carcass, meat, meat food product, or poultry product inspected and marked pursuant to this chapter shall be maintained in a clean and sanitary condition and shall be regularly inspected by an inspector stationed at the establishment.
Equines shall be slaughtered and prepared in establishments separate from any establishment where any other livestock is slaughtered or any product of any other livestock is prepared.
Every person that is engaged in business in intrastate commerce as a broker, renderer, animal food manufacturer, or wholesaler or public warehouseman of any livestock product or poultry product, or engaged in the business of buying, selling, or transporting in intrastate commerce, any dead, dying, disabled, or diseased livestock or poultry or any part of the carcass of any such animal, including any poultry, that died otherwise than by slaughter shall register with the director his name, the address of each place of business, and all trade names under which he conducts such business.
The director may adopt, by reference or otherwise, such provisions of the rules and regulations under the federal acts, with such changes therein as he deems appropriate to make them applicable to operations and transactions subject to this chapter, which shall have the same force and effect as if promulgated under this chapter, and promulgate such other regulations as he deems necessary for the efficient execution of the provisions of this chapter.
The director may appoint and prescribe the duties of such inspectors and other personnel as he deems necessary for the efficient execution of the provisions of this chapter.
No inspection of any product placed in any container at any official establishment shall be deemed to be complete until the product is sealed or enclosed in the container under the supervision of an inspector.
For purposes of any inspection of any product required by this chapter, any inspector authorized by the director shall have access at all times, by day or night, to every part of every establishment required to have inspection under this chapter, whether the establishment is operating or not.
ARTICLE 4. Adulteration [18751. - 18759.]
A livestock or poultry product is adulterated if it bears or contains any poisonous or deleterious substance which may render it injurious to health, but in case the substance is not an added substance, such livestock or poultry product shall not be considered adulterated if the quantity of such substance in or on such article does not ordinarily render it injurious to health.
A livestock or poultry product is adulterated in each of the following cases:
It bears or contains, by reason of administration of any substance to the livestock or poultry or otherwise any added poisonous or added deleterious substance, other than one which is: (1) a pesticide chemical in or on a raw agricultural commodity; (2) a food additive; or (3) a color additive; which may, in the judgment of the director, make such livestock or poultry product unfit for human food.
It is, in whole or in part, a raw agricultural commodity and such commodity bears or contains any pesticide chemical which is unsafe within the meaning of Section 408 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C., Sec. 346a).
It bears or contains any food additive which is unsafe within the meaning of Section 409 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C., Sec. 348).
It bears or contains any color additive which is unsafe within the meaning of Section 706 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C., Sec. 376).
A livestock or poultry product which is not otherwise deemed adulterated pursuant to subdivision (b), (c), or (d) shall nevertheless be deemed adulterated if use of the pesticide chemical, food additive, or color additive in, or on, such livestock or poultry product is prohibited by the director in official establishments.
A livestock or poultry product is adulterated if it consists, in whole or in part, of any filthy, putrid, or decomposed substance or is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food.
A livestock or poultry product is adulterated if it has been prepared, packed, or held under unsanitary conditions by which it may have become contaminated with filth, or been rendered injurious to health.
A livestock or poultry product is adulterated if it is, in whole or in part, the product of an animal, including any poultry, which has died otherwise than by slaughter.
A livestock or poultry product is adulterated if its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents of the livestock or poultry product injurious to health.
A livestock or poultry product is adulterated if it has been intentionally subjected to radiation, unless the use of the radiation was in conformity with a regulation or exemption in effect pursuant to Section 409 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C., Sec. 348).
A livestock or poultry product is adulterated in each of the following cases:
Any valuable constituent has been in whole or in part omitted or abstracted from the livestock or poultry product.
Any substance has been substituted, wholly or in part, for any valuable constituent.
Damage or inferiority has been concealed in any manner.
Any substance has been added to the livestock or poultry product, or mixed or packed with it, so as to increase its bulk or weight, or reduce its quality or strength, or make it appear of a better value than it is.
A livestock or poultry product is adulterated if it is margarine containing animal fat and any of the raw material used in it consisted, in whole or in part, of any filthy, putrid, or decomposed substance.
ARTICLE 5. Misbranding [18781. - 18789.]
A livestock or poultry product is misbranded in each of the following cases:
Its labeling is false or misleading in any particular.
It is offered for sale under the name of another food.
It is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word “imitation” and immediately thereafter, the name of the food imitated.
Its container is so made, formed, or filled as to be misleading.
A livestock or poultry product is misbranded unless it bears a label showing all of the following:
The name and place of business of the manufacturer, packer, or distributor.
An accurate statement of the quantity of the product in terms of weight, measure, or numerical count.
The director may permit reasonable variations, exemptions as to small packages and exemptions as to any livestock product not in a container, that conforms to the purposes of this chapter.
A livestock or poultry product is misbranded if any word, statement, or other information required by, or under authority of, this chapter to appear on the label or other labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices, in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
A livestock or poultry product is misbranded if it purports to be, or is represented, as a food for which a definition and standard of identity or composition has been prescribed by the regulations of the director under Section 18731 unless it conforms to such definition and standard, and its label bears the name of the food specified in the definition and standard and, insofar as may be required by such regulations, the common names of optional ingredients, other than spices, flavoring, and coloring, present in such food.
A livestock or poultry product is misbranded if it purports to be, or is represented as, a food for which a standard or standards of fill of container have been prescribed by regulations of the director under this chapter, and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard.
A livestock or poultry product is misbranded if it is not subject to the provisions of Section 18784, unless its label bears the common or usual name of the food, if any, and in case it consists of two or more ingredients, the common or usual name of each such ingredient. The director may, however, permit spices, flavorings, and colorings to be designated as spices, flavorings, and colorings without naming each, and to the extent that compliance with the requirements of Section 18784 are impracticable, or results in deception or unfair competition, by granting exemptions that conform to the purposes of this chapter.
A livestock or poultry product is misbranded if it purports to be, or is represented to be, for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the director, after consultation with the Secretary of Agriculture of the United States, determines is necessary to fully inform purchasers as to its value for such uses.
A livestock or poultry product is misbranded if it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it is so indicated on the label. To the extent that compliance with the requirements of this section is impracticable, the director may establish exemptions that conform to the purposes of this chapter.
A livestock or poultry product is misbranded if it fails to bear, directly upon the livestock or poultry product and on its container, as the director may prescribe, the official inspection legend and establishment number of the establishment where the product was prepared. The director may require such other information as he deems necessary to assure that the product will not have false or misleading labeling and that the public will be informed of the manner of handling required to maintain the livestock or poultry product in a wholesome condition.
ARTICLE 6. Exemptions [18811. - 18814.]
For the purposes of Article 2 (commencing with Section 18691) of this chapter, the director may exempt the operations of any person from inspection or other requirements of this chapter to the extent such operations would be exempt from the corresponding requirements under the Federal Meat Inspection Act or the Federal Poultry Products Inspection Act if they were conducted in interstate commerce or if the state were designated as one in which the federal requirements apply to intrastate commerce by the federal acts.
The director shall exempt from inspection the slaughtering and preparation by any person of any livestock or poultry of his own raising, exclusively for use by him, members of his household, his nonpaying guests, or employees, and may exempt any other operation which the director determines would best be exempted to further the purposes of this chapter, to the extent such exemption conforms to the Federal Meat Inspection Act and the Federal Poultry Products Inspection Act and the regulations thereunder.
The director shall not provide inspection under this chapter at any establishment for the slaughter of livestock or poultry or the preparation of any livestock product or poultry product that is not intended for use as human food. The product, unless naturally inedible by humans, shall be denatured or otherwise identified as prescribed by the director, prior to being offered for sale or transportation in intrastate commerce, to prevent its use as human food, and shall be in compliance with Chapter 5 (commencing with Section 19200) of this part and Chapter 10 (commencing with Section 113025) of Part 6 of Division 104 of the Health and Safety Code.
This chapter shall apply to a retail store only to the same extent as the federal acts and regulations issued thereunder are applicable to retail stores, except as provided in subdivision (b).
No livestock product or poultry product shall be prepared at any such retail store by curing, drying, smoking, or rendering, nor any livestock product of swine by cooking.
ARTICLE 7. Violations [18841. - 18857.]
It is unlawful for any person to slaughter any livestock or poultry, or prepare any livestock or poultry product which is capable of use as human food, at any establishment preparing such article solely for intrastate commerce, except in compliance with the requirements of this chapter.
It is unlawful for any person to sell, transport, offer for sale or transportation, or receive for transportation, in intrastate commerce, any article required to be inspected under this chapter, unless such article has been inspected and passed, or any livestock, poultry, livestock product, or poultry product which is capable of use as human food, which is adulterated or misbranded at the time of such sale, transportation, offer for sale or transportation, or receipt for transportation.
It is unlawful for any person to do, with respect to any livestock, poultry, livestock product, or poultry product which is capable of use as human food, any act while it is being transported in intrastate commerce or held for sale after such transportation, which is intended to cause, or has the effect of causing, it to be adulterated or misbranded.
It is unlawful for any person to sell, transport, offer for sale or transportation, or receive for transportation, in intrastate commerce, or from an official establishment, any slaughtered poultry from which the blood, feathers, feet, head, or viscera have not been removed in accordance with this chapter and regulations promulgated under this chapter.
It is unlawful for any person to violate any provision of the regulations promulgated by the director under this chapter.
It is unlawful for any brand manufacturer, printer, or other person to cast, print, lithograph, or otherwise make any device containing any official mark or simulation thereof, or any label bearing any such mark or simulation, or any form of official certificate or simulation thereof, except as authorized by the director under such conditions as he may prescribe to assure the accomplishments of the purposes of this chapter.
It is unlawful for any person to do any of the following:
Forge any official device, mark, or certificate.
Without authorization from the director to use any official device, mark, or certificate, or simulation thereof, or alter, detach, deface, or destroy any official device, mark, or certificate.
Contrary to the regulations of the director, fail to use, or to detach, deface, or destroy any official device, mark, or certificate.
Knowingly possess, without promptly notifying the director or his representative, any official device or any counterfeit, simulated, forged, or improperly altered official certificate, or any device or label, or any carcass of any animal, including any poultry, or part or product thereof, bearing any counterfeit, simulated, forged, or improperly altered official mark.
Knowingly make any false statement in any shipper’s certificate or other nonofficial or official certificate provided for in the regulations of the director.
Knowingly represent that any article has been inspected and passed, or exempted, under this chapter when, in fact, it has, respectively, not been so inspected and passed, or exempted.
It is unlawful for any person to sell any dressed carcass of any livestock or poultry which is intended for food purposes, or any prepared meat or meat food product or poultry product within the state unless it bears the “inspected and passed” stamp of federal inspection or state inspection applied at the establishment where the animal was slaughtered and at the establishment where the meat or meat food product, or poultry or poultry product was prepared or manufactured.
It is unlawful for any person to sell, transport, offer for sale or transportation, or receive for transportation, in intrastate commerce, any carcass of any horse, mule, or other equine, or any part of the carcass, or any meat or meat food product thereof, unless it is plainly and conspicuously marked, labeled, or otherwise identified as required by regulations of the director to indicate the animal from which it was derived, and is in compliance with Chapter 5 (commencing with Section 19200) of this part and Chapter 10 (commencing with Section 113025) of Part 6 of Division 104 of the Health and Safety Code.
It is unlawful for any person to buy, sell, transport, or offer for sale or transportation, or receive for transportation, in intrastate commerce, any livestock product or poultry product that is not intended for use as human food, unless it is denatured or otherwise identified as required by the regulations of the director or is naturally inedible by humans, and is in compliance with Chapter 5 (commencing with Section 19200) of this part and Chapter 10 (commencing with Section 113025) of Part 6 of Division 104 of the Health and Safety Code.
It is unlawful for any person engaged in the business of buying, selling, or transporting, in intrastate commerce, dead, dying, disabled, or diseased animals, or any parts of the carcasses of any animals that died otherwise than by slaughter to buy, sell, transport, offer for sale or transportation, or receive for transportation, in intrastate commerce, any dead, dying, disabled, or diseased livestock or poultry, or any products of the animal that died otherwise than by slaughter, unless the transaction or transportation, is made in accordance with any regulations the director may prescribe to assure that the animal, or the part or product thereof, will be prevented from being used for human food purposes, and is in compliance with Chapter 5 (commencing with Section 19200) of this part and Chapter 10 (commencing with Section 113025) of Part 6 of Division 104 of the Health and Safety Code.
It is unlawful for any person to give, pay, or offer, directly or indirectly, to any officer or employee of this state authorized to perform any of the duties prescribed by this chapter or by the regulations of the director, any money or other thing of value, with intent to influence such officer or employee in the discharge of any such duty.
It is unlawful for any officer or employee of this state authorized to perform any of the duties prescribed by this chapter to accept any money, gift, or other thing of value from any person, given with intent to influence his official action, or to receive or accept from any person engaged in intrastate commerce in meat food products or poultry products any gift, money, or other thing of value given with any purpose or intent whatsoever.
It is unlawful for any person to forcibly assault, resist, oppose, impede, intimidate, or interfere with any person while engaged in or on account of the performance of his official duties under this chapter.
It is unlawful for any person to neglect or refuse to attend and testify or to answer any lawful inquiry, or to produce documentary evidence, if such evidence is available to him, in obedience to the subpoena or lawful requirement of the director.
It is unlawful for any person to willfully make, or cause to be made, any false entry or statement of fact in any report required to be made under this chapter or to willfully make, or cause to be made, any false entry in any account, record, or memorandum kept by any person subject to this chapter or to willfully neglect or fail to make, or to cause to be made, full, true, and correct entries in such accounts, records, or memoranda, of all facts and transactions appertaining to the business of such person. It is unlawful to willfully remove from the jurisdiction of this state, or willfully mutilate, alter, or by any other means falsify any documentary evidence of any person subject to this chapter or to willfully refuse to submit to the director or to any of his authorized agents, for the purpose of inspection and taking copies, any documentary evidence of any person subject to this chapter, which is in his possession or within his control.
It is unlawful for any person required by this chapter to file any annual or special report to fail so to do within the time fixed by the director for filing the report.
ARTICLE 8. Products in Violation [18871. - 18874.]
Since it cannot be determined with certainty, by any present known method of inspection, whether meat, including any poultry meat, is unwholesome unless the organs and other tissues of an animal are inspected when slaughtered, and as meat and meat food products, and poultry products which are derived from uninspected livestock or poultry may be unfit for human food, the director, except as otherwise provided in this chapter, shall seize and destroy for human food purposes any meat, meat food product, or poultry product that does not bear the “inspected and passed” stamp, brand, mark, or label which is required by this chapter.
Whenever any livestock product or poultry product or any product exempted from the definition of a livestock product and from the definition of a poultry product, or any dead, dying, disabled, or diseased livestock or poultry, is found by any authorized representative of the director upon any premises where it is held for purposes of, during, or after distribution in, intrastate commerce, or is otherwise subject to this chapter and there is reason to believe that any such article is adulterated or misbranded and is capable of use as human food, or that it has not been inspected, in violation of the provisions of this chapter or of the Federal Meat Inspection Act or the Federal Poultry Products Inspection Act or the Federal Food, Drug, and Cosmetic Act, or that such article or animal has been or is intended to be, distributed in violation of any such provisions, it may be detained by such representative for a period not to exceed 20 days, pending action under Section 18873 or notification of any federal authorities having jurisdiction over such article or animal, and shall not be moved by any person from the place at which it is located when so detained, until released by such representative. All official marks may be required by such representative to be removed from such article or animal before it is released unless it appears to the satisfaction of the director that the article or animal is eligible to retain such marks.
Any livestock product or poultry product or any dead, dying, disabled, or diseased livestock or poultry that is being transported in intrastate commerce, or is otherwise subject to this chapter, or is held for sale in this state after such transportation shall be liable to be proceeded against, seized, and condemned, at any time, in any proper court within the jurisdiction of which such article or animal is found, in any of the following cases:
The product is or has been prepared, sold, transported, or otherwise distributed or offered or received for distribution in violation of this chapter.
The product is capable of use as human food and is adulterated or misbranded.
In any other way is in violation of this chapter.
If such article or animal is condemned it shall, after entry of the decree, be disposed of by destruction or sale as the court may direct and if sold the proceeds, less the court costs and fees, and storage and other proper expenses, shall be paid into the State Treasury, but in no event shall the article or animal be sold contrary to the provisions of this chapter, or the Federal Meat Inspection Act or the Federal Poultry Products Inspection Act, or the Federal Food, Drug, and Cosmetic Act. The court may direct that such article or animal be delivered to the owner upon the execution and delivery of a good and sufficient bond upon the condition that the article or animal shall not be sold or otherwise disposed of contrary to the provisions of this chapter, or the laws of the United States, and subject to such supervision by an authorized representative of the director as is deemed necessary to insure compliance with the applicable laws. When a decree of condemnation is entered against the article or animal and it is released under bond, or destroyed, court costs and fees, and storage and other proper expenses shall be awarded against the person, if any, intervening as claimant of such article or animal.
The provisions of Section 18873 shall in no way derogate from authority for condemnation or seizure conferred by other provisions of this chapter, or other laws.
ARTICLE 9. Investigations [18901. - 18908.]
The director may gather and compile information, and investigate the organization, business, conduct, practices, management, and the relation to other persons of any person subject to this chapter engaged in intrastate commerce.
The director may require, by general or special orders, persons subject to this chapter engaged in intrastate commerce, to file with him, in such form as he may prescribe, annual or special, reports or answers in writing to specific questions, furnishing such information as he may require as to the organization, business, conduct, practices, management, and relation to other persons, of the person filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the director may prescribe, and shall be filed with the director within such time as he may prescribe.
For the purpose of this chapter, the director shall at all reasonable times have access to examine and to copy any documentary evidence of any person being investigated or proceeded against, and may require by subpoena the attendance and testimony of witnesses and the production of all documentary evidence of any person relating to any matter under investigation. The director may sign subpoenas and may administer oaths and affirmations, examine witnesses, and receive evidence.
Attendance of witnesses, and the production of documentary evidence, may be required at any designated place of hearing. In case of disobedience to a subpoena the director may invoke the aid of any superior court designated in requiring the attendance and testimony of witnesses and the production of documentary evidence.
The superior court within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, issue an order requiring such person to appear before the director or to produce documentary evidence if so ordered, or to give evidence concerning the matter in question. Failure to obey such order of the court may be punished by such court as a contempt thereof.
The director may order testimony to be taken by deposition in any proceeding or investigation pending under this chapter at any stage of such proceeding or investigation. Such depositions may be taken before any person designated by the director and having power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition, or under his direction and shall then be subscribed by the deponent. Any person may be compelled to appear and depose, and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the director as previously provided.
Witnesses summoned before the director shall be paid the same fees and mileage that are paid witnesses in the superior court of this state, and witnesses whose depositions are taken and the persons taking the same shall be entitled to the same fees as are paid for such services in such courts.
No person shall be excused from attending and testifying, or from producing books, papers, schedules of charges, contracts, agreements, or other documentary evidence before the director or in obedience to the subpoena of the director, whether such subpoena be signed or issued by him or his delegate, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of this chapter, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him or it may tend to incriminate him or it or subject him or it to a penalty or forfeiture. No individual shall be prosecuted or subjected to a penalty or forfeiture for, or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that any individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.
ARTICLE 10. Penalties [18931. - 18935.]
Upon the issuance of an order of the director pursuant to Section 18725, 18728, 18729, or 18730, the operator of the establishment may seek administrative review before the director by filing his written request therefor within 10 days after issuance of the order. Proceedings for such administrative review, except as provided in this section, shall be in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The decision of the director shall be subject to judicial review pursuant to Section 11523 of the Government Code. Any order of the director issued pursuant to Section 18725, 18728, 18729, or 18730, shall remain in force during such administrative and judicial review.
Any person who is found guilty of violating any of the provisions of this chapter or the regulations promulgated under this chapter is subject to imprisonment in a county jail for not more than one year or a fine of not more than one thousand dollars ($1,000), or both such imprisonment and fine, but if the violation is committed after a conviction of such person under this section has become final, or the violation is committed with intent to defraud or mislead, the person shall be subject to imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or a fine of not more than ten thousand dollars ($10,000), or both that imprisonment and fine.
Any person that violates any provision of this chapter, or any regulation that is issued pursuant to it, is liable civilly for a penalty not to exceed five hundred dollars ($500) for each such violation. If the court finds that a violation of this chapter was a serious violation, or that the violation is a second or subsequent violation, the person is civilly liable for a penalty not to exceed fifteen thousand dollars ($15,000) for each violation. Any money that is received pursuant to this section shall be deposited in the Department of Food and Agriculture Fund, and upon appropriation by the Legislature, shall be used for the purposes described in Section 221.
Before an administrative penalty is levied, the person charged with the violation shall be given a written notice of the proposed action, including the nature of the violation and the amount of the proposed penalty, and that person shall have the right to request a hearing. The request shall be made within 20 days after the person receives notice of the proposed action. A notice of the proposed action, which shall be sent by certified mail to the last-known address of the person charged, shall be considered received even if delivery is refused or if the notice is not accepted at that address. At the hearing, the person shall be given an opportunity to review the secretary’s evidence and to present evidence on his or her own behalf.
Any person upon whom an administrative penalty is levied may appeal to the department, within 20 days of the date of receiving notification of the penalty, as follows:
The appeal shall be in writing and signed by the appellant or his or her authorized agent and shall state the grounds for the appeal.
Any party, at the time of filing the appeal or within 10 days thereafter, may present written evidence and a written argument to the secretary.
The secretary may grant oral arguments upon application made at the time written arguments are made.
If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days prior to the date set therefor. This time requirement may be changed upon agreement between the department and the person appealing the penalty.
The secretary shall decide the appeal based on any oral or written arguments, briefs, and evidence received.
The secretary shall render a written decision within 45 days of the date of the appeal, or within 15 days of the date of oral arguments. A copy of the department’s decision shall be delivered or mailed to the appellant.
The secretary may sustain the decision, modify the decision by reducing the amount of the penalty levied, or reverse the decision.
A review of the secretary’s decision may be sought by the person against whom the penalty was levied pursuant to Section 1094.5 of the Code of Civil Procedure.
After completion of the review procedure provided in this section, the secretary may file a certified copy of the secretary’s final decision that directs payment of an administrative penalty and, if applicable, any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered by the clerk in conformity with the decision or order. No fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of a judgment pursuant to this section.
Any money that is received pursuant to this section, shall be deposited in the Department of Food and Agriculture Fund.
Any person who, as principal or agent, employer or employee, adulterates any meat or meat food product or poultry product intended for sale as human food with the product of an animal which has died otherwise than by slaughter or the product of an animal which has not been slaughtered under inspection in accordance with this chapter, shall be guilty of a felony punishable by a fine of not less than ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or both that imprisonment and fine.
In addition to the remedies provided in this chapter, the department may bring an action in superior court and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this chapter or the rules and regulations promulgated under this chapter. Any proceeding under the provisions of this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. The department shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss. The court may require such acts or course of conduct as necessary to effectuate the purposes of this chapter.
Nothing in this chapter shall be construed as requiring the director to report for prosecution or to institute injunction proceedings for any minor violation of this chapter whenever he believes that the public interest will be adquately served by a suitable written notice of warning, and compliance with such notice.
CHAPTER 4.1. California Meat and Poultry Supplemental Inspection Act [18940. - 19040.]
ARTICLE 1. Definitions and Short Title [18940. - 18949.]
This chapter shall be known and may be cited as the California Meat and Poultry Supplemental Inspection Act and supplements the provisions of the California Meat and Poultry Inspection Act, Chapter 4 (commencing with Section 18650).
Unless the context otherwise requires, the definitions contained in Article 1 (commencing with Section 18650) of Chapter 4 govern the construction of this chapter.
“Inspector” means an employee of the department authorized to perform inspection functions under Chapter 4 (commencing with Section 18650) and under this chapter.
“Licensed livestock meat inspector” means a person who is licensed by the department to perform inspection functions under this chapter in custom livestock slaughterhouses.
“Licensed processing inspector” means a person who is licensed by the department to perform inspection functions under this chapter in licensed meat processing establishments.
“Livestock” means any cattle, sheep, swine, and goat, and pursuant to regulations adopted by the Fish and Game Commission, for the purposes of Chapter 4 (commencing with Section 18650) and this chapter, fallow deer (Dama dama) whether alive or dead.
“Livestock product” means any carcass, part of the carcass, meat, or meat food product of any livestock.
“Slaughter” means the stunning, bleeding, eviscerating, skinning, splitting, and preparing of livestock for human consumption.
“Custom livestock slaughterhouse” means a licensed establishment where:
Cattle, sheep, swine, or goats are slaughtered and prepared for the owners of the livestock.
Fallow deer are slaughtered and prepared for transportation or sale, or transportation and sale.
“Meat processing establishment” means a licensed establishment required to be inspected pursuant to Chapter 4 (commencing with Section 18650) where livestock or poultry products are prepared by curing, drying, smoking, or rendering and the products are sold on the premises to household consumers, and a licensed establishment where fallow deer products may be prepared for transportation or sale, or transportation and sale.
“Smoking” means exposing meat or poultry products, for the purpose of food preservation, rather than as a method of flavor enhancement, to an environment of smoke generated from hardwood, hardwood sawdust, corn cobs, or natural or artificial liquid smoke that has been transformed into a true gaseous state by application of direct heat.
“Sanitary” means free from dirt, filth, and contamination and free from any other substance or organisms which are known to be injurious to human health or which would render the product adulterated.
“Establishment” means any business, firm, or facility that is required to be licensed by the director under this chapter.
ARTICLE 2. General Provisions [18950. - 18955.]
The Legislature finds and declares that:
Sausage products and cured and smoked meat products which are processed and sold at retail meat processing establishments and custom slaughtered carcasses are an important source of the food supply in California; and it is essential and in the public interest that the health and welfare of consumers of these products are protected by ensuring that meat, both slaughtered and processed, is wholesome and not adulterated.
Meat processing establishments and custom slaughter establishments exempt from federal inspection have been required to be inspected in California.
There is a public demand for specialty meat food products and there has been an increase in the number of meat processing establishments manufacturing these products.
Specialty meat food products are sold and displayed in meat markets and are difficult to distinguish from United States Department of Agriculture inspected and passed products.
The Legislature further finds and declares that:
A significant number of persons raise their own animals or purchase their animals alive and then have them slaughtered.
Rather than have their animals slaughtered under unsanitary conditions, those persons would prefer to have their animals slaughtered at sanitary slaughter establishments and have an informed determination made as to the fitness of the carcasses and parts for food.
With the reduction in number of United States Department of Agriculture inspected slaughter plants in California, there has been a substantial increase in small custom slaughter houses to serve that need.
The objectives of this chapter are to require sanitation and wholesomeness inspection at licensed custom slaughter establishments and licensed meat processing establishments exempt from federal inspection and to provide a cost-effective program using trained and licensed establishment personnel under department supervision.
No person shall operate an establishment performing any of the functions stated in this chapter unless the establishment is licensed and continues to meet building and sanitation standards required by this chapter and the regulations thereunder.
ARTICLE 3. Regulations [18960. - 18963.]
The director may adopt, by regulation, standards and requirements relating to inspection, sanitation, facilities, equipment, reinspection, preparation, processing, buying, selling, transporting, storing, identification, recordkeeping, registration and labeling, and marking for carrying out the purposes of this chapter.
The director, by regulation, may adopt provisions of the rules and regulations made under federal acts with such changes therein as he or she deems appropriate to make them applicable to operations and transactions subject to this chapter.
The department may adopt, by regulation, provisions to examine applicants for the positions of licensed livestock meat inspector and licensed processing inspector.
The department, in consultation with the State Department of Health Services, shall, on or before December 31, 2001, adopt, by regulations, standards and requirements relating to inspection, sanitation, facilities, equipment, reinspection, preparation, processing, buying, selling, transporting, storing, identification, recordkeeping, registration and labeling, and marking for fallow deer slaughtered and processed under this chapter. The regulations shall provide for the safe and humane handling and transportation of the fallow deer to a state inspected slaughter facility. No custom livestock slaughterhouse or meat processing establishment shall be approved by the department to slaughter or process fallow deer until adoption of these regulations.
ARTICLE 4. Inspection Granting and Withdrawal [18970. - 18977.]
Prior to the issuance of a license to an establishment required to be licensed pursuant to Article 8 (commencing with Section 19010), the establishment shall meet the department’s building and equipment standards.
Building plans and specifications shall be submitted to the director for approval prior to any intended construction or major reconstruction for any establishment licensed pursuant to Article 8 (commencing with Section 19010).
The director shall investigate the sanitary conditions of each establishment required to be licensed pursuant to Article 8 (commencing with Section 19010) and shall withdraw or otherwise refuse to provide inspection services at any establishment where the sanitary conditions are such as to render adulterated or permit adulteration of any livestock product or poultry product which is prepared or handled at such establishment. No such establishment shall be operated without inspection.
The director may inspect, reinspect, or order the reinspection of any livestock or poultry product which is slaughtered, processed, or stored in an establishment licensed pursuant to Article 8 (commencing with Section 19010).
Licensed livestock meat inspectors, licensed processing inspectors, and department inspectors are authorized to supervise the operations of licensed establishments, to order the establishments not to operate until required standards are met, and to cease operations when the standards are violated. These persons are also authorized to require withholding from movement, sale, or the delivery of products that may be unfit, because the products were derived from unfit animals or processed in unsanitary conditions and to require denaturing and condemnation of the unfit products.
The department may immediately withdraw or refuse to provide inspection services to any establishment under this chapter that fails to cease operations, hold any retained product, or destroy any condemned product in accordance with the order of a department inspector or licensed livestock meat inspector or licensed processing inspector. It is unlawful to violate any such order.
The director may order any labeling or containers to be withheld from use if he or she determines that the labeling is false or misleading or the containers are of a misleading size or form.
If an action of a livestock meat inspector, licensed processing inspector, or department inspector in condemning any livestock or poultry product is questioned, appeal by the licensed establishment operator may be made to the immediate supervisor of the inspector and from his or her decision appeal may be made to the Chief of the Meat and Poultry Inspection Branch. The operator shall abide by the decision of the inspector until or unless the decision is modified by the supervisor or the chief.
If slaughtering, carcass preparation, or processing of any meat, meat products, poultry, or poultry products, or training of licensed livestock meat inspectors or licensed processing inspectors is conducted in an establishment licensed under Article 8 (commencing with Section 19010) during hours considered overtime for state employees or on legal holidays, the owner or operator of the establishment, by contract or agreement with the department, shall pay the additional costs for salaries and expenses for persons employed by the department, as determined by the department, to conduct the necessary inspection work or training during the overtime period.
The director may require a deposit to pay for the overtime charges which he or she shall deposit in the General Fund, and may refuse inspection if the deposit is not made in a timely fashion. The director shall withdraw inspection services at any establishment licensed under Article 8 (commencing with Section 19010) that does not pay the overtime charges 15 days after the mailing of an invoice therefor.
ARTICLE 5. Livestock Meat Inspector and Processing Inspector Licenses—General Provisions [18980. - 18983.]
The application fee for a livestock meat inspector’s license or a processing inspector’s license is one hundred dollars ($100). If an applicant for a license does not take the examination within one year after the date of the receipt of the application by the secretary, the application expires. Reexamination requires the payment of an additional application fee.
Each license shall expire on the last day of the calendar year for which it is issued. The fee shall not be prorated.
This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
Application for renewal of a license accompanied by a fee of one hundred dollars ($100) shall be made on or before its expiration. Applicants for renewal of a license who have not paid the renewal fee by the expiration date of the license shall be assessed a twenty-five dollar ($25) penalty. Failure to pay the renewal fee plus the penalty within 90 days of expiration shall cause a revocation of a license.
This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
The department shall conduct periodic training for licensed livestock meat inspectors and licensed processing inspectors to maintain and increase their competence in the performance of their official duties.
Licensed livestock meat inspectors and licensed processing inspectors shall participate in annual training meetings sponsored by the department to maintain and increase their competence in the performance of their official duties. Failure to participate may be a cause to revoke their license.
ARTICLE 6. Livestock Meat Inspector License—Custom Livestock Slaughter [18990. - 18991.]
Each person, before acting as a livestock meat inspector in a livestock custom slaughterhouse, shall apply to the director and shall receive from the director a license after passing an examination and a demonstration that shows the applicant’s ability to understand laws and regulations which pertain to meat inspection and a practical knowledge of all the following:
Conditions which affect adulteration and wholesomeness of livestock and livestock products.
The anatomy of livestock.
Sanitary livestock slaughter and dressing procedures.
Sanitation of the facilities and equipment used in custom livestock slaughterhouses.
Applicants shall not be less than 18 years old.
A licensed livestock meat inspector, in accordance with regulations adopted hereunder, shall conduct antemortem examination of each animal to be slaughtered in a licensed establishment and shall permit the slaughter of apparently healthy animals and withhold from slaughter all animals suspected, as well as those plainly showing evidence, of a disease. Animals so withheld shall be examined by a department employee who shall order the disposition of the animal pursuant to the regulations adopted hereunder.
The licensed livestock meat inspector shall conduct a postmortem examination and make dispositions of carcasses and parts thereof in accordance with regulations adopted hereunder.
A licensed livestock meat inspector shall conduct a sanitation inspection before the establishment commences operations for the day, and make periodic inspections throughout the day.
The licensed livestock meat inspector shall order the establishment not to begin operations or to cease operations at any time that the establishment sanitation fails to meet the requirements of this chapter and the regulations adopted thereunder, or at any time any product is not handled, retained, condemned, or disposed of in violation of this chapter or the regulations thereunder.
Passed carcasses and parts of cattle, sheep, swine, and goat shall be stamped by the licensed livestock meat inspector or under his or her supervision with an approved California identification number.
Passed carcasses and parts of fallow deer slaughtered and prepared for transportation or sale shall be stamped with an approved mark of inspection.
ARTICLE 7. Processing Inspector License—Meat Processing Establishment [19000. - 19002.]
Each person, before acting as a licensed processing inspector in a retail meat processing establishment, shall apply to the department and receive from the department a license after passing an examination and a demonstration that shows the applicant’s ability to understand laws and regulations that pertain to meat inspection and a practical knowledge of all the following:
Conditions that affect adulteration, misbranding, and wholesomeness of livestock and poultry products.
Sanitary meat and poultry processing procedures.
Sanitation of the facilities and the equipment used in retail meat processing establishments.
A licensed processing inspector shall conduct a sanitation inspection before the establishment commences operations for the day, and shall make periodic inspections throughout the day.
The licensed processing inspector shall order the establishment not to begin operations or to cease operations at any time that the establishment sanitation fails to meet the requirements of this chapter and the regulations adopted thereunder, or at any time any product is not handled, retained, condemned, or disposed of in violation of this chapter or the regulations thereunder.
The licensed processing inspector shall direct the application of the mark of inspection as provided by regulations on products that are inspected by him or her and found to be wholesome, not adulterated, and derived from (1) United States Department of Agriculture inspected carcasses, or (2) fallow deer carcasses at custom livestock slaughterhouses.
The department may suspend or revoke the license of a licensed processing inspector for permitting the processing or labeling of products not meeting the requirements provided for in this article.
ARTICLE 8. Licensed Meat Processing and Custom Livestock Slaughter Establishments [19010. - 19017.]
Each person shall, before operating a meat processing establishment or a custom livestock slaughterhouse, file an application accompanied with an application fee, with the secretary for a license to operate the establishment. The application shall be in the form as the secretary may prescribe.
Subject to Section 19011.5, the application fee for a meat processing establishment or a new, previously unlicensed custom livestock slaughterhouse is five hundred dollars ($500) for a license for one year for each establishment that the applicant desires to operate. Each license shall expire on the last day of the calendar year for which it was issued. The fee shall not be prorated.
The fee for a license application submitted upon a change of ownership of an existing, previously licensed custom livestock slaughterhouse shall be based on the number of head of livestock slaughtered by the custom livestock slaughterhouse during the preceding October through September time period, as described in subdivision (a) of Section 19011.
This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
Application for renewal of a license accompanied by a renewal fee shall be made on or before its expiration.
Subject to Section 19011.5, the annual renewal fee for a custom livestock slaughterhouse is:
Five hundred dollars ($500) if the plant slaughtered 1,000 or fewer head of livestock during the preceding October through September time period.
Seven hundred fifty dollars ($750) if the plant slaughtered between 1,000 and 5,000 head of livestock during the preceding October through September time period.
One thousand two hundred dollars ($1,200) if the plant slaughtered over 5,000 head of livestock during the preceding October through September time period.
Subject to Section 19011.5, the annual renewal fee for a meat reprocessing establishment is five hundred dollars ($500).
Applicants for renewal who have not paid the renewal fee by the expiration date of the license shall be assessed a penalty of 10 percent of the unpaid balance. Failure to pay the renewal fee plus the penalty within 90 days of expiration shall cause a revocation of a license.
This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
If a licensee has two or more licenses in effect at the same meat processing establishment, custom livestock slaughterhouse, place of business, or poultry plant, pursuant to Section 19010, 19011, 19240, 19260, 19280, or 24741, the license fee that is the highest amount shall be paid in full and each additional license fee shall be in an amount that is 50 percent of the fee that would otherwise be applicable.
No person shall operate a licensed establishment performing the functions stated in this chapter unless all livestock and livestock products are inspected for wholesomeness and the facilities are inspected for sanitation by a licensed livestock meat inspector or a licensed processing inspector.
No person shall operate a meat processing establishment unless all livestock and poultry products used in processing and to be sold have been inspected by the United States Department of Agriculture, fallow deer products have been inspected at a custom livestock slaughterhouse, or poultry products have been inspected in accordance with the requirements of Chapter 3 (commencing with Section 24951) of Part 1 of Division 12 and the processing of the product is inspected by a licensed processing inspector.
Plant sanitation, sanitary dressing procedures, processing procedures, vehicle equipment, facility standards, and sanitation, including transportation and storage of products, shall follow procedures which may be set forth in regulations or operations manuals adopted by the department.
Livestock carcasses and parts and livestock and poultry products shall not be packed, repacked, cut up, recut, or sold unless each container or each part or each carcass, whichever is applicable, is marked in a manner which is required by this chapter and the regulations thereunder.
Except as provided in paragraph (2), all custom slaughtered livestock carcasses and parts shall be marked in a manner required by the department to identify the inspected premises and that the products are not for sale.
Fallow deer carcasses and parts thereof intended for transportation or sale shall be marked in a manner required by the department to identify the inspected premises and to show that the products have been inspected under this chapter.
The department shall determine, by regulation, the official design of the marks that are required by this chapter.
It is unlawful to do any of the following:
Operate an establishment not licensed by the department.
Operate an establishment that is not clean.
Operate an establishment in a manner or under conditions that are not sanitary.
Operate an establishment that does not meet the sanitary building or equipment standards pursuant to the regulations of this chapter.
Operate an establishment in violation of an order of a licensed livestock meat inspector, licensed processing inspector, or a department inspector.
Dispose of condemned and inedible livestock carcasses or parts of livestock products in violation of this chapter or the regulations thereunder.
Misbrand or mislabel livestock and poultry products.
ARTICLE 9. Exemptions [19020. - 19023.]
This chapter does not apply to any of the following:
Owners who slaughter, on their own premises, livestock of their own raising where the meat is not for sale, but used exclusively by the owners, members of the owner’s household, the owner’s employees, and nonpaying guests.
A mobile slaughter operator who provides services to an owner as specified in subdivision (a) where the slaughter occurs on the owner’s premises and the meat is thereafter transported for the owner to an establishment for further processing.
A mobile slaughter operator who provides services to an owner of livestock and slaughters multiple livestock from multiple owners, if the slaughter occurs on the premises of one of the owners of the livestock or on the premises of the producer, subject to the following conditions:
Before the slaughter, if the livestock slaughtered are cattle, the cattle are inspected pursuant to Section 21051.
After the slaughter, the meat is transported for the owner to an establishment for further processing.
The meat is not for sale, but is used exclusively by the owner, members of the owner’s household, the owner’s employees, and nonpaying guests.
The producer that has mobile slaughter operations conducted on their premises shall register with the department and maintain records pursuant to this chapter.
The mobile slaughter operator shall be licensed as a custom livestock slaughter operation with the department pursuant to this chapter.
The mobile slaughter operator shall be licensed as a livestock meat inspector with the department pursuant to this chapter and shall complete annual training as provided by the Meat, Poultry and Egg Safety Branch of the department.
The mobile slaughter operator licensed with the department shall maintain records pursuant to this chapter and the records shall be made available, upon request, to a department inspector, investigator, or peace officer.
The premises or the mobile slaughter facility where slaughter is conducted shall have an adequate sewer, facilities, and potable water.
The exemption in paragraph (1) shall apply to the slaughter of more than one head of livestock on a single premises in a calendar year.
Slaughter activities conducted, including the proper disposition of inedible materials, pursuant to the exemption in paragraph (1) shall comply with all other applicable state and federal environmental and zoning laws.
For purposes of this article, the following terms shall apply:
“Livestock” means any cattle, sheep, goat, and swine used for human food.
“Producer” means the person who owned and was responsible for feeding and caring for the livestock before its sale and slaughter on the person’s premises.
Persons solely engaged in cutting, wrapping, and otherwise processing farm or custom slaughter livestock or the processing and sale of fresh meats derived from United States Department of Agriculture inspected carcasses, except the curing, smoking, and preparing of cooked or smoked sausages or cooked pork products that are not exempted under subdivision (b) of Section 18814.
Livestock slaughter and meat and poultry processing inspected by the United States Department of Agriculture.
A mobile slaughter operator performing the service of slaughtering livestock pursuant to subdivision (c) of Section 19020 shall be licensed with the department as both of the following:
A custom livestock slaughter operation pursuant to Sections 19010 and 19022 and is subject to Section 19023. The department shall establish a license fee and a renewal fee to cover costs associated with oversight and inspection of mobile slaughter operators. The fees shall not exceed the reasonable regulatory costs of the department and in no event shall be more than five hundred dollars ($500).
The producer of the livestock who conducts multiple slaughter operations on their premise pursuant to subdivision (c) of Section 19020 shall be registered with the department pursuant to Section 19022 and is subject to Section 19023. The one-time registration fee shall not exceed the regulatory costs of the department and in no event shall be more than one hundred dollars ($100).
The producer shall reregister with the department if the producer moves locations or if the operation changes ownership. The reregistration fee shall be the same amount as the registration fee specified in paragraph (1).
A mobile slaughter operator performing the service of slaughtering livestock pursuant to subdivision (c) of Section 19020 shall file an application for a license that shows the names and addresses of the owners of the mobile slaughterer and any other information the secretary may require.
The producer shall file a registration with the department that shows the name and address of every location where the slaughter of livestock will occur.
The registration or license shall be filed with the Meat, Poultry and Egg Safety Branch of the department before a mobile slaughter operator may slaughter livestock pursuant to subdivision (c) of Section 19020.
After notice and hearing, the secretary may cancel the registration of any producer or the license of a mobile slaughter operator operating pursuant to subdivision (c) of Section 19020 for failing to comply with this section or Section 19023.
A mobile slaughter operator that slaughters livestock pursuant to subdivision (c) of Section 19020 shall keep and maintain all of the following records expressly for that purpose for at least one year:
The date of slaughter of all livestock.
The name, address, and telephone number of producer of the livestock that are being slaughtered.
The address or other location identifier of where the slaughter occurred.
The number of each livestock slaughtered at the address on the date of slaughter.
All ear tag numbers and all identification markings, if available, on all livestock slaughtered, and, if no identification number or marking is present, record “no identification number or marking.”
The name, address, and telephone number of the owner for each livestock slaughtered.
The name and address of the facility that each carcass was transported to for processing.
Every producer that produces livestock that are slaughtered by a mobile slaughter operator pursuant to subdivision (c) of Section 19020 shall keep and maintain all of the following records for at least one year:
The name, address, and telephone number of the buyer.
All ear tag numbers and all other identification markings of all livestock.
The price paid for each livestock.
A purchase receipt for each livestock.
The date of purchase of each livestock.
The date of slaughter of each livestock.
All records maintained pursuant to this section shall be available on the demand of any inspector or peace officer.
ARTICLE 10. Violations and Penalties [19030. - 19039.]
The director may, after a hearing conducted pursuant to Section 11346.8 of the Government Code, refuse to issue a license or renew a license and may revoke or suspend any license for any violation of or failure to comply with any provision of this chapter or any of the regulations thereunder. However, if the director finds evidence of willful or repeated violations, he or she may immediately suspend the license pending a final disposition of the matter.
A violation of the provisions of this chapter is a misdemeanor.
Any person that violates any provision of this chapter, or any regulation that is issued pursuant to it, is liable civilly for a penalty in an amount not to exceed five hundred dollars ($500) for each such violation. If the court finds that the violation of this chapter was a serious violation, or that the violation is a second or subsequent violation, the person is liable civilly for a penalty not to exceed fifteen thousand dollars ($15,000) for each such violation.
The Attorney General shall, upon complaint by the director, or may upon his or her own initiative, if after examination of the complaint and evidence he or she believes a violation has occurred, bring an action for civil penalties in the name of the people of this state in any court of competent jurisdiction in this state against any person violating any provision of this chapter.
Before an administrative penalty is levied, the person charged with the violation shall be given a written notice of the proposed action, including the nature of the violation and the amount of the proposed penalty, and that person shall have the right to request a hearing. The request shall be made within 20 days after the person receives notice of the proposed action. A notice of the proposed action, which shall be sent by certified mail to the last-known address of the person charged, shall be considered received even if delivery is refused or if the notice is not accepted at that address. At the hearing, the person shall be given an opportunity to review the department’s evidence and to present evidence on his or her own behalf.
Any person upon whom an administrative penalty is levied may appeal to the secretary, within 20 days of the date of receiving notification of the penalty, as follows:
The appeal shall be in writing and signed by the appellant or his or her authorized agent and shall state the grounds for the appeal.
Any party, at the time of filing the appeal or within 10 days thereafter, may present written evidence and a written argument to the secretary.
The secretary may grant oral arguments upon application made at the time written arguments are made.
If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days prior to the date set therefor. This time requirement may be changed upon agreement between the secretary and the person appealing the penalty.
The secretary shall decide the appeal based on any oral or written arguments, briefs, and evidence received.
The secretary shall render a written decision within 45 days of the date of the appeal, or within 15 days of the date of oral arguments. A copy of the secretary’s decision shall be delivered or mailed to the appellant.
The secretary may sustain the decision, modify the decision by reducing the amount of the penalty levied, or reverse the decision.
A review of the secretary’s decision may be sought by the person against whom the penalty was levied pursuant to Section 1094.5 of the Code of Civil Procedure.
After completion of the review procedure provided in this section, the secretary may file a certified copy of the department’s final decision that directs payment of an administrative penalty and, if applicable, any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered by the clerk in conformity with the decision or order. No fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of a judgment pursuant to this section.
Any money that is received pursuant to this section shall be deposited in the Department of Food and Agriculture Fund.
In addition to the remedies provided in this chapter, the department may bring an action in superior court and the court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this chapter or the rules and regulations promulgated under this chapter. Any proceeding under the provisions of this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. The department shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss. The court may require such acts or course of conduct as necessary to effectuate the purposes of this chapter.
It is unlawful for any person to slaughter any livestock or prepare any such livestock products which are appropriate for use as human food at any custom livestock slaughterhouse or retail processing establishment except in compliance with the requirements of this chapter.
It is unlawful for any person to do with respect to any livestock which is appropriate for use as human food, any act, while it is being transported or held in storage after the transportation, which is intended to cause or has the effect of causing it to be adulterated.
It is unlawful for any person to violate any provision of the regulations promulgated by the director which are applicable to this chapter.
It is unlawful for any person knowingly to represent that an article has been examined by a licensed livestock meat inspector, licensed processing inspector, or department inspector or exempted under this chapter when in fact it has respectively not been so examined or exempted.
It is unlawful for any person to assault, resist, impede, intimidate, or interfere with any person while engaged in the performance of duties under this chapter.
ARTICLE 11. Disposition of Funds [19040. - 19040.]
All fees, charges, and collections collected pursuant to this chapter shall be deposited in the Department of Food and Agriculture Fund.
All fees, charges, and collections collected pursuant to this chapter shall be used for the enforcement of this chapter and shall be for a specific benefit or privilege conferred directly to the payer and such benefit or privilege shall not be provided to those not charged.
Fees shall not exceed the reasonable costs associated with issuing the license or permit, performing investigations, inspections, and audits, enforcing provisions pursuant to the license or permit, and administrative enforcement and adjudication thereof.
CHAPTER 4.5. Holding, Segregation, and Disposal of Animals Unfit for Human Food Purposes [19051. - 19056.]
If the director determines that any animal raised for the production of any food product is or may be carrying in its body pesticides, poisons, or other deleterious substances, including, but not limited to, veterinary biologicals, antibiotics, pesticides, and heavy metal poisons which may render any food product from such animal injurious to human health, he may order the animal held on the premises where it is found or elsewhere until he has determined that the animal may safely be released for human food purposes. The director may require the segregation of animals held under such an order.
If the director finds that any animal under a hold order pursuant to this chapter cannot, after treatment or care, be safely used for human food purposes, or contains in its body any such deleterious substance in excess of a tolerance established by the director, the director may after notice to the owner or person in possession of the animal, require that the animal be marked or branded or otherwise disposed of in such a manner as to preclude its use for human food. If the animal is fit for use as pet food the director may permit the animal to be so used.
It is unlawful for any person to fail to comply with any order of the director issued pursuant to this chapter.
The director may bring an action in the superior court of any county in which animals subject to a hold order are located to require enforcement of such order. The director shall not be required to allege an inadequate remedy at law or irreparable damage. The court may enjoin violation of the director’s orders and require such other course of action as may be necessary to assure compliance.
The owner of any animal for which a hold or disposal order is issued pursuant to this chapter may seek administrative review of such order in the same manner as is provided in Section 18931. The proceedings for such review shall be as provided in Section 18931. Any hold order under this chapter shall remain in force during such administrative review.
CHAPTER 5. Horsemeat and Pet Food [19200. - 19447.]
ARTICLE 1. Definitions [19200. - 19216.]
Unless the context otherwise requires, the definitions of this article govern the construction of this chapter.
“Animals” means burros, cattle, goats, horses, mules, sheep, swine and other large domesticated animals and poultry.
“Bureau” means Bureau of Meat and Poultry Inspection of the Department of Food and Agriculture.
“Canned pet food” means any commercially sterile food product packed in hermetically sealed containers and composed of either edible fresh or frozen meat or horsemeat, meat or horsemeat byproducts or fish, or a combination thereof. It may contain cereals, edible accessory food products or edible mineral- or vitamin-containing substances.
“Collection center” means a receiving area for the temporary storage of animal carcasses, packinghouse waste, or other products before transportation to a licensed rendering plant or pet food processor.
“Dead animal hauler” means any person or company that engages in the business of transporting the carcasses of dead animals.
“Edible” means food fit to be eaten by dogs, cats, or other carnivora.
“Horsemeat byproducts” means the parts other than horsemeat which have been derived from horses, mules or burros, or any combination of them.
“Horsemeat” means the uncooked muscle tissue of horse, mule or burro, or any combination thereof, which is skeletal, with or without the accompanying and overlaying fat, and the portion of sinews, nerves and blood vessels which normally accompany the muscle tissue and which are not separated from it in the process of dressing.
Except where otherwise provided herein, “horsemeat” shall include horsemeat and the horse byproducts as such terms are defined in Sections 19207 and 19208.
“Inspected horsemeat” means horsemeat produced in a slaughtering establishment under federal, state or state-approved municipal inspection.
“Meat” means the uncooked muscle tissue of a cow, goat, sheep, swine, or poultry which is skeletal, with or without the accompanying and overlaying fat, and the portion of sinews, nerves and blood vessels which normally accompany the muscle tissue and which are not separated from it in the process of dressing.
“Meat byproducts” means the edible parts other than meat which have been derived from cattle, goats, sheep, swine, or poultry or any combination of them.
“Pet” means any household animal including but not limited to cats or dogs and other carnivora, whether or not for public exhibition.
“Processed pet food” means a food for pets which has been prepared by heating, drying, semidrying, canning, or by a method of treatment prescribed by regulation of the State Department of Public Health. The term includes special diet, health foods, supplements, treats and candy for pets, but does not include fresh or frozen pet foods subject to the control of the California Department of Agriculture.
“Rendering” means all recycling, processing, and conversion of animal and fish materials and carcasses and inedible kitchen grease into fats, oils, proteins, and other products that are used in the animal, poultry, and pet food industries and other industries.
“Slaughter” means to kill live animals and prepare for consumption for pet food purposes.
“Transporter of inedible kitchen grease” means any person who transports inedible kitchen grease.
“Inedible kitchen grease” means any fat or used cooking greases and oils obtained from any source.
ARTICLE 1.5. Rendering Industry Advisory Board [19218. - 19218.7.]
There is in state government a Rendering Industry Advisory Board consisting of seven persons, appointed by the secretary, six of whom are licensed under this chapter and are subject to payment of the rendering program licensing fees in accordance with this chapter, including, but not limited to, licensed renderers, dead haulers, and transporters of inedible kitchen grease. The secretary shall appoint one other member to the board who shall be a public member. Any vacancy in the office of a public member of the board shall be filled by appointment by the secretary.
At least one of the six licensee members appointed by the secretary pursuant to subdivision (a) shall have experience and expertise in alternative uses of rendered products, including, but not limited to, use as energy, alternative fuels, lubricants, and other nontraditional uses.
The public member appointed by the secretary pursuant to subdivision (a) shall have experience and expertise in one or more of the following:
Water quality.
Publicly owned treatment works and water infrastructure.
Law enforcement.
The members of the board shall receive no salary, but are entitled to payment of necessary traveling expenses in accordance with the Department of Human Resources rules and regulations. These expenses shall be paid out of appropriations made to the department for that purpose.
The term of office of the members of the board is three years. When the board is first appointed, three members shall be appointed for three years, two members for two years, and two members for one year. Thereafter, appointments shall be for full three-year terms. Vacancies shall be filled for an unexpired term.
The board shall elect a chairperson, and from time to time any other officers as it may deem advisable.
The board shall meet at the call of its chairperson or the secretary or at the request of any three members of the board. The board shall meet at least once a year.
A quorum of the board shall be five members. A vote of the majority of the members present at a meeting at which there is a quorum shall constitute an act of the board.
No member, or any employee or agent thereof, shall be personally liable for the actions of the board or responsible individually in any way for errors in judgment, mistakes, or other acts, either by commission or omission, except for his or her own individual acts of dishonesty or crime.
The board shall advise the secretary and may make recommendations to the secretary concerning all of the following:
Adoption, modification, and repeal of regulations and procedures.
Procedures for employment, training, supervision, and compensation of inspectors and other personnel.
Rate and collection of license fees and penalties related thereto.
Acquisition and use of equipment.
Posting and noticing changes in bylaws, general procedures, or orders.
All matters pertaining to this chapter, including, but not limited to, the inspection and enforcement program, annual budget, necessary fees to provide adequate services, and regulations required to accomplish the purposes of the chapter.
The board shall keep accurate books and records of its activities, which shall be subject to annual audit by an auditing firm approved by the secretary. The audit shall be made a part of an annual report submitted to all persons licensed under this chapter. The books and records shall be available for audit during regular business hours upon request of the secretary.
Persons subject to this chapter shall not have access to any information in the possession of any entity or entities established or designated pursuant to this chapter that would disclose proprietary information regarding any other person subject to this article, including, but not limited to, material test results, individual fee or license payments, rendering process, or formula information.
The secretary shall adopt regulations to be used by the board to administer this article.
In adopting regulations and procedures, the secretary shall accept the recommendations of the board if he or she finds them to be practicable and in the interest of the rendering industry and the public.
The secretary shall, within 30 days of receiving a recommendation from the board in accordance with this article, provide the board with notice of the acceptance of the recommendation or with a written statement of the reasons for denial if he or she does not accept the recommendation.
ARTICLE 2. Licenses [19220. - 19229.]
A license granted under this chapter shall expire on December 31 of each year.
The application for a license or a renewal of a license shall be accompanied by the license fee.
A previous violation of any provision of this chapter is good and sufficient cause for denial of a license.
A proceeding for refusal or revocation of a license shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1, Division 3, Title 2 of the Government Code. The director shall have all the powers granted in that chapter.
Subject to Section 19229, the annual fee for each license held is one hundred dollars ($100).
A separate license shall be required for each place of business.
In addition to the license fee required pursuant to Section 19225, the department may charge each licensed renderer and collection center an additional fee necessary to cover the reasonable costs of administering Article 6 (commencing with Section 19300) and Article 6.5 (commencing with Section 19310). The additional fees authorized to be imposed by this section shall not exceed ten thousand dollars ($10,000) per year per each licensed rendering plant or collection center.
The secretary may, based upon the findings and recommendation of the Rendering Industry Advisory Board, determine the additional fee amounts necessary to provide the revenue needed to carry out the provisions of this chapter specified in subdivision (a). The secretary and the Rendering Industry Advisory Board shall not exceed the maximum amount for additional fees authorized pursuant to subdivision (a). Setting the additional fee or fees shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The secretary shall only have the authority to raise an additional fee pursuant to this section upon recommendation of the Rendering Industry Advisory Board.
The secretary shall fix the additional fee amounts established pursuant to this section and may fix different fees for renderers and collection centers. If an additional fee is imposed on licensed renderers pursuant to subdivision (a) and an additional fee is imposed on registered transporters pursuant to subdivision (a) of Section 19315, only one additional fee may be imposed on a person or firm that is both licensed as a renderer pursuant to Article 6 (commencing with Section 19300) and registered as a transporter of inedible kitchen grease pursuant to Article 6.5 (commencing with Section 19310), which fee shall be the higher of the two fees.
If the additional fee established pursuant to this section is not paid within one calendar month of the date it is due, a penalty shall be imposed in the amount of 10 percent per annum on the amount of the unpaid fee.
This section shall become inoperative on July 1, 2030, and, as of January 1, 2031, is repealed, unless a later enacted statute that becomes operative on or before January 1, 2031, deletes or extends the dates on which it becomes inoperative and is repealed.
All fees, charges, and collections collected pursuant to Sections 19225, 19227, 19312, and 19315 shall be paid into the State Treasury monthly to the credit of the Department of Food and Agriculture Fund. All fees, charges, and collections collected pursuant to Sections 19225, 19227, 19312, and 19315 shall be used for the enforcement of this chapter.
If a licensee has two or more licenses in effect at the same meat processing establishment, custom livestock slaughterhouse, place of business, or poultry plant, pursuant to Section 19010, 19011, 19240, 19260, 19280, or 24741, the license fee that is the highest amount shall be paid in full and each additional license fee shall be in an amount that is 50 percent of the fee that would otherwise be applicable.
ARTICLE 3. Pet Food and Horse Slaughterers [19240. - 19242.]
Every person engaged in the business of slaughtering animals for pet food or horses for human food purposes shall first obtain a license pursuant to this chapter.
The application shall be in a form which is prescribed by the director and shall contain the following:
The name and address of the applicant.
Where each slaughterhouse in which he intends to operate is located and to whom it belongs.
The experience the applicant has in slaughtering.
Such other information as the director may, by regulation, require.
The secretary, after notice and hearing, shall refuse to issue a license unless he or she finds that the applicant satisfies all of the following:
Is qualified to operate a slaughterhouse.
Is properly equipped to engage in the business of slaughtering in a clean and sanitary manner.
Has never been convicted of a felony involving adulterated or misbranded food.
ARTICLE 4. Pet Food Processor [19260. - 19262.]
Every person engaged in the business of processing, packing, or preparing fresh or frozen horsemeat or any other meat product for use as pet food of any kind, shall first obtain a license pursuant to this chapter, except those persons licensed pursuant to Chapter 10 (commencing with Section 113025) of Part 6 of Division 104 of the Health and Safety Code.
The application for a license shall be in a form which is prescribed by the secretary and shall contain the following:
The name and address of the applicant.
Where each processing plant in which he intends to operate is located and to whom it belongs.
The experience the applicant has in processing.
What interest or control the applicant has in any dead animal hauler, rendering plant, or collection center.
Any other information that the secretary may, by regulation, require.
The secretary, after notice and hearing, shall refuse to issue a license unless he or she finds that the applicant satisfies all of the following:
Is qualified to operate a processing plant.
Is properly equipped to engage in the business of processing in a clean and sanitary manner.
Has never been convicted of a felony involving adulterated or misbranded food.
ARTICLE 5. Horsemeat and Pet Food Importer [19280. - 19282.]
Every person who engages in the business of importing (distributing or jobbing) fresh or frozen meat, meat byproducts, horsemeat byproducts, poultry meat, or poultry meat byproducts for pet food or horsemeat for human food purposes shall first obtain a license pursuant to this chapter.
The application shall be in a form which is prescribed by the director and shall contain the following:
The name and address of the applicant.
The application for license shall be accompanied by a certificate issued by a federal, state, or local health agency certifying that the slaughtering or processing facilities of the slaughterer or processor of the horsemeat or pet food are operated under sanitary conditions and that the meat, meat byproducts, horsemeat, horsemeat byproducts, poultry meat, or poultry meat byproducts processed or fresh or frozen pet food to be imported conforms to the requirements of this act or the regulations adopted hereunder.
Such other information as the director may, by regulation, require.
The director shall issue a license unless he finds, after notice and hearing, that the applicant has been convicted of a felony involving adulterated or misbranded food or has violated any of the provisions of this chapter or regulations promulgated thereunder.
ARTICLE 6. Renderers [19300. - 19306.]
Every person engaged in the business of rendering shall obtain a license from the department for each rendering plant.
Every person engaged in the business of operating a collection center shall obtain a license from the department for each collection center operated.
The application for a license shall be in a form which is prescribed by the director and shall contain the following:
The name and address of the applicant.
Where each rendering plant or collection center which he intends to operate is located.
The experience the applicant has in rendering.
Such other information as the director may by regulation require.
The department may refuse to issue a license if the department finds that the applicant does not meet one or more of the following requirements:
The applicant is properly equipped to engage in the business of rendering or operating a collection center. For these purposes, the department shall consult with the rendering industry to determine the equipment that shall be required.
The applicant has never been convicted of a felony involving adulterated or misbranded food.
The applicant has not violated this article or Article 6.5 (commencing with Section 19310), or any regulations adopted to implement those provisions.
A person to whom the department refuses to issue a license may appeal to the department within 20 days of the date of receiving notification of the refusal, in the following manner:
The appeal shall be in writing and signed by the appellant or his or her authorized agent and shall state the grounds for the appeal.
A party, at the time of filing the appeal, or within 10 days after filing the appeal, may present written evidence and a written argument to the department.
The department may grant oral arguments upon application made at the time written arguments are made.
If an application to present an oral argument is granted, the department shall give written notice of the time and place for the oral argument at least 10 days prior to the date set for the oral argument. This time requirement may be altered by an agreement between the department and the person appealing the refusal to issue the license.
The department shall decide the appeal on any oral or written arguments, briefs, and evidence that the department receives.
The department shall render a written decision within 45 days of the date of appeal, or within 15 days of the date of oral arguments. A copy of the department’s decision shall be delivered or mailed to the appellant.
The department may sustain the decision to refuse to issue a license or reverse that decision.
The appellant may seek a review of the decision of the department pursuant to Section 1094.5 of the Code of Civil Procedure.
In addition to any other records required to be kept pursuant to this chapter, every licensed renderer shall record and keep for 2 years, in connection with the receipt of kitchen grease which is not intended for human food, all of the following information:
The name, address, and registration number of every transporter of inedible kitchen grease who has delivered that material to the renderer.
The total amount of inedible kitchen grease purchased in each transaction.
The date of each transaction.
All records required to be retained pursuant to this chapter shall be maintained for two years at the regular place of business of every renderer and collection center operator licensed pursuant to this article and every transporter registered pursuant to Article 6.5 (commencing with Section 19310). Those records shall be exhibited on demand to any peace officer or authorized employee of the Department of the California Highway Patrol and the Department of Food and Agriculture.
Any peace officer of this state, or any employee of the department, during normal business hours, may inspect any premises maintained by a renderer or collection center operator licensed pursuant to this article or a transporter registered pursuant to Article 6.5 (commencing with Section 19310), and any inedible kitchen grease located on the premises, for the purpose of determining whether that renderer, collection center operator, or transporter is complying with the record maintenance requirements of this article.
The department may suspend or revoke a renderer license or collection center license at any time, if it finds any of the following has occurred:
The licensee has sold or offered for sale to an unlicensed person, any inedible kitchen grease.
The licensee has stolen, misappropriated, contaminated, or damaged inedible kitchen grease or containers of inedible kitchen grease.
The licensee has violated any provision of this article or any regulations adopted to implement this article.
The licensee has taken possession of inedible kitchen grease from an unregistered transporter or has knowingly taken possession of inedible kitchen grease that has been stolen.
The licensee may appeal any suspension or revocation decision to the department within 20 days of the date of receiving notification of the suspension or revocation, pursuant to the following procedure:
The appeal shall be in writing and signed by the appellant or his or her authorized agent and shall state the grounds for the appeal.
A party, at the time of filing the appeal, or within 10 days after filing the appeal, may present written evidence and a written argument to the department.
The department may grant oral arguments upon application made at the time written arguments are made.
If an application to present an oral argument is granted, the department shall give written notice of the time and place for the oral argument at least 10 days prior to the date set for an oral argument. This time requirement may be altered by an agreement between the department and the person appealing the suspension or revocation of the license.
The department shall decide the appeal on any oral or written arguments, briefs, and evidence that the department receives.
The department shall render a written decision within 45 days of the date of appeal, or within 15 days of the date of oral arguments. A copy of the department’s decision shall be delivered or mailed to the appellant.
The department may sustain the suspension or revocation decision or reverse that decision.
The appellant may seek a review of the decision of the department pursuant to Section 1094.5 of the Code of Civil Procedure.
Any renderer or collection center operator licensed pursuant to this article or transporter registered pursuant to Article 6.5 (commencing with Section 19310) who fails in any respect to keep the written records required by this article, or to set out in that written record any matter required by this article to be set out in the record, is guilty of a misdemeanor.
Every renderer, collection center operator, or transporter who refuses, upon demand of any peace officer or authorized employee of the Department of the California Highway Patrol and the Department of Food and Agriculture, to exhibit any written record required by this article, or who destroys that record within two years after making the final entry of any information required by this article, is guilty of a misdemeanor.
Any violation of subdivision (a) or (b) is punishable as follows:
For a first offense, by a fine of not less than one thousand dollars ($1,000) or by imprisonment in a county jail for not more than 30 days, or by both the fine and imprisonment.
For a second offense within a period of one year, by a fine of not less than five thousand dollars ($5,000) or by imprisonment in a county jail for not more than 30 days, or by both the fine and imprisonment. In addition to any other punishment imposed pursuant to this paragraph, the court may order the defendant to stop engaging in the business as a renderer, collection center operator, or transporter for a period not to exceed 30 days.
For a third or any subsequent offense within a period of two years, by a fine of not less than ten thousand dollars ($10,000) or by imprisonment in a county jail for not more than six months, or by both the fine and imprisonment. In addition to any other sentence imposed pursuant to this paragraph, the court shall order the defendant to stop engaging in the business as a renderer, collection center operator, or transporter for a period of 30 days.
ARTICLE 6.5. Transporters of Inedible Kitchen Grease [19310. - 19317.]
It is unlawful for any person or entity to engage in the transportation of inedible kitchen grease without being registered with the department and without being in possession of a valid registration certificate issued by the department.
Each registration shall expire on December 31st each year.
The department shall require, as a condition of registration, that the applicant demonstrate the ability to respond to damages resulting from the transportation of inedible kitchen grease.
The damages to be covered include public liability, which shall include, but not be limited to, liability for personal injury and property damage.
The ability to respond to damages shall be demonstrated by providing proof of a policy of insurance or surety bond for that purpose in an amount not less than two million dollars ($2,000,000), except that the required amount shall be not less that one million dollars ($1,000,000) if the applicant operates only one vehicle and the vehicle has a gross vehicle weight rating of not more than 10,000 pounds.
This subdivision shall not preempt a local ordinance or rule that is more stringent than the provisions of this section.
It is unlawful for any person who is not a registered transporter of inedible kitchen grease to transport that product from any place within this state to any place outside the borders of this state.
Any person registered as a transporter of inedible kitchen grease may deliver any inedible kitchen grease to a licensed renderer or collection center for processing or recycling into usable products. As used in this section, “usable products” includes, but is not limited to, biofuels, lubricants, and animal feed, provided the uses for animal feed are permitted by the rules and regulations adopted by the United States Food and Drug Administration.
Any renderer who operates vehicles for the purpose of collecting inedible kitchen grease shall register as a transporter of inedible kitchen grease and otherwise comply with this article.
Registration shall be made with the department and shall include all of the following:
The applicant’s name and address.
A description of the operations to be performed by the applicant.
The vehicles to be used in the transportation.
A registration fee not to exceed two hundred fifty dollars ($250).
A list of the names of the drivers employed by the transporter who transport inedible kitchen grease subject to this article and their drivers’ license numbers.
Any other information that may be required by the department.
Any renderer or collection center that registers pursuant to this article is not required to pay the fee prescribed in this section.
The department may refuse to issue an original or renewal registration certificate to an applicant for either of the following reasons:
The existence of the grounds specified in subdivisions (a) to (e), inclusive, of Section 19314.
A failure to pay, in full by the established due date, any penalty levied by the department for a previous violation of this article or Article 6 (commencing with Section 19300).
The department may reverse a decision to refuse to register the applicant, upon a finding of good cause to do so.
The department shall adopt regulations that specify the maximum time period for which a refusal of registrations may be imposed, based on the severity or the number of violations that are the basis of the department’s action. The time period for the refusal of registration shall not exceed three years from the date the refusal of registration is imposed.
Every vehicle used in the transportation of inedible kitchen grease shall conspicuously display the name of the owner of the vehicle in letters not less than two inches high.
In addition to any other records required to be kept pursuant to this chapter, every transporter of inedible kitchen grease shall record and maintain for two years all of the following:
The name and address of each location from which the transporter obtained the inedible kitchen grease.
The quantity of material received from each location.
The date on which the inedible kitchen grease was obtained from each location.
It is unlawful for any person to steal, misappropriate, contaminate, or damage inedible kitchen grease, or containers thereof.
A registered transporter or any other person shall not take possession of inedible kitchen grease from an unregistered transporter, an unlicensed collection center, or an unlicensed renderer, or knowingly take possession of stolen inedible kitchen grease.
The department may suspend or revoke a registration certificate, at any time, if it finds any of the following has occurred:
The registrant has sold or offered for sale to an unlicensed person, any inedible kitchen grease.
The registrant has stolen, misappropriated, contaminated, or damaged inedible kitchen grease or containers of inedible kitchen grease.
The registrant has violated this article or any regulations adopted to implement this article.
The registrant has taken possession of inedible kitchen grease from an unregistered transporter or has knowingly taken possession of inedible kitchen grease that has been stolen.
The registrant has been found to have engaged in, or aided and abetted another person or entity in the commission of, any violation of a statute, regulation, or order relating to the transportation or disposal of inedible kitchen grease, including a violation of the federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code), Section 5650 of the Fish and Game Code, commercial vehicle weight limits, or commercial vehicle hours of service.
For purposes of this section, “registrant” includes any business entity, trustee, officer, director, partner, person, or other entity holding more than 5 percent equity, ownership, or debt liability in the registered entity engaged in the transportation of inedible kitchen grease.
The registrant may appeal the suspension or revocation decision of the department.
The department shall establish procedures for the appeals process, to include a noticed hearing.
The department may reverse a suspension or revocation upon a finding of good cause to do so.
The department shall adopt regulations that specify the maximum time period during which a suspension or revocation of a registration certificate may be imposed, based on the severity or the number of violations that are the basis of the department’s action. The time period for the suspension or revocation of the registration certificate shall not exceed three years from the date the suspension or revocation of the registration certificate is imposed.
Except as provided in subdivision (c), in addition to the registration fee required by Section 19312, the department may charge a fee necessary to cover the costs of administering this article. Any additional fee charged pursuant to this section shall not exceed five hundred dollars ($500) per year per vehicle that is operated to transport kitchen grease, and shall not exceed ten thousand dollars ($10,000) per year per registered transporter.
The secretary may, based upon the findings and recommendation of the Rendering Industry Advisory Board, determine the specific fee per vehicle necessary to provide the revenue needed to carry out the provisions of this article. The secretary and the Rendering Industry Advisory Board shall not exceed the maximum fee amounts established by this section. Setting the fee amounts authorized pursuant to subdivision (a) shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The secretary shall only have the authority to raise an additional fee pursuant to this section upon recommendation of the Rendering Industry Advisory Board.
An individual registered pursuant to this article who transports inedible kitchen grease for the individual’s own personal, noncommercial use as an alternative fuel is exempt from 75 percent of the fee charged pursuant to subdivision (a), and shall meet all of the following requirements:
The individual shall meet all other requirements of this article.
The individual shall not transport more than 55 gallons of inedible kitchen grease per load for that purpose, and shall have no more than 165 gallons of inedible kitchen grease in the individual’s possession or control at any time.
The individual shall not take any inedible kitchen grease from a container owned by another registered transporter of inedible kitchen grease or from an inedible kitchen grease provider under contract with a registered transporter of inedible kitchen grease or from a container owned by a renderer or collection center.
The individual shall have a document in the individual’s possession while transporting inedible kitchen grease signed by the responsible party providing the inedible kitchen grease to the individual at the source of the inedible kitchen grease that provides permission for the inedible kitchen grease to be removed from that site.
The individual shall specify where the inedible kitchen grease is stored and processed as an alternative fuel, if that address is different from the address included on the registration form for that individual pursuant to Section 19312.
The individual shall not sell, barter, or trade any inedible kitchen grease.
The secretary shall fix the additional fees established pursuant to this section and may fix different fees for transporters of inedible kitchen grease and collection centers, and for transporters of interceptor grease. If an additional fee is imposed on licensed renderers pursuant to subdivision (a) of Section 19227 and an additional fee is imposed on registered transporters pursuant to subdivision (a) of this section, only one additional fee may be imposed on a person or firm that is both licensed as a renderer pursuant to Article 6 (commencing with Section 19300) and registered as a transporter of inedible kitchen grease pursuant to this article, which fee shall be the higher of the two fees.
If the additional fee established pursuant to this section is not paid within one calendar month of the date it is due, a penalty shall be imposed in the amount of 10 percent per annum on the amount of the unpaid fee.
For purposes of this section, “interceptor grease” means inedible kitchen grease that is principally derived from food preparation, processing, or waste, and that is removed from a grease trap or grease interceptor.
This section shall become inoperative on July 1, 2030, and, as of January 1, 2031, is repealed, unless a later enacted statute, which becomes effective on or before January 1, 2031, deletes or extends the dates on which it becomes inoperative and is repealed.
It is the purpose of this article to prevent the sale and transfer of illegally obtained inedible kitchen grease, to protect the environment, to reduce blockages of public sewer systems, and to prevent the improper and illegal transportation and disposal of inedible kitchen grease.
The department is authorized to establish a system for documenting and tracking the transportation of inedible kitchen grease in order to ensure the proper disposal or recycling of that material.
A registered transporter of inedible kitchen grease shall, whenever any contract for the transportation of inedible kitchen grease under which that transporter provides transportation services is terminated or expires, notify the county health officer for the county in which the inedible kitchen grease was collected of the termination or expiration of the contract and that the registered transporter is no longer transporting inedible kitchen grease pursuant to that contract.
ARTICLE 7. Dead Animal Haulers [19320. - 19322.]
All persons engaged in the business of hauling of dead cattle, sheep, swine, goats, horses or other large domesticated animals or parts of the carcasses of any animal that died otherwise than by slaughter shall be licensed by the department.
The application for a license shall be in a form which is prescribed by the director and shall contain the following:
The name and address of the applicant.
All vehicles that are to be registered pursuant to Section 19354.
Such other information as the director may by regulation require.
The secretary, after notice and hearing, may refuse to issue a license unless he finds that the applicant:
Is properly equipped to engage in the business of dead animal hauling.
Has never been convicted of a felony involving adulterated or misbranded food.
Demonstrates character, responsibility, and good faith suitable for carrying on the business to be licensed.
ARTICLE 8. General Provisions [19340. - 19358.]
No slaughterer shall own or control directly or indirectly, through stock ownership or control or otherwise, by himself or through his agents or employees, any interest in a person or company licensed to haul dead animals by Section 19320 unless his slaughterhouse is under state or federal inspection.
No slaughterer shall pick up or receive any dead animal at his slaughterhouse except those which have died en route and such animals shall be transported directly and without delay to a licensed rendering establishment, however apparently healthy animals transported by a person other than a dead animal hauler, found to have just expired on arrival due to injuries during transportation may be immediately slaughtered under conditions specified by the secretary which will conform to the purposes of this chapter.
Every establishment where animals are slaughtered for pet food, or where fresh or frozen pet food is processed or prepared shall be maintained and operated in a clean and sanitary manner.
All fresh or frozen meat, meat byproducts, horsemeat, and horsemeat byproducts sold or offered for sale to the public as pet food shall conform to the standards of this chapter or regulations promulgated by the director.
Any carcasses or parts or products of animals which are not intended for use as human food shall prior to their being offered for sale or transportation, be denatured or otherwise identified as prescribed by regulations of the director to prevent their use as human food. No person shall buy, sell, transport, or offer for sale or transportation or receive for transportation any carcasses, parts thereof, meat or meat food product of any such animals which are not intended for use as human food unless they are denatured or otherwise identified as required by the regulations of the director.
The Legislature finds that the use in pet food of animals that died from reasons other than slaughtering and pet food prepared from diseased animals or not prepared under sanitary conditions creates a public health hazard to the citizens and animals of this state.
Unless a waiver is granted by the State Veterinarian in conjunction with implementation of Section 9562 or a declaration of a state of emergency or local emergency, as defined in subdivisions (b) and (c) of Section 8558 of the Government Code, pursuant to the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code), no dead animal hauler or any other person shall transport any dead animal to any place, other than to a licensed rendering plant, a licensed collection center, an animal disease diagnostic laboratory acceptable to the department, the nearest crematory, or to a destination in another state that has been approved for that purpose by the appropriate authorities in that state.
The secretary may issue a master or individual permit to a licensed renderer, collection center, or dead animal hauler for the purpose of authorizing transport of a dead animal to an appropriately permitted landfill under either of the following circumstances:
During a proclaimed state of emergency or local emergency, as defined in subdivisions (b) and (c) of Section 8558 of the Government Code.
When the licensed hauler has certification from a licensed renderer, that the licensed renderer cannot process the dead animal due to operational conditions or legal or regulatory requirements or constraints. The certification shall be in a form approved by the department and, for purposes of this paragraph, “licensed hauler” shall include licensed collection centers and renderers.
Nothing in this section shall be interpreted to conflict with any state or federal environmental or zoning law, or to prohibit an owner of a live animal from burying the animal on the owner’s property after the animal dies if the burial is within three miles of where the animal died.
Subdivision (a) does not apply to the Department of Transportation or to local agencies having jurisdiction over a road or highway when engaged in removing animal carcasses from the road or highway.
The State Veterinarian is authorized to approve temporary research projects for the purpose of determining whether alternative methods of animal tissue disposal are capable of destroying organisms that cause disease and can be used effectively to protect public health and agricultural animals. Temporary projects shall not be approved for a period longer than 24 months.
Notwithstanding Section 19348 and regulations adopted by the Department of Resources Recycling and Recovery pursuant to Section 43020 of the Public Resources Code, including, but not limited to, Section 17855.2 of Title 14 of the California Code of Regulations, any part of a livestock carcass resulting from a routine livestock mortality event or on-farm processing may be composted if all of the following requirements are met:
The composting of the carcass is conducted in accordance with best management practices for livestock composting adopted by the secretary in collaboration with the Department of Resources Recycling and Recovery and the State Water Resources Control Board. The best management practices shall include, but not be limited to, all of the following specifications:
Protection protocols for groundwater.
Protection of public health and food supply.
Proper management of compost piles.
Collaboration procedures with local enforcement agencies.
Enforcement and penalties for failing to follow the best management practices.
The total amount of composting material onsite at any one time does not exceed 100 cubic yards, inclusive of livestock carcasses.
All composting material, including livestock carcasses, comes from an agricultural site or sites owned or leased by the owner of the livestock carcasses.
The composting activity occurs on an agricultural site owned or leased by the owner of the livestock carcasses. If the activity occurs on an agricultural site owned or leased by the owner that is not the site where the carcasses were generated:
The activity shall occur in the county in which the carcass was generated or within an adjacent county.
The transport of the carcasses shall comply with all applicable state and local laws and regulations.
After the composting material is converted into cured compost, the cured compost is applied to an agricultural site owned or leased by the owner of the livestock carcasses that produced the cured compost and in compliance with the best management practices adopted pursuant to paragraph (1).
The operator of the composting operation notifies the applicable local enforcement agency and the regional water quality control board of the facility within 30 days of commencing operation, including the location and operator contact information.
For purposes of this section, the following definitions apply:
“Livestock” means any mammalian animal described in Section 19201.
“On-farm processing” means the slaughter of the livestock under circumstances authorized by subdivision (c) of Section 19020.
“Routine livestock mortality event” means the death of the livestock from a natural cause. “Routine livestock mortality event” does not include any of the following:
The death of the livestock due to being euthanized using barbiturates.
The death of the livestock from a disease listed on the department’s List of Reportable Conditions for Animals and Animal Products published pursuant to Section 9101.
The death of the livestock in a location that is under a quarantine imposed pursuant to Section 9562.
Every person who transports a live horse or horses to a slaughterhouse subject to licensing under this chapter shall provide such horse or horses with adequate food and water. A violation of this section shall constitute cruelty to an animal within the meaning of Section 597a of the Penal Code.
All trucks and every licensed premises of a dead animal hauler shall be inspected by the bureau at least once a year before the license is renewed and at other times as the secretary deems necessary.
Vehicles used for dead animal hauling shall be completely unloaded, cleaned, and disinfected at the rendering plant.
Inspectors and duly authorized agents of the state, city, county, and city and county health departments shall have free access at all hours of operation to premises where animals are slaughtered, or horsemeat or other meat products are processed, prepared, packed for pet food, or offered for sale or sold, for purposes of inspection. If slaughtering or carcass preparation or processing of meats and meat products is conducted at hours considered overtime for state employees, or on legal holidays, the owner or operator of the establishment shall by contract or agreement with the department, make arrangement to defray the additional cost for salaries and expenses for persons employed by the department to conduct the necessary inspection work during the overtime periods.
Horses, mules, burros, cattle, sheep, goats and swine may be slaughtered on the premises of a pet food slaughterer.
A dead animal hauler shall register each vehicle used to transport dead animals with the bureau.
No licensee shall refuse to permit entry or inspection by a representative of the department, or to permit the taking of a sample of products.
No meat or meat byproduct or horsemeat or horsemeat byproduct shall be sold or offered for sale as pet food or for pet food purposes by any person under any name or other marking or labeling which is false or misleading, or in any container of a misleading form or size, but established trade names and other marking and labeling and containers which are not false or misleading and which are approved by the director, are permitted.
All labels or other identification marks or methods for articles subject to this chapter shall be approved by the director in advance of their use.
No person shall sell, transport, or offer for sale or transportation any meat or meat byproduct, horsemeat, or horsemeat byproduct subject to this article that is misbranded as prescribed by regulation of the director.
ARTICLE 9. Horsemeat [19360. - 19367.]
Only horsemeat inspected by state or federal agents shall be sold or offered for sale for human consumption.
When horsemeat is offered for sale for human consumption there shall be displayed prominently in connection therewith and immediately adjacent thereto a sign with letters not less than eight inches in height and not less than three inches in width, bearing the words “horsemeat for human consumption.”
Every restaurant, cafe, or other public eating place offering or serving horsemeat for human consumption shall have stamped on all menus, in green ink letters not less than one-half inch in height and one-quarter inch in width the words “horsemeat served here”; likewise a placard must be prominently displayed bearing the words “horsemeat served here” in letters not less than four inches in height and one-half inch in width.
Horsemeat or fresh or frozen pet food shall not be packed, stored or kept in any retail establishment with or in close proximity with any food product which is or shall be offered for human consumption irrespective of its type or nature.
Horsemeat or fresh or frozen pet food shall be kept and stored in a separate unit in a retail establishment provided for that purpose. A sign which reads “horsemeat” with letters two inches high and approximately one inch wide shall be conspicuously displayed so that it can readily be seen by those in the room where such horsemeat is sold.
All inspected horsemeat shall bear a tag or label with the words “inspected horsemeat,” “U.S. government-inspected horsemeat,” “state-inspected horsemeat,” or “municipally inspected horsemeat,” depending upon the type of inspection made of the product with letters printed thereon not less than one-half inch in height; provided, that the letters may be less than one-half inch in height where the horsemeat is processed, packaged, and sealed at the point of inspection and bears the label required by the inspection agency.
All horsemeat intended for pet food purposes not produced in the State of California shall be denatured before entering the state and shall meet all requirements of this chapter and the regulations promulgated thereunder. All inspected horsemeat not produced in the State of California shall be delivered to the warehouse, distributor or elsewhere in the original shipping containers.
Nothing contained in this chapter shall prevent any city, city and county, or county from regulating or prohibiting by ordinance the sale of horsemeat in their respective communities.
ARTICLE 10. Regulations [19380. - 19385.]
The director may adopt rules or regulations necessary to carry out the purpose of this chapter.
The director shall by regulation promulgate minimum standards for the fitness of pet food so that the health of the animals and citizens of this state will not be endangered by unwholesome or tainted animal food.
The director may establish by regulation, requirements to insure that vehicles used to transport dead animals and carcasses or parts or products of animals which have died other than by slaughter will not create a public health problem and that such animals, carcasses or parts or products are not diverted to human or pet food.
The director shall establish by regulation, requirements for the slaughter of animals and inspection of pet food, to insure that it is wholesome, untainted, not adulterated, properly labeled, and fit for pet food, and for the handling and disposal of condemned meat or meat byproducts to prevent their use as human or pet food.
The director shall establish by regulation the conditions under which carcasses or parts or products of animals for pet food may be processed, transported, and stored so as to prevent diversion into human food channels.
The director may establish regulations to permit the sale and distribution of food for crab bait and for the feeding of mink and zoo animals under conditions which will conform to the purposes of this chapter but without compliance with such portions thereof which the director finds are unnecessary under any special circumstances involved.
ARTICLE 11. Records [19400. - 19404.]
Any person that slaughters any horse, mule, burro, sheep, goats, swine or any other bovine for use as pet food, or who by purchase or otherwise acquires possession of the meat of any horse, mule, burro, swine or bovine, and that sells or otherwise disposes of such meat for use as pet food, or operates a rendering plant shall make and keep for one year a correct record, separate from all other business records, of each such transaction, recorded at the time of the transaction, which shows all of the following:
The quantity of meat, bones, or carcasses acquired or disposed of.
The names and addresses of the parties to the transaction.
The date.
The place to which such meat was shipped or delivered.
The name of the person that made the shipment or delivery.
This article does not apply to any of the following:
Retail sales of any fresh or processed meat or meat product in a quantity of five pounds or less to any one person.
Any canned or prepackaged meat or meat product in any package of five pounds or less which is conspicuously labeled to show the common or usual names of the ingredients arranged in the order of the predominance contained in the package.
All horsemeat and animal food records shall be open at all times during the hours of operation to the inspection of the director, any health officer or sanitation inspector.
It is unlawful for any person that is required to keep horsemeat and pet food records to fail to keep such records, or to fail or refuse to permit an authorized inspection of the horsemeat and pet food records.
Every dead animal hauler shall keep a record when and where each carcass is picked up and delivered. The record shall be kept for a period of one year, and open to inspection by any agent of the department.
ARTICLE 12. Enforcement [19420. - 19421.]
There is in the Department of Agriculture a compliance and evaluation team.
The compliance and evaluation team’s primary duty shall be the enforcement of the provisions of this chapter and the regulations made pursuant thereto.
ARTICLE 12.5. Inspection Fees [19430. - 19433.]
Any person who is licensed pursuant to this chapter, who requests inspection at time which is considered as overtime by Section 19352 shall be liable for overtime inspection fees.
Any fee, charge, or assessment payable under the provisions of this chapter and regulations promulgated pursuant to it, shall constitute a debt of the person owing such fee, charge or assessment and shall be payable to the director on the date provided by the director. If such person does not pay the charge or assessment on the date specified, the director shall add to such unpaid fee, charge or assessment an amount not exceeding 25 percent of such unpaid charge, fee, or assessment.
In establishing such fee, charge, or assessment the director shall give consideration to the fees, charges and assessments provided under the provisions of law stated above, with the exception of the license fees. The schedule of fees, charges, and assessments may from time to time be revised by the director as he deems necessary. Such schedules may be sufficient to provide such reserves as the director deems necessary.
ARTICLE 13. Penalties [19440. - 19447.]
Any person who is found guilty of violating any of the provisions of this chapter or the rules and regulations promulgated under this chapter is subject to imprisonment in a county jail for not more than one year or a fine of not more than five thousand dollars ($5,000), or both that imprisonment and fine; but if the violation is committed after a conviction of that person under this section has become final, or the violation is committed with intent to defraud or mislead, the person shall be subject to imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or a fine of not more than fifteen thousand dollars ($15,000), or both that imprisonment and fine.
Any person who, as principal or agent, employer or employee, adulterates any other meat or meat food product intended for human food with horsemeat or the product of an animal which has died otherwise than by slaughter or the product of an animal slaughtered for pet food in accordance with this chapter, or represents horsemeat or pet food to be any other meat or meat food product, shall be guilty of a felony punishable by a fine of not less than ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or both.
In addition to the remedies herein provided, the department may bring an action in superior court and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this chapter. Any proceeding under the provisions of this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the department shall not be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
Upon conviction of a violation of any provision of this chapter, any license issued pursuant to this chapter shall be automatically suspended for 30 days. The director may, after notice and hearing, suspend the license for a longer period if he believes the suspension will promote the objectives of this chapter.
In lieu of levying a civil penalty pursuant to Section 19447, and in lieu of seeking prosecution, upon complaint of the secretary, the Attorney General may bring an action for civil penalties in any court of competent jurisdiction in this state against any person who violates Article 6 (commencing with Section 19300), Article 6.5 (commencing with Section 19310), or any regulation adopted pursuant to those articles. The civil penalty imposed shall not exceed ten thousand dollars ($10,000) for each violation.
Any funds recovered by the secretary pursuant to this section shall be deposited in the Department of Food and Agriculture Fund, and upon appropriation by the Legislature, shall be used for the purposes described in Section 221.
In addition to any other remedies provided by this chapter, but in lieu of seeking prosecution of any violation of Article 6 (commencing with Section 19300) or Article 6.5 (commencing with Section 19310) as a misdemeanor, the director may seek recovery of a civil penalty pursuant to Section 19445 or levy civil penalties pursuant to Section 19447.
In lieu of any civil action pursuant to Section 19445, and in lieu of seeking prosecution, the secretary may levy a civil penalty against a person who violates Article 6 (commencing with Section 19300), Article 6.5 (commencing with Section 19310), or any regulation adopted pursuant to those articles, in an amount not to exceed five thousand dollars ($5,000) for each violation.
Before a civil penalty is levied, the person charged with the violation shall receive notice of the nature of the violation and shall be granted the opportunity to review the secretary’s evidence and, for up to 30 days following the issuance of the notice, the opportunity to present written argument and evidence to the secretary as to why the civil penalty should not be imposed or should be reduced from the amount specified in the penalty notice. Notwithstanding Chapter 4.5 (commencing with Section 11400) of, and Chapter 5 (commencing with Section 11500) of, Part 1 of Division 3 of Title 2 of the Government Code or any other provision of law, this section does not require the department to conduct either a formal or informal hearing. The secretary instead may dispose of the matter upon review of the documentation presented.
Any person upon whom a civil penalty is levied may appeal to the secretary within 20 days of the date of receiving notification of the penalty, as follows:
The appeal shall be in writing and signed by the appellant or his or her authorized agent and shall state the grounds for the appeal.
Any party, at the time of filing the appeal, or within 10 days thereafter, may present written evidence and a written argument to the secretary.
The secretary may grant oral arguments upon application made at the time written arguments are made.
If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days prior to the date set therefor. This time requirement may be altered by an agreement between the secretary and the person appealing the penalty.
The secretary shall decide the appeal on any oral or written arguments, briefs, and evidence that he or she has received.
The secretary shall render a written decision within 45 days of the date of appeal, or within 15 days of the date of oral arguments. A copy of the secretary’s decision shall be delivered or mailed to the appellant.
The secretary may sustain the decision, modify the decision by reducing the amount of the penalty levied, or reverse the decision.
A review of the decision of the secretary may be sought by the appellant pursuant to Section 1094.5 of the Code of Civil Procedure.
Any penalties levied by the secretary pursuant to this section shall be deposited in the Department of Food and Agriculture Fund, and, upon appropriation by the Legislature, shall be used for the purposes described in Section 221.
CHAPTER 6. Slaughter [19501. - 19503.]
Cattle, calves, horses, mules, sheep, swine, goats, or fallow deer, or poultry shall be slaughtered by the methods prescribed in this section. No state agency shall contract for, purchase, procure, or sell all or any portion of any animal, unless that animal is slaughtered in conformity with this chapter. This chapter applies to any person engaged in the business of slaughtering animals enumerated in this section, or any person slaughtering any of those animals when all, or any part of, that animal is subsequently sold or used for commercial purposes.
All cattle, calves, horses, mules, sheep, swine, goats, or fallow deer subject to this part, or poultry subject to Part 1 (commencing with Section 24501) of, Part 2 (commencing with Section 25401) of, and Part 3 (commencing with Section 26401) of, Division 12 shall be slaughtered by either of the following prescribed methods:
The animal shall be rendered insensible to pain by a captive bolt, gunshot, electrical or chemical means, or any other means that is rapid and effective before being cut, shackled, hoisted, thrown, or cast, with the exception of poultry which may be shackled.
The animal shall be handled, prepared for slaughter, and slaughtered in accordance with ritual requirements of the Jewish or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument.
This section does not apply to the slaughter of spent hens and small game birds, as defined by the department by regulation.
The department shall, on or before December 31, 1993, adopt regulations to implement Section 19501 as to the slaughter of poultry, and, thereafter, enforce those regulations.
The regulations adopted under subdivision (a) shall apply to any person engaged in the business of slaughtering poultry, or to any person slaughtering poultry when all, or any part of, the poultry is subsequently sold or used for commercial purposes, except as provided in Section 19501. However, the department shall not utilize personnel to enforce those regulations with respect to any poultry plant in this state exempted from Chapter 2 (commencing with Section 24651) of Part 1 of Division 12 by Section 24712, 24713, or 24714.
The regulations adopted under this chapter shall conform as far as possible to the regulations of the United States Department of Agriculture governing methods of slaughtering.
The Department of Agriculture shall enforce the provisions of Section 19501 and is authorized and directed to perform the following duties:
Designate, on or before March 1, 1968, and at such times thereafter as it deems advisable, methods of slaughter and of handling in connection with slaughter, with respect to each species of livestock enumerated in Section 19501, which conform to the provisions of Section 19501. In addition, the department may designate other methods not specifically described in Section 19501. However, nothing in this section shall authorize the department to prohibit any method specifically permitted in Section 19501.
PART 4. Livestock Confinement [19700. - 19700.]
CHAPTER 1. General Provisions [19700. - 19700.]
ARTICLE 1. Fees [19700. - 19700.]
The secretary shall adopt, by regulation, fees to cover the department’s reasonable regulatory costs of the administration, implementation, and enforcement of laws governing the confinement of animals, as described in Chapter 13.8 (commencing with Section 25990) of Division 20 of the Health and Safety Code.
Costs of administration, implementation, and enforcement may include, but are not limited to, costs incurred for the department’s role in registration, certification, inspections, and audits.
The total revenue collected each year through the fees imposed pursuant to this section shall be set at an amount equal to the expenditure levels set forth in the Budget Act of each fiscal year for the activity described in subdivision (a).
The secretary may adjust the fees each fiscal year to conform to the expenditure levels set forth in the Budget Act for this activity, plus any share of statewide general administrative costs assessed to the Department of Agriculture Account, Department of Food and Agriculture Fund for that fiscal year. Fee adjustments for this purpose shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
If the secretary determines that the revenue collected during the preceding year was greater than, or less than, the expenditure levels set forth in the Budget Act, the secretary may further adjust the fees to compensate for the over or under collection of revenue.
The fees established in subdivision (a) shall include amounts sufficient to repay any amount loaned from the Department of Agriculture Account, Department of Food and Agriculture Fund in the 2020–21 and 2021–22 fiscal years to pay for the department’s reasonable regulatory costs of the administration, implementation, and enforcement conducted under laws governing the confinement of animals, as described in Chapter 13.8 (commencing with Section 25990) of Division 20 of the Health and Safety Code.
The fees collected by the secretary pursuant to subdivision (a) shall be separately accounted for in the Department of Agriculture Account, Department of Food and Agriculture Fund.
DIVISION 10. CATTLE PROTECTION [20001. - 22086.]
CHAPTER 1. Definitions [20001. - 20030.]
Unless the context otherwise requires, the definitions in this chapter govern the construction of this division.
“Animal,” “calf,” and “cattle” mean only bovine animals.
“Brand” means a design which is permanently impressed on the hide of an animal by burning with acid, a chemical compound, or a hot iron.
“Brand” includes “brand and mark” if a mark is recorded or used with a brand.
“Bureau” means the Bureau of Livestock Identification.
“Carcass” means the carcass of an animal.
“Cattle record brand” means a brand used to classify an animal for the purpose of keeping records which relate to the animal.
“Chief” means the Chief of the Bureau of Livestock Identification.
“Hide” means the hide of an animal.
“Inspector” means a hide and brand inspector. It includes the chief, regional brand supervisors, senior brand inspectors, investigators, and persons employed on a collaborative basis pursuant to Section 483 to carry out this division.
“Mark” means a design which is cut into or from the ear, dewlap, or other part of an animal.
“Vent” means a design which is permanently impressed on the hide of a branded animal for the purpose of voiding the prior brand.
“Feedlot” means a beef cattle feedlot or feed yard having more than 500 head of cattle at one time during the calendar year in which cattle are being fed for slaughter.
“Beef cattle” means bovine animals of any breed being grown primarily for meat production.
“Licensed frozen food locker plant” means an establishment defined and licensed pursuant to Chapter 14 (commencing with Section 28800) of Division 22 of the Health and Safety Code.
“Modified point-of-origin inspection area” means any area designated by the director, by regulation, pursuant to Section 21111.
“Upon entry into a registered feedlot” means brand inspection of the cattle as soon after arrival at the feedlot as is consistent with the provisions of Section 21172.5.
“Processor” means an establishment in which, for compensation directly or indirectly, meat or meat products are cut, wrapped, or frozen to be delivered for frozen storage by the ultimate customer.
“Point of sale” as used in Section 22004.1 means the first place where the transaction occurs when the hide is sold or otherwise transferred by the person who slaughtered the animal.
“Full point of origin inspection” as provided in Sections 21141 and 21141.5 means the inspection of all cattle, except as herein excepted, prior to transportation across the area boundary. However, pasture-to-pasture movement within the area is permitted without inspection, and cattle moving to a destination point within the area shall pay the destination inspection fee only.
“Destination point inspection” means the inspection of cattle within the California borders after shipment directly to a posted stockyard, public salesyard, private cattle sales market, licensed slaughterhouse, or registered feedlot, without prior inspection.
“Cattle movement” means the transportation of cattle by vehicle or herding, such as a drive of an animal herd.
“Private treaty transaction,” as used in this division, means the transfer of ownership of cattle or livestock by agreement or contract, at a point other than a destination point.
“Pasture-to-pasture movement” means transportation of cattle, or leading or herding from one feeding or pasture premise to another feeding or pasture premise with no change of ownership.
“Transportation, transport, or transporting” as used in this division means to carry livestock from one place to another by means of a vehicle which may be propelled, moved, or drawn on land or water, or may be airborne.
“Shipper” means any person who transfers cattle from one geographical location to another.
“Licensed slaughterer” means any person who is in the business of slaughtering bovine animals and who has applied to and been issued a grant of inspection by the United States Department of Agriculture Food Safety and Inspection Service.
CHAPTER 2. General Provisions [20151. - 20283.]
ARTICLE 1. Application [20151. - 20152.]
The Legislature finds and declares that this division is enacted in the exercise of the police power of this state for the purpose of protecting the cattle industry of this state from losses of livestock by theft and straying.
The Legislature further finds and declares that the protection should be afforded through a system of brand inspection of cattle as the cattle are moved and marketed within this state, and that, to the extent that adequate funding is made available, an investigative unit be maintained within the department for the purpose of assisting local law enforcement agencies in combating cattle theft in this state.
The department shall develop a surveillance patrol program, to the extent that adequate funding is made available, to assist in the detection and apprehension of persons involved in cattle theft.
The provisions of this division, including the payment of fees, are applicable to all state and county institutions which are engaging in livestock operations.
ARTICLE 2. Regulation [20171. - 20172.]
The director may make such regulations as may be reasonably necessary to carry out this division and to protect the cattle of this state from theft and misappropriation.
The regulations shall be published in one or more stock journals of general circulation in the state before they become effective.
ARTICLE 3. Investigations [20201. - 20203.]
The director may make any necessary investigations relative to reported violations of this division, pursuant to Article 2 (commencing with Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the Government Code.
The person in custody of any records required to be kept by any provision of Divisions 9 (commencing with Section 16301), 10 (commencing with Section 20001), or 11 (commencing with Section 23001) shall exhibit such records upon demand by any inspector or peace officer.
Such records include, but are not limited to, the following documents:
Brand inspection certificates.
Bills of sale or bills of consignment.
Truck invoices and bills of lading.
Shipping and receiving slips.
Sales invoices or certificate of sale.
It is unlawful for any person to refuse to exhibit any records to any inspector or peace officer who is acting in accordance with the provisions of Section 20202.
ARTICLE 4. Criminal Penalties [20221. - 20222.]
Every person that violates this division is guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or by imprisonment of not less than 10 days nor more than one year, or by both that fine and imprisonment. Each violation during any day constitutes a separate offense.
Any person who uses an unrecorded, forfeited, or canceled brand shall pay a penalty upon a first violation of one hundred dollars ($100); upon a second violation within the same 12-month period, a penalty of two hundred dollars ($200); and upon a third or subsequent violation within the same 12-month period, a penalty of five hundred dollars ($500), which is in addition to any other penalty provided by law.
ARTICLE 5. Civil Penalties and Remedies [20251. - 20253.]
Any person that violates any provision of this division, or any regulation which is issued pursuant to it, is liable civilly for a penalty in an amount not to exceed a sum of five hundred dollars ($500) for each violation. Any money which is recovered under this section shall be paid into the Department of Agriculture Fund.
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring an action for civil penalties in the name of the people of this state in any court of competent jurisdiction in this state against any person violating any provision of this division.
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring an action in the name of the people of this state in the superior court for an injunction against any person violating any provision of this division or any regulation which is duly issued by the director pursuant to it.
Any proceedings pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
ARTICLE 6. Collection and Disposition of Money [20281. - 20283.]
The department shall, at least once a month, report to the State Controller the total amount of money collected for fees, penalties, judgments, or otherwise. It shall, at the same time, pay into the State Treasury the entire amount of such receipts. The receipts shall be credited to the Department of Agriculture Fund.
Any money in the Department of Agriculture Fund derived under any of the provisions of this division may be expended for the administration and enforcement of any of the provisions of this code stated in Section 16461, notwithstanding any other provision of law which limits the expenditure of any such money to some specific section, article, or chapter of this division.
A civil action may be brought by the department to recover any fee, penalty, or other money that becomes due pursuant to this division.
CHAPTER 3. Enforcement [20401. - 20471.]
ARTICLE 1. Bureau of Livestock Identification [20401. - 20407.]
There is in the department the Bureau of Livestock Identification.
The bureau is administered by a chief who is appointed by the director pursuant to the State Civil Service Act, Part 2 (commencing with Section 18500), Division 5, Title 2 of the Government Code.
The chief shall administer and enforce this division and shall perform such other duties within the scope of his employment as the director may require.
The chief is responsible to the director for the proper administration and enforcement of this division.
The chief shall assist in the prosecution of persons charged with violation of any provision of this division.
Subject to the approval of the director, the chief shall appoint such inspectors and other assistants as may be necessary to carry out this division.
Subject to the approval of the director, the chief may employ investigators to investigate reported thefts or losses of cattle.
ARTICLE 2. Inspectors and Other Peace Officers [20432. - 20440.]
Each inspector may enforce the provisions of Chapter 5 (commencing with Section 484), Title 13, Part 1 of the Penal Code, with reference to theft of any animal or carcass, and is authorized, as a public officer, to arrest for any such offense. In the event of an arrest pursuant to this section, the provisions of Section 835a of the Penal Code shall apply as if the inspector were a peace officer.
Each sheriff, member of the California Highway Patrol, and other peace officer shall cooperate and assist in enforcing this division.
Each sheriff or other officer to whom a complaint which relates to the loss or theft of cattle is made shall forthwith transmit to the bureau a report which shows all of the following:
The number of animals that are involved.
A description of the animals, including any marks and brands on them.
The date of the loss or theft.
Any other information which the chief may by regulation require.
If an inspector or peace officer finds any animal, hide, carcass, or portion of a carcass in the possession of any person that he has reason to believe is not the legal owner or entitled to the possession of it, he shall take possession of it or notify the person in possession where to leave it pending investigation.
A person shall not, without a release from the inspector or peace officer, dispose of the animal, hide, carcass, or portion of a carcass within 30 days after receiving the notice pursuant to Section 20435 or until it is released by the inspector or peace officer.
Any animal, hide, carcass, or portion of a carcass shall not be held pursuant to Section 20435 for more than 30 consecutive days, unless the notice of seizure is renewed by the inspector or peace officer.
Any inspector or peace officer may stop any conveyance which is transporting any animal, hide, carcass, or portion of a carcass on any public thoroughfare for the purpose of making an investigation and may take possession of the animal, hide, carcass, or portion of a carcass and hold it for not to exceed 30 days pending an investigation.
Any expense which is incurred in caring for any property which is seized pursuant to this article shall be paid by the owner of the property. The cost of caring for the property so held is a lien upon the property. The lien may be enforced in the manner which is prescribed in Section 3052 of the Civil Code.
Any animal which is seized by or comes into the possession of an inspector pursuant to this division shall be disposed of as provided in Chapter 7 (commencing with Section 17001), Part 1, Division 9 of this code.
ARTICLE 3. Livestock Identification Advisory Board [20461. - 20471.]
As used in this article, “board” means the Livestock Identification Advisory Board.
There is in the department the Livestock Identification Advisory Board, which consists of seven members. The director may appoint one additional member on the board, as provided in Section 20463.
It is hereby declared, as a matter of legislative determination, that persons appointed to the Livestock Identification Advisory Board pursuant to this article are intended to represent and further the interest of the particular agricultural industries concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such board, the particular agricultural industries concerned are tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The director shall appoint the members to the board as follows:
Two shall be beef cattle producers.
Two shall be dairymen.
One shall be engaged in the livestock marketing business.
Two shall be operators of registered feedlots.
The director may appoint one additional member on the board, who shall be a public member. Upon the director’s request, the board shall submit to the director the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, or processor nor financially interested in any producer, shipper, or processor, for appointment by the director as a public member of the board. The director may appoint one of the nominees as the public member on the board. If all nominees are unsatisfactory to the director, the board shall continue to submit lists of nominees until the director has made a selection. Any vacancy in the office of the public member of the board shall be filled by appointment by the director from the nominee or nominees similarly qualified submitted by the board. The public member of the board shall represent the interests of the general public in all matters coming before the board and shall have the same voting and other rights and immunities as other members of the board.
In making his selection of the membership of the board, the director shall take into consideration the recommendations of organizations and associations of cattlemen, dairymen, livestock marketing agencies, and general farm organizations.
The term of office of the members of the board is four years. Any vacancy which occurs during an unexpired term shall be filled by appointment for the unexpired term.
The members of the board shall serve without compensation but are entitled to their traveling expenses in the same amount as is provided for other nonsalaried board and commission members who serve the state.
The board shall assist the director and the Chief of the Bureau of Livestock Identification in the administration and enforcement of Part 1 (commencing with Section 16301) and Part 2 (commencing with Section 17401) of Division 9, Chapter 2 (commencing with Section 18351) and Chapter 3 (commencing with Section 18501) of Part 3 of Division 9, Division 10 (commencing with Section 20001), and Division 11 (commencing with Section 23001). The board shall make recommendations to the director concerning such administration and enforcement. Any such recommendation shall be made effective upon approval of the director, including recommendations under subdivisions (a), (b), (c), and (d) of Section 20469.
The members of the board shall confer with all of the following regarding matters which are involved in the administration of the enforcement functions of the Bureau of Livestock Identification:
The director and the Chief of the Bureau of Livestock Identification.
Livestock producers and marketers.
Farm and livestock organizations.
Other cooperating agencies.
The board shall make recommendations to the director and to the Chief of the Bureau of Livestock Identification relative to all of the following:
Improvements and changes in the administration and enforcement of the hide and brand laws and regulations which are adopted pursuant to such laws.
Procedures which are followed by the Bureau of Livestock Identification.
Curbing of livestock thefts.
The annual budget for the Bureau of Livestock Identification.
Legislation which is designed to improve the functioning of the bureau.
The board shall meet at the call of its chairperson. It shall meet at least twice in every calendar year.
The meetings of the board shall be held in the offices of the department at Sacramento, or elsewhere within the state, if necessary for the proper performance of its duties.
CHAPTER 4. Brands and Brand Records Generally [20601. - 20797.]
ARTICLE 1. Requirements [20601. - 20610.]
It is the ultimate object of this division to provide for statewide recordation of brands with the entire state as one branding district.
Brands for the purpose of establishing or indicating ownership of cattle may be recorded pursuant to this chapter. Brands for other purposes shall not be recorded.
The chief shall, by regulation, prescribe the location on the animal where different types of brands, including recorded brands and cattle record brands, may be applied.
It is unlawful for any person to brand any animal except in accordance with the provisions of this chapter.
It is unlawful for any person to use an unrecorded, forfeited, or canceled brand.
It is unlawful for any person to apply a recorded brand in any location on the animal except that which is specified on the brand registration certificate.
The use of a brand on any location except that which is specified on the brand registration certificate is the same as the use of an unrecorded brand.
It is unlawful for any person to use a brand on cattle indicating ownership unless the cattle are owned by him or he has been authorized by the owner of the cattle and the brand is recorded under the owner’s name and is on file with the Bureau of Livestock Identification.
Proof of possession or ownership of cattle with an unrecorded, forfeited, or canceled brand establishes a rebuttable presumption that the person in possession or the owner of the cattle has branded them with such brand. This presumption is a presumption affecting the burden of proof.
In every suit at law or in equity, if the title to any animal is involved, proof of the brand of the animal establishes a rebuttable presumption that the owner of the brand was the owner of the animal at all times during which the brand was duly recorded as provided in this code. This presumption is a presumption affecting the burden of proof.
The right of any person to use such brand may be established by a certified copy of the brand records on file in the bureau.
The owner of cattle brought into this state from out of state for grazing purposes may apply to the director for a permit to allow the branding of the cattle with a brand recorded in another state. The director may issue a permit for this purpose under all of the following conditions:
The owner of an identical brand recorded for use in this state has been notified and has given written consent for the use of the brand.
The brand is limited to use on suckling calves which are accompanied by their mothers bearing the same brand.
The herd is inspected by the bureau prior to branding.
The director may charge a fee for inspection as provided in Article 9 (commencing with Section 21281) of Chapter 6, including a time and mileage charge, to cover the cost of providing the inspection.
The director may establish and charge a fee to cover the cost of issuing the permit authorized by this section. The fee for the permit shall not exceed one hundred dollars ($100).
This section is applicable only to those cattle brought into this state from a state which has implemented a reciprocal program for cattle from this state.
ARTICLE 2. Venting Brand Requirements [20631. - 20633.]
Venting a brand consists of rebranding a branded animal, by the owner of the animal, for the purpose of voiding his prior brand.
A vent brand may be applied on the loin of an animal which corresponds to the side the owner’s registered brand.
Only the owner’s recorded brand may be used as a vent. Recordings shall not be issued which allow the use of any other brand as a vent.
ARTICLE 3. Applications [20661. - 20672.]
Any person that desires to use a brand in this state may acquire the right to do so pursuant to this chapter. Application forms for this purpose shall be furnished by the bureau upon request.
To conform to the objective of this chapter, all applications for the recordation of a brand shall be accepted by the chief only if the proposed brand design fulfills the following requirements:
Is not in conflict with any other recorded brand in this state.
Is capable of producing a like design when burned into the hide of an animal.
Is capable of readily symbolizing the intended design to any person who views it.
Lends itself to common verbal description.
An application for the recordation of a brand shall be filed with the bureau.
The application shall contain all of the following:
A facsimile of the brand which is sought to be recorded.
A statement of the location on the animal where the brand is to be applied.
The name and address of the applicant.
The signature of a parent or guardian if the applicant is under 18 years of age.
A mark may be recorded only with a brand. If a mark is sought to be recorded with a brand, the application shall also contain a diagram which shows the manner of marking.
Upon receipt of an application, the bureau shall examine the application and compare the design applied for with brands that are already of record.
An application shall not be accepted for the recordation of a brand which consists only of a mark.
An application shall not be accepted for the recordation of a brand if the brand is to be applied to any of the following:
Either jaw.
The face.
The nose.
Either loin.
The breeching of an animal.
An application shall not be accepted for the recordation of a brand which is accompanied by a mark if the use of the mark involves cutting off more than one-half of an ear.
An application shall not be accepted for the recordation of a brand except upon the payment of the fee for the recordation of the brand.
If the application does not conform to the requirements of, or cannot be accepted pursuant to, this chapter, a statement of the reason why it cannot be accepted shall be transmitted to the applicant.
Any person who is aggrieved at any determination made pursuant to Section 20662 may appeal in person to the Livestock Identification Advisory Board. Upon receipt of a written request from the person appealing the decision, such person shall be permitted to present his views to the board. The board may recommend to the director to affirm, reverse, or modify the determination. The decision of the director shall be final.
ARTICLE 4. Recordation [20691. - 20701.]
The bureau shall maintain a record of all brands that are recorded, except forfeited or canceled brands which are subject to Section 20701.
Any person, upon request to the bureau, shall be furnished information as to any recorded brand.
A brand shall not be recorded if it consists of any letters or characters which are applied in more than one branding location on the animal.
A brand shall not be recorded for any person under 18 years of age unless the application is countersigned by his parent or guardian.
Recordation of a brand consists of entering in the brand records the matters which are contained in the application, together with the date of recordation, and the execution by the bureau of a cattle brand registration certificate.
The original cattle brand registration certificate shall be kept on file in the bureau. A duplicate certificate shall be issued to the person in whose name the brand is recorded.
The issuance to a person of a cattle brand registration certificate confers upon the person to whom it is issued both of the following:
The right to use the brand until the right to use it is forfeited or the record of the brand is canceled pursuant to this chapter.
The right to use the same brand on the same location on horses, mules, burros, sheep, and swine if not in conflict with a previously recorded brand.
The right to use a brand is a property right and may be sold or otherwise transferred.
A transferee of a brand shall not use the brand until the transfer has been recorded by the bureau.
The record of any brand may be canceled at any time upon the written request of the person in whose name it is recorded.
The records of brands which have been forfeited or canceled for more than five years may be removed from the files and destroyed.
ARTICLE 5. Suspension and Forfeiture [20721. - 20725.]
The right to use a recorded brand is lost by the failure to pay the fees which are required by Article 6 (commencing with Section 20751) of this chapter.
If the renewal fee that is required by Article 6 (commencing with Section 20751) is not paid by April 30th following the recordation of the brand, or by April 30th of the year that follows the last year for which the renewal fee has been paid, the right to use the brand is suspended by operation of law as of April 1st of that year.
If the right to use a brand is suspended for more than one year, the right is forfeited on April 1st following the year of suspension. The brand, thereafter, may be rerecorded by the former owner or it may be applied for by any other person pursuant to this chapter.
The right to use any brand which conflicts with any brand which has a prior cattle brand registration certificate number pursuant to this chapter is forfeited. All recordations shall be on a statewide basis.
Any person convicted of Section 487a of the Penal Code shall be prohibited from registering or owning, in whole or in part, a brand for a period of five years following the date of the conviction.
Upon being notified of the conviction, the secretary shall terminate the registration of any brand registered to a person convicted of Section 487a of the Penal Code.
ARTICLE 6. Fees and Penalties [20751. - 20760.]
The fee for each application for recording a brand is seventy dollars ($70).
The fee entitles the applicant to the recordation of one brand, one duplicate brand registration certificate, and the right to use the brand until the following April 1st. The fee for each additional duplicate is ten dollars ($10).
Except as otherwise provided in Section 20755, the owner of a brand shall, on or before April 30 after its recordation, pay to the bureau a biennial period renewal fee of seventy dollars ($70) for the right to continue to use the brand.
The owner of a recorded brand may, on or before April 30 of any year, pay in advance to the bureau a sum that is a multiple of seventy dollars ($70). The payment entitles him or her to use the brand for a minimum of two years, but not to exceed 10 years, at the rate of thirty-five dollars ($35) per year on and after April 1 of that year. If the advance payment is made, biennial renewals for the years within the period for which advance payment has been made are not required.
If the right to use a brand is suspended for failure to pay the renewal fee, it may be reinstated within one year from the date of suspension upon the payment of the biennial renewal fee of seventy dollars ($70) plus a twenty-five dollar ($25) penalty fee.
Except as provided in subdivision (b), the fee for rerecording a forfeited or canceled brand shall be one hundred forty dollars ($140). This amount shall accompany the application to rerecord.
When a penalty has been paid pursuant to Section 20222, within 30 days of the date the application to rerecord is received by the secretary, the fee to rerecord shall be seventy dollars ($70).
The fee for recording the transfer of a brand, including a new certificate, is seventy dollars ($70).
If the applicant fails to submit within 60 days of the date of receipt by the department of application for recording or re-recording a brand, or for recording the transfer of a brand, any information or document which is required by this chapter, the application lapses. The applicant is not entitled to the recording or re-recording of the brand, or the recording of the transfer of the brand, unless and until he submits a new application and another fee for it.
The fees or penalties prescribed in this article may be raised or lowered under one of the following conditions:
Lowered by the director, based upon a finding and recommendation of the Livestock Identification Advisory Board, whenever they determine that the cost of administering and enforcing the provisions of this division may be maintained with a lower fee.
Increased by an amount not to exceed 20 percent of the statutory fee, by the director upon the recommendation of the Livestock Identification Advisory Board whenever the board determines that the costs of administering and enforcing the provisions of this division require a greater fee. The advisory board shall approve any increase in fees by a two-thirds vote of its entire membership.
ARTICLE 7. Similar Brands [20791. - 20797.]
If the brand records on file with the bureau disclose that two or more brands have been recorded which appear to be so similar as to be misleading or conflicting, the chief may, and upon request of the owner of one of such brands he shall, cause an investigation to be made and a hearing held upon the matter.
Notice of the hearing shall be given to each interested person at least 10 days prior to the hearing.
At the hearing, the chief shall first determine if the brands are so similar as to be misleading or conflicting. The chief shall dismiss the proceedings as to any brands which he finds are not so similar as to be misleading or conflicting.
If, at the hearing, the chief finds that two or more brands have been recorded which are so similar as to be misleading or conflicting, he shall determine which of the conflicting brands has been of record for the longest consecutive period of time. The owner of such brand has the right to continue to use his brand. The conflicting brand shall be canceled.
The owner of a recorded brand may request the chief to make an investigation if there are cattle other than his own which bear a brand so similar to such owner’s brand as to be misleading or conflicting.
If, after the investigation, the chief finds sufficient cause for such action, he may require that the cattle, other than those of the owner of the brand which is recorded, be branded with some other brand which is approved by the chief and recorded pursuant to this chapter.
Any person who loses his or her right to use a brand as a result of the determination of the chief pursuant to this article may appeal to the secretary within 15 days. The secretary may affirm, reverse, or modify the determination of the chief.
CHAPTER 5. Cattle Record Brands [20901. - 20906.]
Notwithstanding any other provision of this division, cattle may be branded pursuant to this chapter.
A cattle record brand shall be used only for purposes of identification. It is not evidence of ownership.
A cattle record brand shall not be recorded.
A cattle record brand may be placed upon either loin in front of the hip and behind the ribs of the animal.
A cattle record brand for dairy cattle of the Holstein, Jersey, Guernsey, Ayrshire, Brown Swiss, Dutch Belted, and Milking Shorthorn breeds may be placed upon the right hip rather than upon the loin.
A cattle record brand consists of:
Consecutive numerals, letters, or a combination of numerals or letters if placed upon the loin of an animal.
At least three consecutive numerals that constitute a number greater than 200 if placed upon the right hip of an animal.
CHAPTER 6. Inspection of Cattle [21051. - 21323.]
ARTICLE 1. Requirements, Generally [21051. - 21070.]
Except as otherwise provided in this chapter, cattle shall be inspected as follows:
Whenever cattle are sold or ownership is transferred.
Prior to movement out of any designated modified point-of-origin inspection area, for purposes other than sale or slaughter and no change of ownership is involved, as provided in Section 21111.
Prior to movement out of the state.
Upon entry into a registered feedlot.
Prior to slaughter.
Prior to release or sale from a public stockyard, public saleyard, or public or private cattle sales market.
Prior to release from a posted stockyard or posted saleyard.
Prior to transportation out of a full point-of-origin area, as provided in Section 21141.
Prior to transportation or movement from premises designated as quarantine, restriction, or isolated areas pursuant to Section 9565.
Any person who moves or transports any animal without inspection, as required by this chapter, is liable to the director for a civil penalty in the amount of the expenses incurred by the director to investigate and prosecute the violation and, if the violation involved the unlawful taking of animals, the expenses incurred by the director to recover and return the animal or animals to their owner.
If the director finds that a violation of subdivision (a) has occurred, he or she shall calculate the amount of the civil penalty and make demand for payment within 30 days thereof. The respondent may deny liability in whole or in part, in which case the director shall set the matter for hearing before a hearing officer of the department or, at the director’s discretion, pursuant to Section 11502 of the Government Code. The hearing procedure under this subdivision shall be conducted pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
The respondent may petition for judicial review of the director’s determination to assess a civil penalty pursuant to Section 1094.5 of the Code of Civil Procedure by filing an action within 30 days of the date of service of the director’s decision.
The civil penalty in this section is in addition to any other civil or criminal penalties provided by law.
Any funds collected pursuant to this section shall be paid into the Department of Food and Agriculture Fund.
In addition to any other penalty provided by this chapter, the director may levy a civil penalty against any person who violates this chapter of an amount not to exceed one hundred dollars ($100) for each violation.
Before a civil penalty is levied, the person who is charged with a violation shall be provided a notice of the violation, shall have an opportunity to be heard, and shall have the right to review the evidence and to present evidence on his or her behalf.
The decision of the director may be reviewed pursuant to Section 1094.5 of the Code of Civil Procedure.
The director shall deposit the funds collected pursuant to this section in the Department of Food and Agriculture Fund for expenditure as authorized by this division.
When brand inspection is not required under Section 21051, any person, upon his request, shall receive brand inspection of cattle. Any such person who requests the inspection shall pay to the director a time and mileage charge established by the director to equal the cost of providing such an inspection.
Nothing in this section shall exempt any person from any other inspection requirements for the same cattle at any later time under Section 21051, nor shall such a person be exempt from any statutory inspection fees provided for by this division.
Notwithstanding any other law, for five years following the date of conviction, a person convicted of Section 487a of the Penal Code shall submit to an inspection for any cattle in his or her ownership or care prior to any movement, transportation, or change in ownership.
A person required to submit to an inspection pursuant to this section shall pay to the secretary a fee, as established by the secretary, for the costs incurred, including the cost of time and mileage, in performing the inspection.
A person required to submit to an inspection who violates a provision of this section shall be charged a civil penalty by the secretary of one thousand dollars ($1,000) per animal required to be inspected.
It is unlawful for any person who owns or has custody of cattle to move, slaughter, release, sell, or receive at a registered feedlot that cattle without the inspection that is required by Section 21051.
For the purposes of this section, a common carrier which transports cattle does not have custody of the cattle.
Inspection is not required prior to transportation from a modified point-of-origin inspection area, or prior to movement if being sold, if the cattle are being moved or shipped direct to one of the following destinations:
A registered feedlot in this state.
A licensed slaughterhouse in this state.
A public salesyard or public cattle sales market in this state that is licensed pursuant to Section 21733 or posted by the United States Department of Agriculture under the Packers and Stockyards Act.
All cattle shipped without inspection prior to transportation under this section shall be inspected at the destination point.
Inspection is not required in cases where cattle are being transported to or from a fair or livestock exhibit within the state’s boundaries if the shipment is accompanied by a certificate of the manager or an official of the fair or exhibit, which shows all of the following:
Any brands and marks.
The names of the shipper and consignee.
The point of origin and destination of the shipment.
Proof of ownership as defined in Section 16522.
Inspection is not required prior to slaughter by licensed slaughterers at slaughterhouses where the chief determines it is impossible or impractical to have inspection prior to slaughter. The chief shall, from time to time, designate which slaughterhouses are within this category. Slaughterers at such slaughterhouses shall keep the records which are required by Section 22045. They shall also keep the hides of animals which are so slaughtered until the hides are inspected or released.
Except as provided in Section 21206, inspection is not required prior to slaughter at a licensed slaughterhouse when the cattle are being shipped direct from one of the following:
A registered feedlot in this state.
A public salesyard or cattle sales market in this state that is licensed pursuant to Section 21733 or posted by the United States Department of Agriculture under the Packers and Stockyards Act of 1921 (7 U.S.C. Sec. 181 et seq.).
Out-of-state when accompanied by proper documents.
All cattle shipped pursuant to Section 21057 shall be accompanied by one of the following:
A bill of sale on an approved form giving the date of sale, the loading point, the name and address of the owner or consignor or both, the destination, the number of animals, the certificate number on which the animals were inspected into the feedlot, the lot number, if any, the name and address of the buyer, the name of the transporter or carrier and the license number of the vehicle used to transport the animals, and the signature of the owner or his or her authorized agent.
A certificate of consignment on an approved form giving the date of sale, the loading point, the name and address of the owner or consignor or both, the destination, the number of animals, the certificate number on which the animals were inspected into the feedlot, the lot number, if any, the name and address of the buyer, the name of the transporter or carrier and the license number of the vehicle used to transport the animals, and the signature of the owner or his or her authorized agent.
A brand inspection certificate or, for states with no inspection, a bill of sale or health certificate.
Inspection is not required for pasture-to-pasture movement in the following cases:
When the cattle are moved or transported only between points in the same modified point-of-origin inspection area.
When the cattle are moved or transported across a modified point-of-origin inspection area boundary which bisects the ranch or property of the owner and shipper of the cattle.
When cattle are moved or transported only between points within a full point-of-origin area.
When cattle are moved or transported across a modified point-of-origin inspection area boundary in accordance with regulations adopted by the director which specifically allow the cattle to move under a permit for a distance not to exceed 40 miles from loading point to destination. The director may establish a fee for the permit for a 12-month period. The permit fee shall not exceed two hundred dollars ($200).
When female cattle of the dairy breeds are moved or transported from one grazing or pasture area to another grazing or pasture area and the areas are owned or controlled by the same person. However, this movement shall be accompanied by a certificate of ownership or other proof of ownership document.
The provisions of subdivision (i) of Section 21051 shall take precedence over this section.
This section does not apply to cattle entering a registered feedlot.
Inspection is not required in cases where the cattle being moved or transported are dairy calves, and such calves meet all of the following classifications:
The calves were born on a dairy farm as defined in Section 32505.
The calves were born to cows of a recognized dairy breed.
The umbilical cord is still a part of, and attached to, the navel of the calf.
The calves will not be moved or transported:
Out of the state.
To a licensed slaughterhouse in this state.
To a public saleyard or public cattle sale market in this state that is licensed pursuant to Section 21733 or posted by the United States Department of Agriculture under the Packers and Stockyards Act of 1921 (7 U.S.C. 201 et seq.).
Nothing in this section shall prohibit any inspector or peace officer from inspecting any calves when such inspection is necessary in accordance with the provisions of Sections 20432, 20435, 20436, and 20438.
Inspection is not required in cases where cattle are sold or ownership is transferred under all of the following circumstances:
The individual or entity with a controlling interest in the cattle remains unchanged.
The cattle will not be moved out of state or out of a modified point-of-origin inspection area.
The cattle are associated with either a registered brand or dairy exemption number.
All persons who have ownership in the cattle, including both the transferor and the transferee, shall, within 30 days of ownership transfer, self-certify, under penalty of perjury, to the department as to their ownership in the cattle on a form prescribed by the department.
The department may charge a fee to cover the reasonable costs of processing the form identified in subdivision (b), but the fee shall not exceed fifty dollars ($50) or the department’s actual costs of conducting these activities.
An owner of cattle that is otherwise exempt from inspection pursuant to this section may elect to have that cattle inspected pursuant to Section 21051.
A violation of this section shall be subject to the penalties described in Section 21051.3.
It is unlawful for any person to move or transport any calves exempt from inspection pursuant to Section 21060 without preparing the bill of sale or consignment that is required by Sections 21702 and 21703. Such bill of sale or consignment shall accompany the calves and be retained by the receiver of the calves for at least one year, and such documents shall be presented to any inspector or peace officer upon demand.
The director may make regulations which govern the brand inspection of cattle and hides at slaughterhouses. The regulations may provide for an inspection schedule at each slaughterhouse and include provision for inspection in addition to the basic inspection schedule. Additional inspection services shall be provided on a reimbursement basis at the expense of the slaughterer requesting the additional service and shall not be an added charge to the consignor or seller of the livestock. The fees for the additional service shall be established by regulation.
All cattle shipped to a registered feedlot, licensed slaughterhouse, or licensed or posted livestock salesyard or market in this state for inspection at destination pursuant to this chapter shall be accompanied by a bill of sale, or certificate of consignment. The original document shall be presented to the inspector prior to the inspection of the cattle.
A copy of the document required by Section 21062 shall be kept on file in the office of the registered feedlot, licensed slaughterhouse, or salesyard or market for a period of one year after the transaction.
The chief may issue an annual permit to allow cattle to be transported out of this state without the brand inspection required pursuant to this article under all of the following conditions:
The cattle are moved for pasture purposes.
The cattle are moved a distance of not more than 50 miles from the point of origin to the point of destination.
There is no change of ownership of the cattle.
The department may charge a fee to cover its costs in issuing and renewing the annual permit. The fee may not exceed one hundred dollars ($100).
The chief may, at any time, revoke a permit and require a brand inspection if he or she determines that this action is necessary to enforce this division.
The secretary may issue a special permit to allow cattle to be transported out-of-state directly for immediate slaughter only, without the brand inspection required pursuant to this article, if all of the following conditions exist:
The cattle were inspected previously in a registered feedlot.
The cattle are transported to a licensed slaughterer.
The cattle are accompanied by a permit document issued by the secretary.
The secretary may charge a fee to cover the costs of issuing or renewing an annual permit. The fee may not exceed one hundred dollars ($100).
The secretary may, at any time, revoke the permit and require a brand inspection if the secretary determines that this action is necessary to enforce this division.
The director may issue an annual release permit to allow cattle to be transported into another state without brand inspection if all of the following conditions exist:
The state of destination is contiguous to California and it has entered into an inspection agreement with California.
The shipping point is not more than 50 miles from the destination.
The cattle are transported to a public posted stockyard or saleyard.
The cattle are accompanied by a permit document issued by the director.
The director may charge a fee to cover the cost of issuing or renewing the permit in an amount not to exceed one hundred dollars ($100).
The director may, at any time, revoke the permit and require brand inspection if the director determines that this action is necessary to carry out the enforcement of this chapter.
The secretary may issue an annual exhibition permit to allow cattle to be transported out of the state during the permit year without the inspection required pursuant to this article, if all of the following conditions are met:
The cattle are inspected before issuance of the permit.
The cattle are only moved for exhibition purposes.
There is no change in ownership of the cattle.
The cattle return to the state of origin.
The cattle have an official form of identification.
The department may charge a fee to cover its costs in issuing and renewing the annual exhibition permit. The fee shall not exceed ten dollars ($10) per head.
The department shall accept the exhibition permits of other states and allow cattle to return to their state of origin under those permits without an inspection.
The secretary may, at any time, revoke an exhibition permit if the chief determines that this action is necessary to enforce this division.
ARTICLE 2. Feedlot Registration [21081. - 21084.]
The operator of a feedlot as defined in Section 20013 shall register each such feedlot with the director.
Registration consists of filing of a registration application with the bureau which shall show the location of the feedlot, its capacity, the names and addresses of the owners, and any other information which the director may require.
This registration shall be filed and approved by the director in order for a feedlot to receive cattle for inspection in accordance with subdivision (d) of Section 21051 and subdivision (a) of Section 21053, or to ship cattle in accordance with subdivision (a) of Section 21057.
Feedlots operating on and after the effective date of this section shall have 15 days from that date in which to apply for registration.
The director may cancel the registration of any feedlot from which cattle were shipped without the inspection required by subdivision (d) of Section 21051. When such cancellation occurs, the cattle from any such feedlot shall be inspected at slaughter in accordance with subdivision (e) of Section 21051.
The director may cancel the registration of any feedlot in which the operator has not fed cattle for slaughter for a period of 90 days. When a feedlot has had its registration canceled for this reason, a new application shall be submitted to the Bureau of Livestock Identification for registration when cattle are again fed for slaughter.
ARTICLE 3. Modified Point-of-Origin Inspection Areas [21111. - 21112.]
The secretary shall, by regulation, establish and maintain a modified point-of-origin inspection area whenever the cattle producers owning cattle in the affected area request the action by a two-thirds vote of those cattle producers, who are either property taxpayers, lessees, or residents of the affected area and who are present at a public hearing held at a central location in the area. The secretary shall hold a statewide hearing within sixty days of the passage of this act, and upon written request or petition signed by at least 25 cattle producers owning cattle in the affected area thereafter, to determine what areas wish to consider establishing a modified point-of-origin inspection area. Based on the testimony presented at these hearings, the secretary shall conduct local hearings in those areas where significant interest exists. The cost of each local hearing shall be borne by the producers in the area based on a written agreement between producers in the area and the secretary. Notice of the local hearing shall be publicized by the department at least 30 days prior to the hearing date through local publications and radio; shall be posted at all sales yards, slaughter plants and feedlots in the area; and shall be circulated to all known beef cattle and dairy cattle associations having producer members in the areas. The two-thirds vote of those attending pertains to these local hearings.
Cattle producers owning cattle in the affected area may, upon written request or petition signed by at least 25 cattle producers owning cattle in that area, request that the secretary repeal regulations establishing a modified point-of-origin inspection area pursuant to Section 21111 in the manner prescribed by the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
A modified point-of-origin inspection area may consist of one or more counties or geographical areas.
ARTICLE 4. Point of Origin Inspection Area [21141. - 21142.]
The secretary shall, by regulation, establish and maintain a full point-of-origin inspection area whenever the cattle producers owning cattle in the affected area request this action by a two-thirds vote of those present at a public hearing held at a central location in the area. The secretary shall hold the local public hearing upon the receipt of written requests or petitions signed by at least 25 cattle producers in the affected area.
A full point-of-origin inspection area may consist of one or more counties or geographical areas.
Cattle producers owning cattle in the affected area may, upon written request or petition signed by at least 25 cattle producers owning cattle in that area, request that the secretary repeal regulations establishing a full point-of-origin inspection area pursuant to Section 21141 in the manner prescribed by the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
ARTICLE 5. Procedure [21171. - 21175.]
Inspection of cattle consists of the examination of the cattle for all brands and marks, and, in the case of unbranded cattle, for natural marks, sex, and breed. It also includes the issuance of a certificate of inspection.
If inspection is required, the person that requests the inspection shall notify the inspector. The inspector shall make his inspection as soon as practicable after he is notified.
The director may, by regulation, provide that any person who ships any cattle from a modified point-of-origin inspection area, for inspection at destination, is required to notify the local brand inspector prior to shipment of such cattle, if he finds, following a public hearing in the area, such requirement is needed to protect cattle owners from losses by theft or straying of their livestock.
The brand inspection of cattle as provided for in this chapter shall be conducted in such a way as to minimize the disruption of normal cattle raising operations. Both the feedlot management and personnel and the brand inspector shall jointly handle the cattle at a time and in a manner that is not detrimental to the livestock involved. However, nothing in this section shall prevent any cattle from being brand inspected pursuant to Section 21051.
If requested to do so, the person in charge of the animals shall furnish the inspector with a list of the brands and marks on them to the best of his ability.
If, upon inspection, there is found any animal which does not bear the recorded brand of the person that presents the animal for inspection, such person shall show the inspector a bill of sale, certificate of inspection, dairy exemption number, or other proof of ownership of such animal.
The shipper or person in charge of cattle being shipped or offered for inspection is responsible for sorting out stray animals and identifying such strays to the brand inspector prior to inspection.
Any expense for feed and transportation incurred in the recovery of stray animals shipped without inspection, or shipped for inspection at destination, without the knowledge and consent of the owner, shall be recovered from the person responsible for the shipment.
Any person failing to cut out or identify stray animals which are shipped without inspection or shipped for inspection at destination shall pay a penalty upon a first violation of fifty dollars ($50) for each animal; upon a second violation within the same 12-month period, a penalty of one hundred dollars ($100) for each animal; upon a third violation within the same 12-month period, a penalty of two hundred dollars ($200) for each animal; and upon the fourth or subsequent violation within the same 12-month period, a penalty of five hundred dollars ($500) for each animal to the Bureau of Livestock Identification which is in addition to any other penalty provided by law.
For purposes of determining subsequent violations, each shipment of cattle to a single destination point in one calendar day constitutes one violation.
ARTICLE 6. Certificate of Inspection [21201. - 21208.]
It is unlawful for any inspector to issue a certificate of inspection unless he personally made the inspection between sunrise and sunset.
If satisfied that the person that offers the cattle for inspection is in lawful possession of them, the inspector shall issue a certificate of inspection.
The certificate of inspection shall be signed by the inspector and shall show all of the following:
The place and date of inspection and the number of animals inspected.
The sex, the brand, if any, on each branded animal recorded in the name of the owner of the animal, or the marks and brands under which the animal was offered for inspection, and such additional marks and brands as may be required by the chief.
The sex, natural marks, and breed of unbranded animals.
If the animals are to be transported, the names of the shipper and of the consignee and the origin and destination of the shipment.
If the animals are to be transported, the length of time necessary to move the shipment between the point of inspection and the point of destination. The inspector shall determine the amount of time needed for this purpose, based upon the information provided to him at the time of inspection.
Such certificate shall only be valid for transportation purposes during the period of time specified thereon by the inspector.
One copy of the certificate of inspection shall accompany the shipment.
Unless the inspector who issued the certificate is notified and approves, it is unlawful for any person to remove any animal and substitute another for it, or to add other animals or take animals away from any lot of cattle for which a certificate has been issued until after the shipment or slaughter is completed.
Cattle which are shipped for slaughter from either of the following points of origin may be inspected by the director without any charge prior to slaughter on a monitoring basis sufficient to assure that uninspected cattle are not being slaughtered:
Registered feedlots.
Public salesyards or livestock markets in this state that are licensed by the state or posted by the United States Department of Agriculture under the Packers and Stockyards Act.
The director shall adopt the regulations necessary to implement this section.
In addition to any other penalty, any person who slaughters cattle at a slaughter plant without the brand inspection required by this chapter, shall pay a penalty fee of twenty-five dollars ($25) for each head of cattle so slaughtered.
ARTICLE 7. Duplicate Brand Inspection Certificates [21231. - 21238.]
Unless the shipment is released pursuant to Section 21233 or 21744, no common carrier, or owner or driver of any conveyance shall receive for transporation or transport any cattle until they have been inspected, and the carrier, owner, or driver has been furnished with duplicate brand inspection certificates that are signed by an inspector, which show all of the following:
Any brands and marks.
The names of the shipper and consignee.
The origin and destination of the shipment.
The duplicate brand inspection certificate shall accompany to destination any cattle which are transported over a public thoroughfare.
The chief may release, or provide for the release of, cattle without the inspection which is required by Section 21231, but inspection shall be made en route or at the point of destination. The owner shall keep such cattle segregated until they are inspected.
Any brand inspection certificate which has been altered, defaced, or changed is void. An inspector may, however, indicate on an inspection certificate any number of cattle which are sold by the holder of the inspection certificate, if he signs and dates such alterations on the inspection certificate.
Except as otherwise provided in Section 21236, it is unlawful for any person to alter, deface, or change any brand inspection certificate.
Except as otherwise provided in Section 21236, it is unlawful for any person to possess, or present to an inspector or any peace officer, any brand inspection certificate that has been altered, defaced, or otherwise changed.
ARTICLE 8. Shipping Permits [21261. - 21261.]
The chief may provide for the issuance of shipping permits for inspected cattle which are shipped by railroad, or for cattle that are covered by one certificate of inspection, which are transported in more than one conveyance.
ARTICLE 9. Fees [21281. - 21292.]
All brand inspection fees are due and payable at the time of the inspection. The amount which is due for all inspections that are made shall be paid to the director within 30 days after the issuance of the brand inspection certificates by the inspector for the cattle which were inspected, unless there is on deposit with the bureau a bond in an amount and form which is approved by the chief or a cash deposit to cover the payment of the fees.
In addition to other applicable fees, as provided by this chapter, the secretary may impose a service charge in an amount not to exceed twenty-five dollars ($25) for an inspection of 29 head of cattle or less at each site, or a service charge of fifteen dollars ($15) for an inspection of 30 head of cattle or more at each site.
Any fees which are due and payable for brand inspections which are not paid as required by this article may be recovered by the director pursuant to Section 281. Inspection services may be refused for nonpayment of prior services which have been rendered.
When the brand inspection fees due are not paid in accordance with Section 21281, a penalty assessment shall be added to such fees and collected as follows:
When the brand inspection fees due are greater than twenty-five dollars ($25), then 20 percent of such fees shall be added to the inspection fees.
When the brand inspection fees due are twenty-five dollars ($25) or less, five dollars ($5) shall be added to the inspection fees.
Unless otherwise provided in this article, inspection fees shall be paid at the point of inspection.
The fee for inspection is one dollar and sixty cents ($1.60) for each animal that is inspected, except as follows:
The fee for inspection at a registered feedlot, as defined in Section 20015, is eight-five cents ($0.85) for each animal that is inspected.
The fee for inspecting an animal that originated in another state and was shipped into this state for feeding direct to a registered feedlot is sixty cents ($0.60) for each animal that is inspected.
The fee for inspecting an animal that was inspected at a posted stockyard, or posted saleyard, in this state, and shipped direct to a registered feedlot, is sixty cents ($0.60) for each animal that is inspected.
Except as otherwise provided in this article, on all private treaty transaction inspections, as defined in Section 20026, regardless of destination, the fee of one dollar and sixty cents ($1.60) shall be paid at the point of inspection for each animal that is inspected.
A charge shall not be made for the inspection of suckling calves which are accompanying their mothers if they are transported for purposes other than for sale or slaughter and without a change in ownership.
The fee is one dollar and sixty cents ($1.60) for the inspection before sale of each animal at a public saleyard that is posted by the Secretary of Agriculture of the United States or at a public saleyard if the animal originated in another state and it was shipped to this state, consigned to that public stockyard or public saleyard.
In a modified point-of-origin inspection area, as provided in Section 21111, the fee for the inspection of cattle, other than suckling calves that are accompanying their mothers, is one dollar and sixty cents ($1.60) per head if the cattle are transported out of the area for purposes other than sale or slaughter and no change of ownership is involved.
For cattle, other than suckling calves accompanying their mothers, transported out of the state for purposes other than sale or slaughter and where no change of ownership is involved, the inspection fee is one dollar and sixty cents ($1.60) per head.
The fee for the inspection of cattle which originated in any county or geographical area where a full point-of-origin inspection is maintained pursuant to Article 4 (commencing with Section 21141) shall be established by the director, upon recommendation of the Livestock Identification Advisory Board, in an amount sufficient to cover the actual costs incurred by the bureau in performing the inspection. A fee shall not be charged for any suckling calves which are accompanying their mothers if they are not shipped for sale or slaughter and no change of ownership is involved. Cattle moving out of a full point-of-origin area to a destination inspection point are exempt from the destination inspection fee. However, these cattle are subject to further inspection.
Any person who receives cattle from any cattle sale market, either public or private, including any public stockyard where sales of cattle are held, may, upon request and upon payment of a fee of eighty cents ($0.80) per head before accepting delivery of any cattle from that market or stockyard, have a reinspection of the cattle.
Lowered by the director, based upon a finding and recommendation of the Livestock Identification Advisory Board, whenever they determine that the cost of administering and enforcing the provisions of this division may be maintained with a lower fee.
Increased, by an amount not to exceed 20 percent of the statutory fee, by the director upon the recommendation of the Livestock Identification Advisory Board whenever they determine that the costs of administering and enforcing the provisions of this division require a greater fee. The advisory board must approve any increase in fees by a two-thirds vote of its entire membership.
The Bureau of Livestock Identification is authorized to enter into a Memorandum of Understanding with any purebred cattle producer or breeder for purposes of pre-inspection of purebred bulls, or 4H or Future Farmers of America project calves, that are for sale within the state.
The Memorandum of Understanding shall contain, but is not limited to, all of the following:
All bulls and project calves for sale must be identified.
All bulls and project calves must be placed into and remain in, an enclosure designated as a selling pen.
All bulls and project calves shall be inspected and identified by a Brand Inspector.
When bulls or project calves are sold, the seller shall furnish the purchaser with a fully completed Bill of Sale or Consignment, including identification numbers for all bulls or project calves.
The seller shall mail a duplicate copy of the Bill of Sale or Consignment to the Brand Inspector with a stamped envelope bearing the purchaser’s complete name and address.
The Brand Inspector shall then issue a Brand Inspection Certificate and mail it to the purchaser.
Brand inspection fees shall be paid on each certificate issued. The Brand Inspector shall collect fees for the certificates as they are issued.
The Brand Inspector shall be contacted and a Brand Inspection Certificate issued before the animal leaves the seller’s premises for any bull or project calf that is sold and is to be transported out of the state.
Each Memorandum of Understanding shall expire one year from the date that the completed document is dated.
There shall be signature blocks for the producer or breeder, the Brand Inspector, and the Regional Brand Inspector, and dates for when the signatures are made. There shall also be a date for the document.
This memorandum of understanding may be discontinued by the Chief of the Bureau of Livestock Identification upon a finding by the chief that any provision is not being met, or at any time that the chief determines that further action is necessary in order to satisfy brand inspection requirements and the integrity of the program set forth in Chapter 6 and Chapter 7 of Division 10.
ARTICLE 10. Records and Memorandums [21321. - 21323.]
The inspector shall make a memorandum which shows the number, sex, brands, or marks on each animal which is inspected, and the names of the owner or claimant, consignor, and consignee.
The memorandum of the inspection shall be retained for record purposes by the inspector for at least two years after the date of the inspection.
The bureau shall maintain for a period of five years a file of brand inspection certificates in such manner as to disclose the number of cattle which have been inspected.
CHAPTER 7. Inspection of Hides and Carcasses [21451. - 21591.]
ARTICLE 1. Requirements [21451. - 21459.]
Except as otherwise provided in this chapter, inspection of carcasses with the hide on and of hides shall be made in the same manner as inspection of cattle pursuant to Chapter 6 (commencing with Section 21051) of this division.
The chief may provide for the release of hides or carcasses from inspection in cases in which inspection would serve no useful purpose.
A new inspection need not be made of the hide or carcass of an animal which was previously inspected as follows:
Inspected pursuant to subdivision (e) of Section 21051.
Every person not a licensed slaughterer that slaughters any cattle or calves and does not send the carcass and hide to a licensed frozen food locker plant pursuant to Section 22003 shall do all of the following:
Keep in his possession the hide, with the brands attached to it, without any alteration or disfiguration, until the hide is inspected or released.
Exhibit the hide to any inspector or peace officer on demand.
A person shall not have in his possession a carcass or any meat from a carcass which was not slaughtered by a licensed slaughterer, unless he has in his possession and exhibits to any inspector or peace officer on demand one of the following:
The hide of the animal from which the meat was obtained, with the ears and the brands attached to it, without alteration or disfiguration.
A certificate of inspection or release of the hide or of the carcass with the hide on it, which was issued pursuant to this article.
A person shall not remove any evidence of inspection from a hide until after it has been partially tanned.
A person shall not sell, give away, deliver, transport, buy, accept, or receive the hide of any animal unless the hide has been inspected or released.
A person shall not obliterate, alter, or remove a brand which is on a hide, or burn or in any manner destroy the hide until it has been inspected or released.
ARTICLE 2. Procedure [21482. - 21482.]
If, upon inspection, there is found any carcass or hide which does not bear the recorded brand of the person that presents the carcass or hide for inspection, such person shall show the inspector a bill of sale, certificate of inspection, or other proof of ownership of such carcass or hide.
ARTICLE 4. Duplicate Brand Inspection Certificates [21531. - 21532.]
Unless the shipment is exempted under Section 21453 or released pursuant to Section 21532, no common carrier, or owner or driver of any conveyance shall receive for transportation or transport any hide or carcass until it has been inspected and the carrier, owner, or driver has been furnished with a duplicate brand inspection certificate that is signed by an inspector, which shows all of the following:
Any brand and mark.
The name of the shipper and consignee.
The origin and destination of the shipment.
The chief may release, or provide for the release of, any carcass or hide without the inspection which is required by Section 21531. Inspection shall, however, be made en route or at point of destination.
ARTICLE 5. Fees [21561. - 21565.]
All brand inspection fees are due and payable at the time of the inspection. The amount which is due for all inspections that are made shall be paid to the inspector within 30 days after the issuance of the brand inspection certificates for the hides or carcasses which were inspected unless there is on deposit with the bureau a bond in an amount and form which is approved by the chief or a cash deposit to cover the payment of those fees.
Any fees which are due and payable for brand inspections that are made which remain unpaid or are not paid as required by this article may be recovered by the director pursuant to Section 281. Inspection services may be refused for nonpayment of prior services which have been rendered.
Except as otherwise provided in this article, the fee shall be paid at the point of inspection and is two dollars and ten cents ($2.10) for each carcass or hide that is inspected.
The fee for the inspection of each carcass or hide shall be two dollars and ten cents ($2.10) for each carcass and hide originating in those counties or geographical areas where a point-of-origin inspection is maintained pursuant to Article 4 (commencing with Section 21141) of Chapter 6.
A charge shall not be made for the inspection of any hide which has been previously inspected pursuant to this chapter.
ARTICLE 6. Reports [21591. - 21591.]
The bureau shall maintain for a period of five years a file of brand inspection certificates in such manner as to disclose the number of carcasses or hides which have been inspected.
CHAPTER 8. Sale and Gift of Cattle, Their Carcasses and Hides [21701. - 21751.]
ARTICLE 1. Bills of Sale [21701. - 21710.]
As used in this article, “animal” includes:
A bovine animal.
The carcass of a bovine animal from which the hide has not been removed.
The hide of a bovine animal.
No person shall buy, sell, or accept any animal, unless the seller or donor gives, and the buyer or donee receives, at the time of the delivery of the animal, a written bill of sale or written instrument from the owner, or his or her agent, that gives the number, kind, breed, and sex, and, if branded, the brand and location of the brand on each animal.
Any person who sells or otherwise transfers title to any cattle or calves to another person shall remit to the director within 30 days of that sale, the beef council fees required under Section 64691, together with a copy of the bill of sale, unless these fees have been collected pursuant to a brand inspection as provided for in Section 64691.7.
Except as provided in Section 21058, bills of sale or consignment required by any provision of Division 9 (commencing with Section 16301) or Division 10 (commencing with Section 20001) shall be made on the “Bill of Sale or Consignment” form approved by the director, and shall state all of the following information for animals sold or consigned:
The date of sale or consignment.
The loading point.
The name and address of the owner or the consignor, or both.
The destination.
The number and description of the animals including their brands, if any.
The name and address of the buyer or consignee, or both.
The name of the transporter or carrier and the license number of the vehicle used to transport the animals.
The signature of the owner or his authorized agent.
The failure of the seller or donor to give a written bill of sale or written instrument to the buyer or donee has no effect upon the validity of any sale or contract of sale or gift of an animal nor upon the rights of either the buyer, donee, seller, or donor.
If by any provision of this division a certificate, bill of sale, or other document is required to accompany any shipment of animals, nothing in this division shall be construed to make the carrier, driver, or any person other than the shipper responsible for the accuracy of the information required in the document.
The person transporting is, however, responsible for having the documents required by this division in possession during shipment, and the driver shall deliver such document to the person receiving the cattle at destination so it can be presented to the inspector prior to inspection.
Any invoice of sale or bill of sale which has been altered, defaced or changed is void. An inspector may, however, indicate on a bill of sale any number of cattle which are sold by the holder of the bill of sale, if he initials and dates such alterations on the bill of sale.
Except as otherwise provided in Section 21706, it is unlawful for any person to alter, deface or change any invoice of sale or bill of sale.
An auctioneer shall not offer any milking cow for sale at any auction sale of cattle unless the milking cow has been milked out and stripped within 12 hours of the time such offer to sell the cow takes place.
Except as otherwise provided in Section 21706, it is unlawful for any person to possess, or to present to an inspector or peace officer, any invoice of sale or bill of sale that has been altered, defaced, or otherwise changed.
ARTICLE 2. Public Salesyards [21731. - 21751.]
Stockyards which are posted by the United States Department of Agriculture under the Packers and Stockyards Act (7 U.S.C., Sec. 181 et seq.), agricultural fairs, 4-H Clubs, Future Farmers, Junior Farmers, and associations which sponsor purebred cattle sales for their members are exempt from the license provisions of this article.
The license and bond provisions of this article do not apply to the sale by an auctioneer of cattle on the premises of the owner of the cattle whether or not such a sale includes the sale of cattle of other livestock owners in the vicinity of such premises. If, however, an animal which does not belong to the owner of the premises is auctioned, the auctioneer shall specifically designate the person that is the owner of the animal.
A person shall not engage in the business of selling cattle at a public salesyard unless he has done all of the following:
Obtained a license from the bureau to carry on such business at each such salesyard.
Executed for each such salesyard a bond to the state in the sum of one thousand dollars ($1,000).
The bond required pursuant to Section 21733 is subject to the approval of the director and shall be conditioned as follows:
That the person shall not sell any cattle unless he is the owner of the cattle or is authorized to sell them by the owner.
That, if he does sell any cattle which he does not own without authorization from the owner, he shall, in addition to all other statutory penalties, pay the value of the animals.
Any amount which is recovered upon the bond shall be paid to the owner of the animal.
The bureau shall grant to every applicant that complies with this article and the regulations which are adopted pursuant to it, a separate license to operate each salesyard for the balance of the current calendar year upon the payment of a fee of one hundred dollars ($100) for each salesyard.
A permit shall be granted by the bureau to change the address or location of a previously licensed salesyard. No additional license fee or bond shall be collected for issuing a permit to change the address or location.
Each such license shall be renewed on or before the first day of each succeeding calendar year. The renewal fee is one hundred dollars ($100) for each salesyard.
Any person that is engaged in the business of selling cattle on consignment at any public stockyard, public salesyard, or public cattle sales market shall prepare a certificate of consignment on or before the day of a sale which contains all of the following:
The name and address of the owner.
The name and address of the consignee.
A description of each animal which shall indicate the sex, the breed and, in the case of branded animals, the brand and brand location.
Signature of the owner or his agent.
The certificate of consignment shall be kept by the seller for a period of one year after the date of sale. Any such certificate shall be exhibited on the demand of any peace officer or any agent of the department.
Cattle shall not be released from a public stockyard, public salesyard, public cattle sales market, or any other public consignment sale or private auction sale unless they are accompanied by a brand inspection certificate or by a press-numbered bill of sale or a press-numbered certificate of sale that is issued and signed by a representative of the salesyard, as agents for the consignor.
The press-numbered bill of sale or press-numbered certificate of sale that is required pursuant to Section 21744 shall contain all of the following information on a form that is approved by the chief:
Date of sale.
Name and address of the buyer.
Description of each animal that is sold that includes its brands and brand location, sex, and breed of unbranded animals.
Origin and destination of the animals.
The name of the person conducting the sale.
The press-numbered bill of sale or press-numbered certificate of sale shall be kept by the seller for a period of one year after the date of sale. Any such document shall be exhibited on the demand of any peace officer or any agent of the department.
The director may make regulations which govern the brand inspection of cattle at public salesyards, public stockyards and at private cattle auction sales. The regulations may provide a schedule of fees to cover the cost of inspection of cattle at such salesyards and stockyards, and private sales. In establishing the fee schedule the director shall take into consideration the brand inspection fees collected. The payment of the fees established by the director shall be the obligation of the operator of the salesyard, stockyard, or private sale and shall not be an added charge to the consignor or seller of the livestock.
It is unlawful for any person to sell cattle at a public salesyard or release cattle from public salesyards unless an inspector has made a brand inspection of animals which are consigned or shipped to such yard.
It is unlawful for any person to release any cattle which are sold at public auction unless the required brand inspection certificate has been prepared by the inspector in advance of the release of the cattle from the premises where the auction was conducted.
Except as otherwise provided in Section 21750, any person that engages as a business in the sale of cattle at a public salesyard without a license is, in addition to all other penalties, liable to a penalty of twenty-five dollars ($25) and an additional penalty of one dollar ($1) per day for every day he has operated a public salesyard without a license.
Any public cattle salesyard operator that has had a previous license and continues to operate a public salesyard after the expiration of his license is not required to pay penalties pursuant to Section 21749 if he applies for a new license within 30 days after the expiration of his license.
If cattle sold at a public auction have a dairy exemption number, the auctioneer shall announce at the sale that those cattle are being sold under the dairy exemption number provision and must go directly to slaughter.
Any person who buys cattle under a dairy exemption number at a public auction and fails to send those cattle directly to slaughter is guilty of a public offense punishable by a fine not exceeding one hundred dollars ($100) per incident for the first violation, not exceeding two hundred fifty dollars ($250) per incident for a second violation, and not exceeding five hundred dollars ($500) per incident for a third or subsequent violation. These penalties shall take effect on July 1, 2007. Prior to that date, the department shall notify salesyard managers and dairy producers at salesyards that it is a violation of law to neglect to send cattle covered by this section directly to slaughter, and issue oral or written warnings for noncompliance.
CHAPTER 9. Injury to, or Theft of, Cattle [21851. - 21886.]
ARTICLE 1. Driving Cattle From Their Range [21851. - 21856.]
As used in this article, “range” means the enclosed or unenclosed lands outside of cities, towns, and villages in this state, whether of the public domain or in private ownership, upon which by custom, license, or otherwise, cattle are kept or permitted to roam and feed.
Any person that is not the owner or does not have the right of possession of any cattle, that is found driving such cattle off its usual range, without the consent of the owner, is guilty of grand theft.
Notwithstanding any other law, in any action for the wrongful taking, possessing, harboring, or transporting of cattle, for the driving of cattle off their usual range, or for the killing or slaughter of cattle without the consent of the owner or the person lawfully in possession of such cattle, the detriment caused thereby to the plaintiff shall be four times the value of the cattle at the time of the taking, possessing, harboring, transporting, or driving, or killing or slaughtering thereof, with interest from that time, plus an amount in fair compensation for the time and money properly expended by the plaintiff in pursuit of the cattle.
This section shall not apply to a secured party, as defined in paragraph (73) of subdivision (a) of Section 9102 of the Commercial Code, when taking possession of cattle pursuant to a security agreement if one of the following conditions has been met prior to movement of any such cattle:
The secured party has requested the inspection required by subdivision (a) and due to an insufficient amount of time to inspect the cattle prior to their movement, the brand inspector agrees to allow movement of the cattle, with inspection of the cattle to be made at their first destination prior to their commingling with any other cattle.
The inspection performed pursuant to subdivision (a) or (b) shall be conducted for the sole purpose of assuring that the cattle that are moved are the same cattle subject to the security agreement.
In a proper case, which shall include the killing or slaughter of cattle, exemplary damages may be awarded to the plaintiff as provided in Section 3340 of the Civil Code.
The commencement of any criminal prosecution for grand theft of cattle shall not preclude or prevent the commencement of any civil action for damages, as specified in this section.
The judge before whom any person is tried for the wrongful taking, possessing, killing, or slaughter of cattle without the consent of the owner or the person lawfully in possession of those cattle may, upon the conviction of the person tried, order the forfeiture of any device or apparatus that is designed to be, or is capable of being, used to commit the offense charged, and which was used in committing the offense charged. “Device or apparatus” includes, but is not limited to, any vehicle that is used or intended for use in taking, possessing, harboring, or transporting the cattle.
Any device or apparatus ordered forfeited shall be sold, used, or destroyed by the department.
The provisions in this section authorizing a judge to order the forfeiture of a device or apparatus are also applicable to the judge, referee, or juvenile hearing officer in a juvenile court action brought under Section 258 of the Welfare and Institutions Code.
For purposes of this section, a plea of nolo contendere or no contest, or forfeiture of bail, constitutes a conviction.
Neither the disposition of the criminal action other than by conviction nor the discretionary refusal of the judge to order forfeiture upon conviction impairs the right of the department to commence proceedings to order the forfeiture of property pursuant to any other provision of law.
ARTICLE 2. Livestock Killed or Injured on Railroads [21881. - 21886.]
If any animal is killed or injured upon the right-of-way of any railroad in this state, the owner or operator of the railroad equipment injuring or killing the animal shall report it as soon as possible, but in no event later than 96 hours after the collision.
The report shall contain all of the following:
A description of the animal.
The brands and marks and the position of the brands and marks, if any, upon the animal.
The location of the animal.
The location of the point of collision, listing the county, the nearest post office, and milepost.
The report shall be given by telephone, telegraph, or mail to the owner of the animal if known. If the owner of the animal is unknown, the report shall be given to the office of the sheriff or brand inspector whose office or established headquarters is, to the knowledge of the railroad employee who makes the report, the nearest to the place of the collision.
Reports by telephone shall be confirmed within 24 hours by telegraph or mail to the office of the sheriff. A copy shall be sent to the bureau.
Upon receiving the report the officer or brand inspector shall attempt to ascertain the ownership of the dead or injured animal and notify the owner of the death or injury of the animal.
It is unlawful for any person to bury, conceal, or destroy any animal, or do anything to the carcass of any animal, which will tend to make ascertainment of its ownership more difficult until the owner has been notified or the officer or brand inspector has identified the brands and marks, if any, and their position upon the animal.
CHAPTER 10. Slaughter of Cattle [22001. - 22086.]
ARTICLE 1. Generally [22001. - 22010.]
Except as otherwise provided in this chapter, a person shall not slaughter, or request or hire any person that is not a licensed slaughterer to slaughter, any bovine animal.
The Legislature finds and declares that mobile slaughter operators who perform the service of slaughtering cattle for the owner of the cattle on the owner’s premises are not licensed slaughterers pursuant to this chapter. However, on and after January 15, 1998, a mobile slaughter operator shall be registered with the bureau as an unlicensed mobile slaughterer pursuant to Section 22037 and is subject to Section 22008.
Any producer of cattle may slaughter or have slaughtered for him on his own premises, in small numbers, cattle of his own production and raising on his own premises for use exclusively by him, members of his household and his nonpaying guests and employees.
Cattle which are slaughtered by or for the producer of the cattle at his premises and for his own consumption may be transported with the hide on, after complete removal of the viscera, head, and feet, to any licensed frozen food locker plant to be skinned, split, and quartered by the operator of the plant.
Carcasses and hides received by the licensed frozen food locker plant or processor shall be identified in a manner prescribed by regulation and inspected, or released, by the brand inspector. It shall be the responsibility of the person who slaughtered the animal to identify each carcass and hide. Operators of licensed frozen food locker plants or processors shall only receive a carcass when the hide and carcass have been properly identified in accordance with this provision. The director shall adopt the regulations reasonably necessary for implementing this section.
The skinning, splitting, and quartering of the cattle slaughtered pursuant to Section 22002 at a licensed frozen food locker plant are not required to be performed by a licensed slaughterer.
The licensed frozen food locker plant operator shall maintain a record of every transaction which involves uninspected meat for a period of five years. The record shall show the name of the producer of the cattle and the number of carcasses which were delivered by the producer.
Any owner or producer of livestock may have them inspected and slaughtered by a licensed slaughterer. The owner or producer may, thereafter, sell the meat from those livestock.
Every person that is not a licensed slaughterer that slaughters cattle shall do all of the following:
Keep a record in a book which he or she keeps for that purpose of all cattle that are slaughtered by him or her. The record shall include the name, address, and telephone number of the person for whom the cattle are slaughtered, a full description of the cattle, including the brands and marks, the date of slaughter, and the name and location of the food locker to which the slaughtered animal is, or the slaughtered animals are, delivered for butchering.
Exhibit the record book on demand of any inspector or peace officer.
Notify a brand inspector within 24 hours if he slaughters a bovine animal and does not deliver the carcass and hide to a frozen food locker plant licensed pursuant to Chapter 7 (commencing with Section 112500) of Part 6 of Division 104 of the Health and Safety Code.
Any person who is requested to custom cut or otherwise process for another person any meat from a bovine animal that was not slaughtered by a licensed slaughterer pursuant to Article 2 (commencing with Section 22031) of this chapter, or which was not slaughtered in accordance with either Section 22004 or 22008, shall, before cutting or processing the meat, notify a brand inspector that such meat has been received.
Any person receiving meat pursuant to Section 22009 shall keep a record in a book which he keeps for that purpose that discloses the following information on all such meat received:
The name, address, and telephone number of the person delivering the meat.
The license number of the vehicle used in delivering the meat.
The date the meat was received.
Such person shall keep these records for one year and shall exhibit the records upon demand of any inspector or peace officer.
ARTICLE 2. Licensed Slaughterers [22031. - 22049.]
A person shall not engage in the business of slaughtering cattle unless the person has been issued a grant of inspection by the United States Department of Agriculture Food Safety and Inspection Service, except that this requirement does not apply to rendering plants.
A mobile slaughter operator, as provided in Section 22001.5, shall file a registration with the bureau that shows the names and addresses of the owners of the unlicensed mobile slaughterer and any other information the secretary may require.
The registration shall be filed with the bureau before a mobile slaughter operator may slaughter cattle pursuant to Section 22001.5.
Every licensed slaughterer of cattle shall have on file in his office prior to slaughter and shall keep for one year after slaughter, the original bill of sale of cattle which are purchased by him or a consignment slip on cattle which are consigned to him or the certificate of inspection of all cattle which are slaughtered by him.
Every licensed slaughterer that slaughters cattle where inspection prior to slaughter is impossible or impractical shall keep a record which sets forth the name of the person from whom the cattle were purchased and identifies them as to color, age, weight, sex, and brand, if any. The record shall be open to inspection by any agent of the department or peace officer.
Every licensed slaughterer that does not have brand inspection prior to slaughter on each day on which he slaughters, and whose hides are not inspected during the month, shall on or before the 15th day of each month mail to the bureau a written report which shows in separate columns all of the following:
The number of calves, cows, steers, stags, and bulls which were slaughtered during the preceding calendar month.
The number which he slaughtered on each date.
From whom the animals were purchased.
The date of purchase.
The brands on branded cattle and the sex and breed of unbranded cattle.
It is unlawful for a licensed slaughterer to allow anyone to slaughter cattle at the licensee’s plant, except a person that is licensed to slaughter there or an employee of such person.
If a licensed slaughterer desires to change to another location, the person shall notify the bureau of the relocation.
It is unlawful for a licensed slaughterer to slaughter cattle at any place other than a slaughterhouse at which he is licensed to slaughter.
ARTICLE 3. Purchase and Sale of Meat [22081. - 22086.]
A wholesaler of meat shall not purchase the meat of any animal except from any of the following:
A licensed slaughterer.
Another wholesaler having an established place of business.
An owner or producer of livestock which are slaughtered pursuant to Section 22007.
A peddler or retailer of meat shall not purchase the meat of an animal from any person not known to him to be a licensed slaughterer, or a regular wholesale dealer in meat that has an established place of business, except that he may purchase from the owner or producer of an animal the meat of the animal if it was inspected and slaughtered pursuant to Section 22007.
Every peddler or retailer of meat that purchases the meat of any animal shall enter all of the following in a book which he keeps for that purpose and exhibit it on demand to any agent of the department or any peace officer:
The name and address of the person from whom the meat was purchased or obtained.
The date of purchase and the price which was paid.
An itemized description of the weight and quantity which was purchased.
The time and place of the delivery of the meat.
A person, other than a regular wholesaler of meat that has an established place of business or a licensed slaughterer, shall not give, sell, or deliver to any peddler of meat any part of the carcass of an animal.
This section does not apply to the meat of an animal inspected and slaughtered pursuant to Section 22007.
It is unlawful for any person to misrepresent the type, kind, or quality of a dressed carcass of any animal or part of such carcass, or the sex, age, or quality of any animal the meat of which is sold.
DIVISION 11. HORSES, MULES, BURROS, SHEEP, AND SWINE [23001. - 24134.]
CHAPTER 1. General Provisions [23001. - 23123.]
ARTICLE 1. Application [23001. - 23001.]
The provisions of this division, including the payment of fees, are applicable to all state and county institutions which are engaging in livestock operations.
ARTICLE 2. Regulations [23021. - 23021.]
The director shall enforce this division. He may make such regulations as are reasonably necessary for such enforcement.
ARTICLE 3. Investigations and Seizures [23041. - 23045.]
The director may make any necessary investigations relative to reported violations of this division, pursuant to Article 2 (commencing with Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the Government Code.
Any agent of the department or any peace officer may, for the purpose of making an investigation, do any of the following:
Stop any conveyance which is transporting on any public thoroughfare any horse, mule, burro, or sheep, the carcass of any such animal which has the skin on it, or the hide or skin of any such animal.
Take possession of any horse, mule, burro, or sheep, the carcass of any such animal which has the hide or skin on it, or the hide or skin of any such animal and hold it for 30 days pending an investigation.
Any animal which is seized by, or comes into the possession of an inspector pursuant to this division shall be disposed of pursuant to Chapter 7 (commencing with Section 17001), Part 1, Division 9 of this code.
ARTICLE 4. Criminal Penalties [23071. - 23071.]
Every person that violates any provision of this division is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or by imprisonment of not less than 10 days nor more than 6 months, or by both such fine and imprisonment. Each violation during any day constitutes a separate offense.
ARTICLE 5. Civil Penalties and Remedies [23091. - 23093.]
Any person that violates any provision of this division or any regulation which is issued pursuant to it is liable civilly for a penalty in an amount not to exceed a sum of five hundred dollars ($500) for each violation. Any money which is recovered pursuant to this section shall be paid into the Department of Agriculture Fund.
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring an action for civil penalties in the name of the people of this state in any court of competent jurisdiction in this state against any person violating any provision of this division.
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation has occurred, bring an action in the name of the people of this state in the superior court for an injunction against any person violating any provision of this division or any regulation duly issued by the director pursuant to it.
Any proceedings pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
ARTICLE 6. Collection and Disposition of Money [23121. - 23123.]
Any money in the Department of Agriculture Fund which is derived pursuant to this division may be expended for the administration and enforcement of any of the provisions of this code stated in Section 16461, notwithstanding any other provision of law which limits the expenditure of any such money to some specific purpose or to the administration or enforcement of some specific section, article, or chapter, of this division.
The director shall, at least once each month, report to the State Controller the total amount of any money which is collected for fees, penalties, judgments or otherwise. He shall, at the same time, pay into the State Treasury the entire amount of the receipts. The receipts shall be credited to the Department of Agriculture Fund.
A civil action may be brought by the director to recover any fee, penalty, or other money that may become due pursuant to this division.
CHAPTER 2. Brands and Brand Records [23251. - 23281.]
ARTICLE 1. Horses, Mules, Burros, or Sheep [23251. - 23252.]
Any person that desires to use a brand on horses, mules, burros, or sheep shall be governed by the same provisions and procedures with reference to such animals as are made applicable to the branding of cattle in Chapter 4 (commencing with Section 20601) of Division 10 of this code, except Section 20668.
For the purposes of this article, “brand” also includes a design which is made by applying a super-cold iron that permanently causes white hair growth or a bald mark on the animal.
As used in this section, “super-cold iron” means one that is cooled to at least a minus 195 degrees Celsius (minus 319 degrees Fahrenheit).
Any person that owns a registered cattle brand may use the same brand on the same location on horses, mules, burros, sheep, or swine if it is not in conflict with a previously registered brand.
ARTICLE 2. Swine [23281. - 23281.]
CHAPTER 3. Inspection of Animals [23401. - 23405.]
ARTICLE 1. Horses, Mules, and Burros [23401. - 23405.]
Inspection of horses, mules, and burros for shipment out of the state may be made at the request of the owner in the same manner and for the same fees as are provided for bovine animals pursuant to Chapter 6 (commencing with Section 21051) of Division 10. This section does not apply to inspections made pursuant to Chapter 9 (commencing with Section 24101) of Division 11.
A certificate of inspection shall not be issued unless a bill of sale or other proof of ownership is exhibited at the time of the inspection.
Every slaughterer of horses, mules, or burros shall have on file in his office for a period of one year after slaughter the original bill of sale of the animals purchased and slaughtered by him.
CHAPTER 6. Sale or Gift [23801. - 23802.]
A person shall not buy, sell, or accept a horse, mule, burro, or sheep, the carcass of any such animal from which the hide or skin has not been removed, or the hide or skin of such animal, unless the seller or donor gives, and the buyer or donee receives, at the time of delivery of the animal, carcass, or hide, a written bill of sale or written instrument, which states the number, kind, and brand or brand and marks of each such hide, skin, carcass, or animal, that is signed by the party that gives it.
The failure of the seller or donor to give a written bill of sale or written instrument to the buyer or donee pursuant to Section 23801 does not have any effect upon either of the following:
The validity of any sale or contract of sale of any horse, mule, burro, or sheep.
The rights of either the buyer or donee or seller or donor of the horse, mule, burro, or sheep.
CHAPTER 7. Transportation [23981. - 23981.]
A person shall not transport any sheep, unless the sheep are accompanied by a bill of lading which shows all of the following:
The name of the owner of the sheep.
The destination of the sheep.
CHAPTER 8. Drugging of Horses [24000. - 24018.]
The Legislature finds and declares the following:
That the public has a valuable interest in public equine events and public horse sales.
That it is the intent of this chapter to ensure the integrity of public equine events and public horse sales through the control of performance- and disposition-enhancing substances while limiting permitted therapeutic usage at horse shows and competitions.
For purposes of this chapter:
“Event” means a public equine event or public horse sale that is held in the state, including a cutting horse competition, an endurance riding competition, a competitive trail competition, or any other competition as determined by the department by regulation.
An equine event that is subject to this chapter shall meet all of the following criteria:
Money, goods, or services are exchanged for the right to compete.
Individuals compete for a single set of placings, points, or awards at the equine event.
For one-day events, the entry fee to enter a single class exceeds fifteen dollars ($15) and either no other fees are charged or other fees charged exceed sixty dollars ($60). Fees charged may include ground fees, stall fees, or any other fees composed of money, goods, or services assessed to permit competitors to enter into the event.
The secretary may, by regulation, increase the amounts specified in subparagraph (A), in consultation with the advisory committee appointed pursuant to Section 24013.5.
Sales that are subject to this chapter are public sales that permit a horse to be consigned for public sale.
The following events are excluded from this chapter:
Parade horse competitions.
A timed rodeo-related performance competition when held apart from a horse show, including, but not limited to, rodeo, roping club, cattle team penning, barrel racing, and gymkhana.
“Event manager” means the person in charge of an event, including the entity or individual financially responsible for the event that is responsible for registering the event with the department, and who is responsible for the assessment, collection, and remittance of fees. “Event manager” includes horse show secretaries and managers, competitive event managers, and horse sale managers and sale owners.
“Horse” means all horses, mules, and asses.
“Licensed veterinarian” means a person licensed as a veterinarian by the State of California.
“Prohibited substance” means a stimulant, depressant, tranquilizer, anesthetic, including any local anesthetic, sedative analgesic, corticosteroid, anabolic steroid, or agent that would sore a horse, that could affect the performance, soundness, or disposition of a horse, or any drug, regardless of how harmless or innocuous it might otherwise be, that could interfere with the detection of any prohibited substance, including any metabolite or derivative of any prohibited substance.
“Permissible substance” means a substance for which the department has established a limitation on dosage or a maximum permissible detectable level for the purposes provided in Section 24000.
“Therapeutic administration” means the administration of a drug, medicine, or other substance that is necessary for the treatment of an illness or injury diagnosed by a licensed veterinarian. The administration of a prescription drug, medicine, or other substance shall only be as given or prescribed by the licensed veterinarian. The administration of a nonprescription drug, medicine, or other substance shall be in accordance with the directions on the manufacturer’s label.
“Exempt medication” means an oral or topical medication containing prohibited substances determined by the department to be exempt from this chapter when administered therapeutically.
“Public equine event” means a horse show or competition that permits a person to enter a horse for show or competition in exchange for money, goods, or services. Any club or group that permits people to join or enter into competition in exchange for money, goods, or services, is “public” for purposes of this chapter.
“Public horse sale” is a sale that consigns a horse in exchange for money, goods, or services, excluding sales consisting solely of racing stock.
“Stimulant or depressant” means a medication that stimulates or depresses the circulatory, respiratory, or central or peripheral nervous system.
To “sore” means to apply an irritating or blistering agent internally or externally for the purpose of affecting the performance, soundness, or disposition of a horse.
“Trainer” means a person who has the responsibility for the care, training, custody, or performance of a horse, including, but not limited to, a person who signs any entry blank of a public equine event or public horse sale, whether that person is an owner, rider, agent, coach, adult, or minor.
The secretary has jurisdiction of all events under this chapter and shall administer and enforce this chapter.
Except as otherwise prohibited by law, the full use of modern therapeutic measures for the improvement and protection of the health of the horses is permitted.
A horse shall not be shown in any class at an event if it has been administered in any manner a prohibited substance or permissible substance in violation of this chapter.
The trainer or owner, or both the trainer and owner, in the absence of substantial evidence to the contrary, is responsible for a horse’s condition and is charged with knowledge of the provisions contained in this chapter and the rules and regulations adopted pursuant to this chapter. If a trainer is prevented from performing his or her duties, including responsibility for the condition of a horse in his or her care, by illness or other cause, or is absent from any event where a horse under his or her care is entered and stabled, the trainer shall immediately notify the secretary or manager of the event, and at the same time a substitute shall be appointed by the trainer. The substitute shall place his or her name on the entry blank at that time. The substitute shall have the same responsibilities as the substituted trainer would have had for the condition of any horse in his or her care.
A trainer, owner, or both the trainer and owner, event manager, or any person who administers, attempts to administer, instructs, authorizes, aids, conspires with another to administer, or employs anyone who administers or attempts to administer a prohibited substance to a horse in violation of this chapter shall be subject to the penalties provided in this chapter that are applicable to the trainer or owner. The trainer and owner are both responsible for complying with this chapter after any course of medical therapy has been administered or prescribed by a licensed veterinarian employed by either the trainer or owner to examine and treat a horse. A licensed veterinarian who is employed by a trainer or owner to examine and treat a horse is not subject to the penalties provided in this chapter solely on account of that examination and treatment or prescription.
In addition to any other penalty or fine prescribed by law, a trainer or owner, or both the trainer and owner, of a horse found to have received a prohibited substance or permissible substance in violation of this chapter, or determined to be in violation of Section 24009 shall be subject to a civil penalty of not less than one hundred dollars ($100) or more than ten thousand dollars ($10,000) for each violation, to be recovered by the secretary in any court of competent jurisdiction.
In addition to the penalty specified in subdivision (a) or any other penalty or fine prescribed by law, the secretary may suspend any trainer or owner, or both the trainer and owner, from all competitions at any public horse show or competition for a period of not less than 90 days or more than one year for each violation. It is unlawful for any person suspended from competition by the secretary to compete in any public horse show or competition during the period of suspension. Any person suspended from competition by the secretary who competes in any public horse show or competition during the period of suspension is subject to the civil penalty prescribed by subdivision (a) for each entry during the period of suspension.
The owner or owners of a horse found to have received a prohibited substance or permissible substance in violation of this chapter or determined to be in violation of Section 24009 shall forfeit all prize money or sweepstakes and any trophies, ribbons, and points won at any public horse show or competition by the horse and the same shall be redistributed by the horse show or competition in accordance with its rules or bylaws. The owner shall pay a fee of fifty dollars ($50) to the public horse show or competition. The horse may be suspended for any period of time specified by the secretary. If the violation occurs at a horse sale, the contract of sale is voidable at the buyer’s discretion.
In lieu of civil prosecution by the secretary, the secretary may levy a civil penalty against a person violating any provision of this chapter.
Before a civil penalty is levied, the person charged with the violation shall receive notice of the nature of the violation and shall be given an opportunity to be heard, including the right to review the secretary’s evidence and a right to present evidence on his or her own behalf.
Review of the decision of the secretary may be sought by the person against whom the penalty was levied within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
After the exhaustion of the review procedure provided in this section, the secretary or his or her representative, may file a certified copy of a final decision of the secretary that directs the payment of a civil penalty and, if applicable, any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. No fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section.
A horse at an event is subject to examination under the direction of a licensed veterinarian of the department or agent of the licensed veterinarian. The appointed licensed veterinarian, with the approval of the department, may appoint technicians and agents to perform certain duties under this chapter that are not prohibited by other provisions of law. The examination may include physical, urine, or blood tests, or any other test or procedure at the discretion of the licensed veterinarian, that is necessary to effectuate the purposes of this chapter. Any or all horses in or from a class or all classes in an event or any horse entered into or from any class or competition or sale, whether in competition or not, if the horse is on the show or sale grounds, or any horse withdrawn by any person or trainer within 24 hours before a class for which it has been entered as well as any horse withdrawn from any horse sale, may be examined.
Whether a horse is in competition or not, refusal to submit a horse in an event for examination, or refusal to cooperate with the licensed veterinarian, or his or her technicians and agents, shall constitute a violation of, and subject the responsible person to, the same penalties that are applicable to prohibited substances or permissible substances under Section 24007. A suitable sample shall be collected from a horse selected for testing by a drug testing agent of the department unless the agent releases the horse from testing.
If the chemical analysis of blood, urine, saliva, or other samples taken from a horse indicate the presence of a prohibited substance or permissible substance or any metabolite or derivative thereof, it shall be prima facie evidence that the prohibited substance or permissible substance has been administered to the horse. A hearing shall be held when a positive report is received from a chemist identifying a prohibited substance or permissible substance in violation of this chapter, or any metabolite or derivative thereof, unless the requirements of Section 24011 have been met or the prohibited substance or permissible substance consists solely of an exempt medication. The trainer or owner, or both the trainer and owner, responsible for the condition of the horse shall not be subject to the penalty prescribed under this chapter or suspended, and no horse shall be barred from competition until after the conclusion of the hearing and a written ruling thereon has been made by the secretary.
A horse that has received a prohibited substance shall not be eligible for show, competition, or sale, unless the following requirements have been met and the facts requested are submitted to the department in writing:
Medication shall be therapeutic and necessary for treatment of an illness or injury.
A horse shall be withdrawn from a show or competition for a period of not less than 24 hours after a prohibited substance is administered, unless the department determines a different withdrawal period for a specific prohibited substance or class of substances. A horse shall be withdrawn from a public sale for a period of not less than 72 hours after a prohibited substance or permissible substance is administered. The withdrawal period for anabolic steroids is 90 days after administration and the withdrawal period for fluphenazine or reserpine is 45 days after administration.
The medication shall be administered by a licensed veterinarian, the trainer, or the owner.
Medication shall be identified as to the amount, strength, and mode of administration.
The statement shall include the date and time of administration of the medication.
The horse shall be identified by its name, age, sex, color, and entry number.
The statement shall contain the diagnosis of the attending veterinarian and reason for administering the medication.
The statement shall be signed by the person administering the medication.
The statement shall be filed with the event manager of the public equine event or general manager of the public horse sale within one hour after administration or one hour after the event manager of the event returns to duty, if administration is at a time other than during show or sale hours.
The statement shall be signed by the event manager or his or her designated representative and time of receipt recorded on the statement by the event manager or his or her designated representative.
If the chemical analysis of the sample taken from a horse treated indicates the presence of a prohibited substance and all the requirements of this section have been fully complied with, the information contained in the medication report and any other relevant evidence shall be considered at any hearing provided under this chapter in determining whether any provision of this chapter has been violated.
The therapeutic administration of a permissible substance is permitted before and during all events except public auctions, provided that the dosage does not exceed any limits, or result in levels that exceed maximum permissible detectable levels, established by the department by regulation for the purposes provided in Section 24000.
To provide funds for enforcement of this chapter, the event manager of every event shall charge and collect the applicable fee for each horse entered or exhibited in the event, and each horse consigned for public sale. The secretary may, by regulation, set the applicable fee, in consultation with the advisory committee appointed pursuant to Section 24013.5, at an amount necessary to carry out this chapter. An event manager shall be notified of the applicable fee at the time of registration of an event. The event manager of the registered event shall remit the fee established pursuant to this section, in addition to the completed assessment report for the registered event, as prescribed by the secretary, to the department within 15 days after completion of the event. The event manager shall maintain event records for a period of two years after the completion of the event. Upon request by the department, the event records shall be made available to the department for inspection and photocopying to enable verification of appropriate fee collection and remittance.
Notwithstanding Section 24001, a show event held over multiple consecutive days, with a different judge on each day, that is registered and managed by the same event manager on the same premises, shall be considered one event for the purpose of the assessment of the fee.
An event manager who does not pay to the department the full amount that is due pursuant to this section shall pay a civil penalty of 10 percent of the amount due plus interest at the rate of 112 percent per month of the unpaid balance computed from the date of the event. The event manager is personally liable for fees and penalties owed the department pursuant to this section.
Fees and penalties collected pursuant to this section shall be deposited in the Department of Food and Agriculture Fund. Funds received by the department from fees and penalties pursuant to this section shall be used exclusively to carry out the intent and purposes of this chapter, including, but not limited to, pharmacological studies, drug testing, and drug research, inspection for drugs, prosecution of alleged offenders, administrative costs, attorney’s and expert witness fees, and any other costs necessary to carry out this chapter.
The secretary shall adopt those reasonable rules and regulations as are necessary to carry out this chapter.
The secretary shall adopt an exempt medications list that identifies all exempt medications. All changes to the list shall take effect on January 1 of the following year. At the time an event is registered pursuant to Section 24015, a copy of the exempt medications list shall be provided to the event manager for reference purposes. The exempt medications list shall also be made available to any person upon request.
In making and adopting regulations, the secretary shall first consult with the advisory committee appointed pursuant to Section 24013.5.
The secretary shall appoint an advisory committee to serve without compensation. The committee shall meet at least once a year, however, the chairperson may call for additional meetings as the chairperson determines are necessary. The committee shall elect a chairperson at its first meeting after appointment. Thereafter selection of the chairperson shall take place as deemed appropriate by, and at the pleasure of, the committee.
Members of the committee and their alternates may include, but not be limited to, representation from the California State Horsemen’s Association, the Equestrian Trails, Inc., the California Professional Horsemen’s Association, the Los Angeles Hunter Jumper Association, the California Dressage Society, the Pacific Coast Quarter Horse Association, the Central California Quarter Horse Association, the department, the North American Trail Ride Conference, the United States Equestrian Federation, the University of California School of Veterinary Medicine, the Appaloosa Horse Club, the Arabian Horse Association, the Pinto Horse Association of America, the California Veterinary Medical Association, the NorCal Hunter Jumper Association, the California Farm Bureau Federation, the California Gymkhana Association, the American Morgan Horse Association, the Pacific Coast Cutting Horse Association, the Pacific Coast Horse Shows Association, and any other organization the secretary deems appropriate.
The advisory committee members and their alternates shall be representative of the industry that this chapter regulates. The members of the committee may also include, but are not limited to, representatives of breed associations represented within the state and other organizations with an interest in the deterrence of drug abuse in the industry that this chapter regulates.
It is the intent of the Legislature that each of the persons appointed to the advisory committee pursuant to Section 24013.5 represent and further the interests of the industry that person is selected to represent, and that this representation and furtherance serve the public interest. Accordingly, the Legislature finds that, with respect to each person who is appointed to the committee, the industry represented is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
Every event shall be registered with the department, unless otherwise prescribed by the secretary by regulation. The event manager of an event shall file a completed registration form with the department, as prescribed by the secretary, at least 60 days before the beginning of the event, which shall constitute the registration of the event.
An event manager who fails to register an event required to be registered pursuant to this chapter is subject to a civil penalty to be levied by the secretary in an amount not less than one hundred dollars ($100) or more than two thousand five hundred dollars ($2,500). In determining the amount of the penalty, the secretary shall consider any previous violations, and whether the event manager cooperated in good faith with the department.
In addition to the civil penalty specified in subdivision (b), the secretary may, after notice and an opportunity for a hearing, suspend the event manager from hosting or managing a public equine event for a period of not less than 90 days or more than one year for each violation. It is unlawful for an event manager suspended from hosting or managing a public equine event by the secretary to conduct a public equine event during the period of suspension. An event manager suspended by the secretary from hosting or managing a public equine event, who hosts or manages a public equine event during the period of suspension, is subject to the civil penalty prescribed by subdivision (b) for each public equine event held during the period of suspension.
No provision contained in this chapter shall in any way affect existing statutes governing horseracing or affect horse sales or horse auction sales when such sales are solely for the sale of racehorses or breeding stock that is used in the production of racehorses and when such sales are held or conducted on the premises of any racing association under the jurisdiction of, and with the authorization and approval of, the California Horse Racing Board.
“Racehorse” as used in this section means each live horse, including a stallion, mare, gelding, ridgeling, colt, or filly, that is eligible to participate in a horseracing contest in California wherein parimutuel racing is permitted under rules and regulations prescribed by the California Horse Racing Board. The exemption provided in this section shall not apply with respect to racehorses participating in a competition, show, or sale covered by this chapter.
This chapter shall not apply to any horse one year of age or less entered in any public horse sale, if public notice of the administering of any drug or medication has been given as prescribed by the secretary.
The secretary may accept on behalf of the state, donations of money from any person, association, or agency interested in the control of drugging of horses. Any fines, penalties, fees, or donations collected by the secretary under this chapter shall be deposited in the Department of Food and Agriculture Fund. Any interest earned from the investment of moneys derived pursuant to this chapter shall also be deposited in the fund. These moneys shall be used by the department to carry out this chapter.
CHAPTER 9. Equine Protection: Enforcement [24101. - 24134.]
This chapter shall be known and may be cited as the Equine Protection Act of 1991.
For purposes of this chapter:
“Animal” means a horse, pony, mule, or burro.
“Program” means the program of equine protection and identification of the department.
“Slaughter” means to kill an animal and prepare it for consumption by animals or human beings.
There is in the department a program of equine protection and identification.
Each sheriff or other officer to whom a complaint that relates to the loss or theft of any animal is made shall, in a timely manner, transmit to the Bureau of Livestock Identification a report that contains all of the following:
A complete description of each animal lost or stolen including approximate age, height, and weight, sex, breed, color, natural marks, scars, a description of each brand or tattoo and its location on the animal, and any other information that may be of use in identifying, locating and receiving the lost or stolen animal.
The county or city where the loss or theft occurred.
The approximate date and time of the loss or theft.
The law enforcement agency’s report identification or number.
The name, address, and telephone number of the law enforcement agency that completed the report.
The name of that law enforcement agency’s investigating officer to be contacted relating to the loss or theft.
The Bureau of Livestock Identification shall compile a report on information received pursuant to Section 24104. The bureau shall distribute the report to all county sheriffs’ departments in a timely manner.
No investigator of the program or any other employee of the department, in enforcing this chapter, shall be required to conduct any investigation that involves the theft of any animal. That investigation shall be conducted by the law enforcement entity that filed the theft report. However, an investigator of the program may assist the law enforcement entity that filed the theft report in the theft investigation.
Before an animal may be sold at an auction, the operator of the auction yard shall determine whether the animal has an implanted microchip or has been tattooed or branded with an identifying mark. If the animal has an implanted microchip, a tattoo, or a brand, the operator of the auction yard shall post, on its internet website and through any active social media in which the operator of the auction yard participates, all identifying information, including any identification number contained in the microchip and a detailed description or picture of any tattoo or brand found on the animal. This information shall remain on the auction yard operator’s internet website and on the page of any active social media in which the operator of the auction yard participates for at least 24 hours after the initial posting.
No person shall purchase, consign, sell, or accept the donation of an animal at a public or private auction unless the seller or donor of the animal provides, and the purchaser or donee receives, at the time of delivery, a written bill of sale or any written instrument that contains all of the following information:
A description of each animal that is sold that includes its sex, breed, color, approximate height and weight, approximate age, natural marks, or identifying scars, and of each brand or tattoo and its location. If the animal has been branded or tattooed and registered with the Bureau of Livestock Identification in the department, the identification papers shall accompany the animal.
The name, address, signature, and motor vehicle driver’s license number of the person who sold or donated the animal.
The date of the transaction.
The name, address, and motor vehicle driver’s license number of the purchaser of the animal.
The name, address, and motor vehicle driver’s license number of any person who transports the animal to the purchaser or an auction yard.
For a minimum of one year following the date of sale of each animal sold at auction, the operator of the auction yard shall maintain appropriate records that accurately document compliance with this section. The operator of the auction yard shall provide access to the records and documents identified in subdivisions (a), (b), and (c) upon the request of the department, a law enforcement officer, an animal control agency, or a humane officer appointed pursuant to Section 14502 of the Corporations Code.
In addition to any other penalties available under law, a person who violates this section shall be subject to a civil penalty of one thousand dollars ($1,000) for the first offense and two thousand dollars ($2,000) for the second and each subsequent offense.
Every operator of an auction yard or dealer who handles animals destined for slaughter shall keep a written record of all sales and purchases made in the course of conducting the business for at least two years after making the final entry of any purchase, sale, or donation of an animal. The operator of an auction yard or the dealer shall show the record on demand to any investigator of the program or any peace officer.
Any person who does not keep the written records required by this chapter or who refuses, upon demand of any investigator of the program or any peace officer, to show the record, to allow copies to be made of the record, or who destroys the record within two years after making the final entry of any purchase, consignment, sale, or donation of any animal, is guilty of a misdemeanor.
No animal, whether branded or not, shall be shipped, transported, hauled, or delivered for slaughter, unless it is inspected by an inspector of the program.
As part of the inspection required by this section, the inspector shall be provided a valid bill of sale containing the information designated in Section 24106 for each individual animal.
An inspector shall seize any animal for which a valid bill of sale containing the information designated in Section 24106 is not provided.
Except as otherwise provided in this chapter, it is unlawful for any person to remove from the possession of an inspector any animal seized or which is otherwise in the possession of an inspector.
If the animal which is seized or otherwise in the possession of the inspector is branded, the director shall cause a search to be made of the brand records to ascertain the owner.
If the brands or marks are recorded, the director shall immediately, by letter, notify the person in whose name the brands or marks are recorded.
If the owner cannot be ascertained, the director shall cause a notice of the seizure of the animal to remain posted for a period of 14 days on a bulletin board in each office of the Bureau of Livestock Identification. In addition to posting the notice, the director shall periodically publish a list of the descriptions of the animals, containing the information specified in Section 24106, in the classified section of a horse-oriented publication which is in general circulation throughout the State of California. The notices shall also state the time and place of the animal’s proposed sale.
Any person that claims ownership of the animal may, at any time, but not later than 14 days after the first posting of the notice, file his or her proof of ownership with the director and the director shall proceed to determine the claim of ownership.
If ownership is proved to the satisfaction of the director, the animal shall be returned to the owner upon payment by the owner of all expenses which were incurred in the handling of the animal.
If the animal at any time while in the possession of an inspector is in a condition which requires immediate disposal, the animal may be disposed of by the director. The proceeds from the salvage, if any, in excess of expenses which were incurred in the handling of the animal shall be paid to the person proving ownership pursuant to Section 24116.
If after 14 days from the date of the first posting of notice, no satisfactory proof of ownership of the animal has been made, or if the owner fails or refuses to pay all expenses which were incurred, the director shall sell the animal. All sales which are made pursuant to this chapter convey a good and valid title to the purchaser.
The proceeds from the sale of any animal shall be paid into, and the expenses of holding, advertising, sale, and other incidental expenses shall be paid from, the Department of Food and Agriculture Fund.
If any person shall, within one year after the date of the sale, prove to the satisfaction of the director his or her ownership of an animal which was sold pursuant to this article, the director shall order the net proceeds of the sale of the animal to be paid to that person.
If the inspector of the program determines that the person who offers the animal for inspection is in lawful possession, the inspector shall issue a certificate of inspection.
The certificate of inspection shall be signed by the inspector of the program and shall indicate all of the following:
The place and date of inspection and the number of animals inspected.
The sex, breed, color, approximate height and weight, approximate age, natural marks and identifying scars, and a description of each brand or tattoo and its location on each animal.
If the animal is to be transported, the names of the shipper and consignee and the point of origin and the final destination of the shipment.
If the animal is to be transported, the length of time necessary to transport the animal between the point of inspection and the point of final destination. The inspector shall determine the amount of time needed for this purpose, based upon the information provided to him or her at the time of inspection.
The certificate issued pursuant to this section shall only be valid for transportation purposes during the period of time specified on the certificate by the inspector.
It is unlawful for any inspector to issue a certificate of inspection unless he or she personally makes the inspection between sunrise and sunset.
One copy of the certificate of inspection required by this chapter shall accompany the shipment of animals.
Any person who transports an animal destined for slaughter who does not have a copy of the certificate of inspection as required pursuant to this chapter or who refuses, upon demand of any investigator of the program or any peace officer, to exhibit a copy of the certificate, is subject to a civil penalty not to exceed fifty dollars ($50) for each animal.
It is unlawful for any person to remove any animal and substitute another for it, or to add any other animal or transport an animal from any lot of animals for which a certificate has been issued, until the shipment or slaughter is completed, unless the inspector who issued the certificate approves these actions in writing. A violation of this section is a misdemeanor.
Each dealer who handles animals destined for slaughter, and who ships 15 or more animals at a time for slaughter, shall pay the inspector a service fee of twenty-five dollars ($25), in addition to a fee of up to ten dollars ($10) for each animal, as determined by the director. The inspection shall take place within 24 hours of the date of transportation.
Each dealer who handles animals destined for slaughter, and who ships less than 15 animals at a time for slaughter, shall pay the inspector for the actual cost of the inspection, as determined by the director. The inspection shall take place immediately prior to when the animal to be shipped is loaded onto the conveyance.
The fees shall be paid at the point of inspection of the animals. The revenue derived from these fees shall be deposited in the Department of Food and Agriculture Fund and, upon appropriation by the Legislature, shall be expended to carry out this chapter. The department shall maintain all internal accounting measures necessary to ensure that revenue derived pursuant to this chapter shall be kept separate from all other funds in the Department of Food and Agriculture Fund. The Governor’s budget submitted to the Legislature pursuant to Section 12 of Article IV of the California Constitution shall display the fiscal information for this program in accordance with Sections 13335, 13336, and 13337 of the Government Code.
The inspector shall make a memorandum which shows the number, sex, breed, color, approximate height and weight, approximate age, natural marks and identifying scars, and a description of each brand or tattoo and its location on each animal which is inspected, and the names of the owner or claimant, consignor, or consignee.
The memorandum of the inspection shall be retained for record purposes by the inspector for at least two years after the date of the inspection.
The department shall maintain inspection certificates for a period of five years in a manner that shall disclose the number of animals that have been inspected.
Any person that is engaged in the business of buying or selling animals on consignment at any public or private salesyard shall keep after each sale, a certificate of consignment which contains all of the following information:
The name and address of the consignor.
A description of each animal which is sold that includes its sex, breed, color, approximate height and weight, approximate age, natural marks and identifying scars, and a description of each brand or tattoo and its location on each animal.
Reasonable proof of the ownership of the animal.
The license number of any vehicle which transports the animal to the salesyard. If the animal is transported in a trailer, the license number of both the trailer and the vehicle which pulls it shall be given.
The signature of the consignor.
Any person subject to Section 24130 shall retain the certificate of consignment on file for a period of at least two years after the sale. The certificates of consignment shall be presented on demand of any peace officer or any agent of the program.
Notwithstanding any other provision of law, a person is civilly liable for four times the value of the animal at the time of taking, possessing, harboring, transporting, or slaughtering of the animal, with interest, at the prime rate from the date of that occurrence, for attorney fees incurred in the recovery of the animal, and for an amount in fair compensation for the time and money properly expended by the owner in pursuit of the animal, as follows:
In any action for the wrongful taking, possessing, harboring, or transporting of an animal for slaughter or for the slaughter of the animal without the consent of the owner or the person lawfully in possession of the animal or any animal whose ownership is still in dispute.
In any action where a person knowingly, by any false representation or pretense, defrauds another person of any animal, which results in the wrongful taking, possessing, harboring, or transporting of the animal for slaughter without the consent of the owner or the person lawfully in possession of the animal or any animal whose ownership is still in dispute.
The commencement of any criminal prosecution for the theft of the animal shall not preclude or prevent any civil action as specified in this section.
Any person who transports an animal destined for slaughter out of the state under false pretenses in order to avoid an inspection under this chapter is guilty of a misdemeanor and subject to a fine of five hundred dollars ($500) for each animal so transported.
Any person who falsifies any document or record required by this chapter, or by any regulation adopted pursuant to this chapter, is liable civilly for a penalty in an amount not to exceed five hundred dollars ($500) for each violation. Any money that is recovered pursuant to this section shall be paid into the Department of Food and Agriculture Fund and, upon appropriation by the Legislature, shall be expended to carry out this chapter.
DIVISION 12. POULTRY, RABBITS, EGGS, AND EGG PRODUCTS [24501. - 27690.]
PART 1. POULTRY AND RABBITS [24501. - 25151.]
CHAPTER 1. General Provisions [24501. - 24563.]
ARTICLE 1. Application [24501. - 24502.]
The provisions of this part, including the payment of fees, are applicable to all state and county institutions which are engaging in livestock operations.
The provisions of Chapters 1 (commencing with Section 24501), 2 (commencing with Section 24651), and 3 (commencing with Section 24951), of Part 1 of Division 12 are not applicable to any poultry plant, or poultry product subject to requirements of plant sanitation and poultry meat product wholesomeness as provided in Chapter 4 (commencing with Section 18651) of Part 3 of Division 9.
ARTICLE 2. Investigations [24521. - 24521.]
The director may make any necessary investigations relative to reported violations of this part, pursuant to Article 2 (commencing with Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the Government Code.
ARTICLE 3. Civil Remedies [24541. - 24541.]
The Attorney General shall, upon complaint by the director, or may upon his own initiative, if after examination of the complaint and evidence he believes a violation of any provision of this part has occurred, bring an action in the name of the people of this state in the superior court for an injunction against any person violating any provision of this part or regulation which is duly issued by the director pursuant to it.
Any proceedings pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
ARTICLE 4. Poultry Regulations and Inspections [24561. - 24563.]
Notwithstanding any provisions of law to the contrary, the director may adopt by regulation standards and requirements equal to those of the Poultry Products Inspection Act (71 Stat. 441, 21 U.S.C. 451, et seq. as amended by the Wholesome Poultry Products Act, Pub. Law 90-492), including, but not limited to, standards and requirements of inspection, sanitation, reinspection, preparation, processing, buying, selling, transporting, storing, identification, recordkeeping, registration, and labeling. The regulations shall not be less restrictive than state statutory requirements. The director may enter into cooperative agreements with departments, divisions, bureaus, boards, or commissions of the United States to enforce such standards and requirements in this state.
Regulations adopted pursuant to this article or pursuant to Section 24681 or Section 24991 shall conform, so far as practicable, to the rules, regulations and standards of the United States Department of Agriculture which govern the inspection, preparation, and processing of poultry meat and poultry meat food products.
If slaughtering or carcass preparation or processing of poultry meats and poultry meat products is conducted in an establishment where state inspection is maintained at hours considered overtime for state employees or on legal holidays, the owner or operator of the establishment shall, by contract or agreement with the department, make arrangement to defray the additional cost for salaries and expenses for persons employed by the department to conduct the necessary poultry meat inspection work during the overtime periods.
Moneys collected pursuant to this section shall be deposited in the Department of Food and Agriculture Fund.
CHAPTER 2. Plant Sanitation [24651. - 24831.]
ARTICLE 1. Definitions [24651. - 24661.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Fowl” includes chickens, turkeys, ducks, geese, and other domesticated birds.
“Growing poultry” means feeding and caring for poultry.
“Marked” means plainly, legibly, and conspicuously labeled, stamped, tagged, stenciled, or branded to show the name and address of the poultry plant where, or the name and address of the distributor in California for whom, the poultry meat was slaughtered, prepared, packed, or repacked, cut up or recut, or handled.
“Mislabel” means the placing, or presence of any false, deceptive, or misleading mark, tag, brand, design, inscription, statement, billing, invoice, placard, sign, or other descriptive designation.
“New York dressed fowl” means fowl from which the feathers have been removed and the blood drawn and which is offered for sale as a whole fowl, with the head, feet, and entrails intact.
“Poultry” means domesticated fowl and domesticated rabbit which are intended for use for human food.
“Poultry meat” means the carcass of poultry or any part of such carcass.
“Poultry plant” means any of the following:
Any place where poultry is slaughtered, dressed, or drawn.
Any place, except a retail store or eating place, where poultry meat or poultry meat food products are cooked, cured, smoked, cut up, recut, packed, or repacked, or otherwise prepared for human food.
“Producer” means any person that is engaged in the business of growing any poultry, which is marketed as poultry meat, for a period of three weeks or more for the purpose of increasing the size and weight of such poultry.
“Sanitary” means free from unnecessary dirt, filth, and contamination and free from any other substance or organism which is known to be injurious to human health.
ARTICLE 2. General Provisions [24681. - 24685.]
The director shall adopt regulations for carrying out this chapter.
No regulation which requires alterations in poultry plants or changes in equipment shall be effective until six months after the date on which the director gives notice to the persons that are licensed pursuant to this chapter.
The director shall furnish to each person that holds a license, or makes application for a license, a copy of the regulations which are adopted pursuant to this chapter.
The director may bring an action to enjoin the violation or threatened violation of this chapter or any regulation which is adopted pursuant to it in the superior court in and for the county in which the violation occurred or is about to occur.
Any proceeding pursuant to Section 24684 shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
ARTICLE 3. Exemptions [24711. - 24714.]
This chapter does not apply to a poultry plant which is operated under the sanitary regulations of the Consumer and Marketing Service of the United States Department of Agriculture.
This chapter does not apply to poultry meat which bears the official mark of a city, county, or state poultry plant inspection service for sanitation outside of the state which has requirements equal to those which are provided for by this chapter if such out-of-state requirements have been approved by the director. If, however, any packing, repacking, or cutting up or recutting is done, except in a retail store or public eating house, in this state it shall be done in a poultry plant which is licensed pursuant to this chapter.
This chapter does not apply to a poultry plant where poultry which was produced on the premises is slaughtered if the poultry meat which is derived from the poultry is sold by the producer in any of the following ways:
At retail upon the premises.
At retail off of the premises, either direct to consumers at their homes or at a retail stand which is operated by the producer in a farmers’ market.
As used in this section, “producer” includes only an individual producer who does not employ, except in unforeseeable exigencies, any person except members of his or her immediate family.
This chapter does not apply to a poultry plant where poultry is slaughtered, dressed, and sold upon the premises where it was produced for purposes other than resale, if the entire poultry meat output of the producer is so sold.
ARTICLE 4. Licenses [24741. - 24752.]
A person shall not operate a poultry plant unless he has obtained a license pursuant to this chapter.
Each person shall, before operating a poultry plant, file an application with the director for a license to operate the poultry plant. The application shall be in such form as the director may prescribe.
The application for a license shall be accompanied by the license application fee.
Subject to Section 24745.5, the application fee for a new, previously unlicensed poultry plant is five hundred dollars ($500) for a license for one year for each poultry plant that the applicant desires to operate.
The fee for a license application submitted upon change of ownership of an existing, previously licensed poultry plant shall be based on the number of poultry slaughtered by the poultry plant during the preceding October through September time period, as described in subdivision (b) of Section 24745.
This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
Application for renewal of a license accompanied by a renewal fee shall be made on or before its expiration.
Subject to Section 24745.5, the annual license renewal fee for a poultry plant is:
Five hundred dollars ($500) if the plant slaughtered 10,000 or fewer poultry during the preceding October through September time period.
Seven hundred fifty dollars ($750) if the plant slaughtered between 10,000 and 100,000 poultry during the preceding October through September time period.
One thousand two hundred dollars ($1,200) if the plant slaughtered over 100,000 poultry during the preceding October through September time period.
This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
If a licensee has two or more licenses in effect at the same meat processing establishment, custom livestock slaughterhouse, place of business, or poultry plant, pursuant to Section 19010, 19011, 19240, 19260, 19280, or 24741, the license fee that is the highest amount shall be paid in full and each additional license fee shall be in an amount that is 50 percent of the fee that would otherwise be applicable.
Each license shall expire on the last day of the calendar year for which it is issued. The fee shall not be prorated.
Each person that holds a license for a poultry plant shall file an application for the renewal of the license on or before the date of the expiration of the license.
Applicants for renewal who have not paid the renewal fee by the expiration date of the license shall be assessed a penalty of 10 percent of the unpaid balance. Failure to pay the renewal fee plus the penalty within 90 days of expiration shall cause a revocation of a license.
Plans and specifications for any intended construction or major reconstruction of a poultry plant shall be submitted to the director. The director shall approve or disapprove the plans and specifications within 30 days.
The director may, after hearing, refuse to issue a license or renew a license and may revoke or suspend any license for any violation of, or failure to comply with, any provision of this chapter or any regulation which is adopted pursuant to it, or for any violation of, or failure to comply with, Section 25091.
Any proceedings pursuant to Section 24750 shall be conducted in accordance with Chapter 5 (commencing with Section 11500), Part 1, Division 3 of Title 2 of the Government Code. The director shall have all the powers which are granted in that chapter.
Fees shall not exceed the reasonable costs associated with issuing a license or permit, performing investigations, inspections, and audits, enforcing provisions pursuant to the license or permit, and administrative enforcement and adjudication thereof.
ARTICLE 5. Sanitation [24771. - 24772.]
A person shall not do any of the following:
Operate a poultry plant which is not sanitary.
Operate a poultry plant in a manner or under conditions which are not sanitary.
After each day’s operation, a poultry plant and its outer premises shall be promptly cleaned in the manner which is prescribed by the regulations.
ARTICLE 6. Marks and Labels [24801. - 24802.]
This article does not apply to New York dressed fowl until November 1, 1967.
Poultry meat shall not be packed, repacked, cut up, recut, or sold unless each container or each carcass is marked in the manner which is required by this chapter and the regulations which are adopted pursuant to it.
ARTICLE 7. Violations [24831. - 24831.]
It is unlawful for any person to do any of the following:
Violate any provision of this chapter or any regulation which is adopted pursuant to it.
Operate a poultry plant without a license.
Mislabel poultry meat.
CHAPTER 3. Poultry Meat Inspection for Wholesomeness [24951. - 25151.]
ARTICLE 1. Definitions [24951. - 24963.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Fowl” includes chickens, turkeys, ducks, geese, and other domesticated birds.
“Growing poultry” means feeding and caring for poultry.
“Marked” means plainly, legibly, and conspicuously labeled, tagged, stenciled, or branded pursuant to this chapter and any regulations which are adopted pursuant to it.
“Mislabel” means the placing, or presence of any false, deceptive, or misleading mark, tag, brand, design, inscription, statement, billing, invoice, placard, sign, or other descriptive designation.
“New York dressed fowl” means fowl from which the feathers have been removed and the blood drawn and which is offered for sale as a whole fowl with the head, feet, and entrails intact.
“Poultry” means domesticated fowl or domesticated rabbit which is intended for use for human food.
“Poultry meat” means the carcass of poultry or any part of such carcass.
“Poultry meat inspector” means a person who after examination and demonstration has been issued a license by the director to inspect poultry meat for wholesomeness.
“Poultry plant” means any of the following:
Any place where poultry is slaughtered, dressed, or drawn.
Any place, except a retail store or eating place, where poultry meat or poultry meat food products are cooked, cured, smoked, cut up, recut, packed, or repacked, or otherwise prepared for human food.
“Producer” means a person that is engaged in the business of growing any poultry, which is marketed as poultry meat, for a period of three weeks or more for the purpose of increasing the size and weight of such poultry.
“Regulations” means regulations which are adopted by the director to carry out the provisions of this chapter.
“Wholesome” means that the poultry or poultry meat is free from all of the following:
Physical evidence of any disease which is injurious to human health.
Diseases or conditions which have rendered or would render the poultry meat unsuited for human food.
Serious destruction of the flesh by disease or injury.
Contamination by any substance which is injurious to human health.
ARTICLE 2. General Provisions [24991. - 24997.]
The director shall adopt regulations for carrying out this chapter.
The regulations may include standards for poultry meat food products. The standards shall conform, so far as possible, to the standards which are adopted by the United States Department of Agriculture that pertain to the preparation and processing of poultry meat food products and the poultry meat which is used in such products.
The director shall furnish to each person that holds a license which is issued pursuant to this chapter, or that makes an application for a license, a copy of the regulations.
The director may bring an action to enjoin the violation or threatened violation of any provision of this chapter or the regulations which are adopted pursuant to it in the superior court in and for the county in which the violation occurred or is about to occur.
Any proceeding pursuant to Section 24994 shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
The director may inspect, reinspect, or order the reinspection of any poultry meat or poultry meat food product which is being processed or stored in a plant that is licensed under this part. He shall condemn or order the condemnation of any such poultry meat or poultry meat product and poultry meat food product which is found to be unwholesome.
If an action of an inspector in condemning any poultry meat or poultry meat product is questioned, appeal by the licensed plant operator may be made to the immediate supervisor of the inspector, and from his or her decision appeal may be made to the Chief of the Bureau of Meat and Poultry Inspection whose decision is final.
ARTICLE 3. Exemptions [25021. - 25024.]
This chapter, except Section 25128, does not apply to poultry meat which has been inspected and passed for wholesomeness by the United States Department of Agriculture if the immediate container or carcass of the poultry meat bears the official wholesomeness inspection mark of such department at the time of sale. If, however, any cooking, curing, smoking, packing, repacking, cutting up or recutting is done in this state, except in a retail store or public eating house, it shall be done in a poultry plant under federal or state inspection.
This chapter, except Section 25128, does not apply to poultry meat which bears the official mark of a city, county, or state poultry meat inspection service for wholesomeness in another state which has requirements equal to those provided for in this chapter, if such out-of-state requirements have been approved by the director.
This chapter does not apply to poultry meat which is derived from poultry which is produced upon the premises where it is slaughtered if the poultry meat is sold by the producer in any of the following ways:
At retail on the premises.
At retail by the producer of the poultry meat off of the premises, either direct to consumers at their homes or at a retail stand which is operated by the producer in a farmers’ market.
As used in this section, “producer” includes only an individual producer who does not employ, except in unforeseeable exigencies, any person except members of his or her immediate family.
This chapter does not apply to poultry meat which is derived from poultry which is slaughtered, dressed, and sold on the premises where it is produced for purposes other than resale, if the entire poultry meat output of the producer of such poultry is so sold.
ARTICLE 4. Meat Inspector Licenses [25051. - 25063.]
A person shall not act as a poultry meat inspector unless he has a license which is issued pursuant to this chapter.
Each person before acting as a poultry meat inspector shall apply to and receive from the director a license to inspect poultry meat.
The application fee for a license is one hundred dollars ($100).
This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
Every license shall expire on the last day of the calendar year for which it is issued.
Application for renewal of a license accompanied by a fee of one hundred dollars ($100) shall be made on or before the last day of the calendar year for which the license was issued.
This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
Applicants for renewal who have not paid the renewal fee by the expiration date of the license shall be assessed a twenty-five dollar ($25) penalty. Failure to pay the renewal fee plus the penalty within 90 days of expiration shall cause a revocation of a license.
This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
If a license lapses for two calendar years, it is not subject to renewal. Any application for the renewal of such license shall be considered a new application.
The director shall, after the written and oral examination and demonstration which are prescribed by Section 25059, issue to any person who passes the examination and is otherwise qualified a license to inspect poultry meat for wholesomeness. If an applicant for a license to inspect poultry meat does not take such examination within one year after the date of the receipt of his application by the director, his application expires.
The written and oral examination and demonstration which are required by Section 25058 shall show the applicant’s ability to understand laws and regulations which pertain to poultry meat inspection and his knowledge of all of the following:
Conditions which affect wholesomeness in poultry meat and poultry meat products.
The anatomy of poultry.
Routine processing techniques and equipment which are used in poultry processing plants, and poultry plant sanitation.
The director shall, from time to time, arrange for the conducting of schools of instruction for poultry meat inspectors.
The director may, after hearing, refuse to issue a license or renew a license and he may suspend or revoke any license for any violation of, or failure to comply with, any provision of this chapter or the regulations which are adopted pursuant to it. The director may suspend temporarily, pending hearing, any license for any willful or deliberate violation.
Any proceedings under Section 25061 shall be conducted in accordance with Chapter 5 (commencing with Section 11500), Part 1, Division 3 of Title 2 of the Government Code. The director shall have all the powers which are granted in that chapter.
Fees shall not exceed the reasonable costs associated with issuing a license or permit, performing investigations, inspections, and audits, enforcing provisions pursuant to the license or permit, and administrative enforcement and adjudication thereof.
ARTICLE 5. Requirements for Inspection [25091. - 25095.]
A person shall not operate a poultry plant unless all the poultry meat in the poultry plant is inspected by a poultry meat inspector pursuant to the regulations.
The poultry meat inspector shall inspect, pursuant to the regulations, and classify any poultry meat, poultry meat product, or poultry meat food product which is presented for inspection into one of the following classes:
Wholesome.
Retained for further inspection.
Condemned for human food.
The poultry meat inspector shall apply or direct the application of the proper marks, as determined by regulation.
All poultry meat which is condemned for human food shall be disposed of pursuant to the regulations.
Poultry meat may be passed for further processing in a plant which is licensed pursuant to this part.
ARTICLE 6. Marks and Labels [25122. - 25128.]
Poultry meat shall not be packed, repacked, cut up, recut, or sold unless each container or each carcass is marked in the manner which is required by this chapter and the regulations which are adopted pursuant to it.
A poultry meat inspector shall place or cause to be placed a mark on each carcass or container of poultry meat before the poultry meat is removed from a poultry plant.
The marks which are required by this article are in addition to those required by Section 24802 but may be in combination with such marks.
The director shall determine by regulation the official design of the marks which are required by this article.
Each poultry plant shall submit samples of the proposed method of use of the design of a mark to the director. The method shall be approved by the director before it is used.
It is unlawful for any person to sell or mark as inspected for wholesomeness any poultry meat that has not been inspected and passed for wholesomeness pursuant to this chapter and regulations which are adopted pursuant to it.
It is unlawful for any person, other than the consumer of poultry meat, to remove from any whole carcass of poultry meat, or from any part of a dismembered carcass of poultry meat, any official wholesomeness inspection mark of the United States Department of Agriculture, or of any city, county, or state poultry meat inspection service. As used in this section, “consumer” includes a restaurant or other place where such poultry meat is cooked and sold for consumption on or off the premises.
ARTICLE 7. Violations [25151. - 25151.]
It is unlawful for any person to violate any provision of this chapter, or any regulations which are adopted by the director pursuant to this chapter.
PART 2. CLASSIFICATION OF POULTRY AND RABBIT MEAT [25401. - 26151.]
CHAPTER 1. Definitions [25401. - 25412.]
Unless the context otherwise requires, the definitions in this chapter govern the construction of this part.
“Class” means a division of poultry meat which is based on essential physical characteristics which with the weights differentiate between uses of the meat.
“Fowl” includes chickens, turkeys, ducks, geese, and other domesticated birds.
“Growing poultry” means feeding and caring for poultry.
“Marked” means plainly, legibly, and conspicuously labeled, stamped, tagged, stenciled, or branded, in the manner which is prescribed by regulations of the director, to show the class of poultry meat.
“Mislabel” means the placing, or presence of any false, deceptive, or misleading mark, tag, brand, design, inscription, statement, billing, invoice, placard, sign or other descriptive designation.
“New York dressed fowl” means fowl from which the feathers have been removed and the blood drawn and which is offered for sale as a whole fowl with the head, feet, and entrails intact.
“Poultry” means domesticated fowl and domesticated rabbit which is intended for use for human food.
“Poultry meat” means the carcass of poultry or any part of the carcass, except the giblets. It does not include live poultry or processed poultry meat.
“Poultry plant” means any of the following:
Any place where poultry is slaughtered, dressed, or drawn.
Any place where poultry meat is cut up, recut, packed or repacked, or otherwise prepared for human food.
“Processing” means the commercial manufacturing of products of poultry meat by any method of cooking. It also includes all of the following:
Cutting up into pieces smaller than the customary parts such as, in the case of poultry, necks, breasts, wings, backs, legs, thighs, or similar and identifiable portions of the carcass.
Complete deboning of poultry meat.
“Producer” means any person that is engaged in the business of growing any poultry, which is marketed as poultry meat, for a period of three weeks or more for the purpose of increasing the size and weight of such poultry.
CHAPTER 2. General Provisions [25551. - 25566.]
The director shall adopt regulations for carrying out this part.
The director shall enforce this part where any poultry meat is packed, repacked, cut up, or recut.
The director and the commissioners of each county, under the supervision of the director, shall enforce this part where any poultry meat is offered for sale or sold.
An enforcing officer may do all of the following:
Enter and inspect any place or conveyance where any poultry or poultry meat is produced, prepared, packed, repacked, cut up, recut, stored, delivered for shipment, loaded, shipped, transported, or sold.
Inspect all poultry and poultry meat and any container of poultry or poultry meat which is found at the place or conveyance which is entered and inspected.
Take for inspection such representative samples of the poultry, poultry meat, or containers as may be necessary to determine whether or not this part has been violated.
Any enforcing officer may, while enforcing this part, seize or hold as evidence all or any part of any lot of poultry meat which is found to be in violation of this part as may in his judgment be necessary to obtain the conviction of the party he knows or believes has violated or is violating any provision of this part.
Any lot of poultry meat which does not comply in all respects with the provisions of this part and the regulations which are adopted pursuant to it is a public nuisance.
Any enforcing officer who has reason to believe that any lot of poultry meat does not comply in all respects with this part, may hold the lot pending proceedings to condemn and abate it as a public nuisance pursuant to this chapter.
The officer may affix to any lot which is held pursuant to Section 25557 a tag or notice which warns that the lot is held and states the reasons for which it is held. It is unlawful for any person, except an authorized enforcing officer, to detach, alter, deface, or destroy any such tag or notice which is affixed to any such lot, or remove or dispose of such lot in any manner or under conditions other than as prescribed by such tag or notice, except upon written permission of an authorized enforcing officer or by the order of a court.
The officer by whom any lot of poultry meat is held shall cause a notice of noncompliance to be served upon the person in possession of the lot. The notice of noncompliance shall include a description of the lot, the place where and the reasons for which it is held, and shall give notice that the lot is a public nuisance and subject to disposal pursuant to this chapter, unless within a specified time the lot is reconditioned or the deficiency otherwise corrected so as to bring it into compliance.
If the person served is not the sole owner of the lot of poultry meat, or does not have authority as agent for the owner to bring the lot into compliance, such person shall notify the officer by whom such lot is held, in writing, of the names and addresses of the owner and every other person that is known to him to claim an interest in the lot. Any person served is liable for any loss sustained by such owner or other person whose name and address he has knowingly concealed from such officer.
If the lot of poultry meat is not reconditioned or the deficiency otherwise corrected so as to bring it into compliance within the time which is specified in the notice, the enforcing officer shall cause a copy of the notice of noncompliance to be served upon every person that is designated in writing by the person in possession of the lot to be the owner or to claim an interest in it.
Any notice which is required by this chapter may be served personally or by mail addressed to the person to be served at his last known address.
If the lot of poultry meat that is held is perishable or subject to rapid deterioration, the enforcing officer may file a verified petition in superior court to destroy the lot or otherwise abate the nuisance. The petition shall show the condition of the lot, that the lot is situated within the county, that the lot is held, and that notice of noncompliance has been served pursuant to this chapter. The court may thereupon order that the lot be forthwith destroyed or the nuisance otherwise abated as set forth in the order. A proceeding under this section is a limited civil case if the value of the property in controversy is less than or equal to the maximum amount in controversy for a limited civil case under Section 85 of the Code of Civil Procedure.
If the lot of poultry meat which is held is not perishable or subject to rapid deterioration, the enforcing officer shall immediately report the condition of the lot to the director. Within five days from the receipt of such report, the director may file a petition in the superior court in the county where the lot is situated for an order to show cause, returnable in five days, why the lot should not be abated.
The owner or person in possession of the lot of poultry meat, on his own motion within five days from the expiration of the time specified in the notice of noncompliance may file a petition in such court for an order to show cause, returnable in five days, why the lot should not be released to petitioner and any warning tags previously affixed removed from it.
Final determination by court in either case shall be within a period of not to exceed 20 days from the date the petition is filed.
The court may enter judgment ordering that the lot of poultry meat be condemned and destroyed in the manner directed by the court or relabeled, denatured, or otherwise processed, or sold or released upon such conditions as the court in its discretion may impose to insure that the nuisance will be abated. If the poultry meat is sold by order of court, the costs of storage, handling, and reconditioning or disposal shall be deducted from the proceeds of sale and the balance, if any, paid into court for the owner.
CHAPTER 3. Exemptions [25701. - 25704.]
This part, except Section 26008, does not apply to poultry meat or a container of poultry meat which is marked with the official class as prescribed by the Consumer and Marketing Service of the United States Department of Agriculture; if such official class marking meets the requirements of this part.
This part, except Section 26008, does not apply to poultry meat which is marked as to a class that is officially approved by another inspection service whose requirements for class markings meet the requirements of this part.
This part does not apply to poultry meat which is derived from poultry which is produced upon the premises where it is slaughtered if the poultry meat is sold by the producer in any of the following ways:
At retail upon the premises.
At retail off of the premises, either direct to consumers at their homes or at a retail stand which is operated by the producer in a farmers’ market.
As used in this section, “producer” includes only an individual producer who does not employ, except in unforeseeable exigencies, any person except members of his or her immediate family.
This part does not apply to poultry meat which is derived from poultry which is slaughtered, dressed, and sold on the premises where it is produced for purposes other than resale, if the entire poultry meat output of the producer of such poultry is so sold.
CHAPTER 4. Poultry and Rabbit Meat Classes [25851. - 25857.]
The classes of the kinds of poultry meat are as established in this chapter and any regulations which are adopted by the director pursuant to Section 25857.
The classes of chicken meat, as determined by inspection of appearance and other physical characteristics, are as follows:
“Rock Cornish game hen” or “Cornish game hen” means a young immature chicken of either sex (usually five to six weeks of age) which weighs not more than two pounds ready-to-cook weight that was prepared from a Cornish chicken of the progeny of a Cornish chicken crossed with another breed of chicken.
“Broiler” or “fryer” means a young chicken (usually under 16 weeks of age) of either sex, that is tender-meated, with soft, pliable, smooth-textured skin, and flexible breastbone cartilage.
“Roaster” means a young chicken (usually under eight months of age) of either sex, that is tender-meated, with soft, pliable, smooth-textured skin, and breastbone cartilage that is somewhat less flexible than that of a broiler or fryer.
“Caponette,” “caponette fryer,” or “caponette roaster” means a young chicken with the general characteristics of either a fryer or roaster which has been treated with a hormone approved by the Food and Drug Administration of the United States Department of Health, Education and Welfare.
“Capon” means an unsexed male chicken (usually under 10 months of age), that is tender-meated with soft, pliable, smooth-textured skin.
“Hen” or “stewing chicken” or “fowl” means a mature female chicken (usually more than 10 months old) with meat less tender than that of a roaster, and nonflexible breastbone.
“Stag” means a male chicken (usually under 10 months of age) with coarse skin, somewhat toughened and darkened flesh, and considerable hardening of the breastbone cartilage. Stags show a condition of fleshing and a degree of maturity intermediate between that of a roaster and a cock or old rooster.
“Cock” or “old rooster” means a mature male chicken with coarse skin, toughened and darkened meat, and hardened breastbone.
The classes of turkey meat as determined by appearance are as follows:
“Fryer” or “roaster” means a young, immature turkey (usually under 16 weeks of age) of either sex, that is tender meated with soft, pliable, smooth-textured skin, and flexible breastbone.
“Young turkey” means a turkey (usually under eight months of age) that is tender meated with soft, pliable, smooth-textured skin, and breastbone cartilage that is somewhat less flexible than in a turkey fryer or roaster. For labeling purposes, the designation of sex within the class name is optional.
“Yearling hen turkey” means a fully matured female turkey (usually under 15 months of age) that is reasonably tender meated and with reasonably smooth-textured skin.
“Yearling tom turkey” means a fully matured male turkey (usually under 15 months of age) that is reasonably tender meated and with reasonably smooth-textured skin.
“Mature turkey” or “old turkey (hen or tom)” means an old turkey of either sex (usually in excess of 15 months of age) with coarse skin and toughened flesh.
The classes of rabbit meat as determined by appearance and weight are as follows:
“Rabbit fryer” means a young, domestic rabbit (usually under 12 weeks of age) with tender, fine-grained, and bright pearly white color which may be properly cooked by broiling or frying and which weighs not less than 112 pounds or over 312 pounds ready-to-cook weight.
“Rabbit roaster” means a domestic rabbit (over 12 weeks of age) which may be properly cooked by roasting, and which weighs 312 to 5 pounds ready-to-cook weight.
“Stewing rabbit” means a mature domestic rabbit of either sex (over six months of age) which may be properly cooked by stewing at any ready-to-cook weight.
The following are the various classes of ducks:
“Duckling” means a young duck of either sex (usually under 10 weeks of age) that is tender meated and has a bill that is not completely hardened and windpipe that is easily dented. This classification may include broilers, fryers, or roasters.
“Duck” means a mature duck or an old duck (usually over 10 weeks of age) of either sex with toughened flesh, hardened bill, and a hardened windpipe.
The following are the various classes of geese:
“Young goose” means a goose of either sex which is tender meated, and has a windpipe that is easily dented.
“Mature goose” or “old goose” means a goose of either sex which has toughened flesh and a hardened windpipe.
The director may, by regulation, adopt any necessary new class designations and class specifications or modifications of existing class designations and class specifications. He shall, in exercising such authority, take into consideration the standard class designations and class specifications promulgated by the United States Department of Agriculture.
CHAPTER 5. Requirements [26001. - 26008.]
A person shall not pack, repack, cut up, recut, or sell poultry meat unless all carcasses and the parts of carcasses are placed in classes established pursuant to this part.
The provisions of this section, except those which require that poultry, poultry meat, or carcasses be placed in classes and marked to show the class of poultry meat, do not apply to New York dressed fowl until November 1, 1967.
Except as otherwise provided in Sections 26003, 26004, 26005, and 26006, a person shall not pack, repack, cut up, recut, or sell poultry meat unless each carcass or its wrapper or, in the case of cut-up poultry or poultry parts, the container is marked, in the manner which is prescribed by regulations of the director, to show the class of poultry meat.
The provisions of Section 26002, except those which require that poultry, poultry meat, or carcasses be placed in classes and marked to show the class of poultry meat, do not apply to New York dressed fowl until November 1, 1967.
Individual carcasses of poultry meat or packages of cut-up poultry or poultry parts need not be marked with class designation in any of the following cases:
If they are prepared for use by institutions or public eating houses.
If they are prepared for use for processing.
If they are prepared for transportation or being transported to a plant for further preparation or packaging, and packaged in shipping containers which hold several carcasses or packages of such poultry.
Each shipping container shall be clearly and conspicuously marked with the proper designation of class, and of the intended use, in letters at least one-half of an inch in height, on a surface which is readily visible to the purchaser.
Poultry parts which are displayed for sale to consumers in bulk without being packaged or wrapped, shall be segregated as to class of poultry meat. The class or classes shall be designated upon a placard which clearly identifies the poultry parts which are designated by the placard in a clear and conspicuous manner that is readily visible to the purchaser.
Cut-up poultry meat which consists of all of the parts of a carcass, prepared, packaged, and offered for sale shall be from only one class of poultry meat. Containers of poultry parts of different classes, shall be marked to indicate the classes and the quantity of each.
If a class of any kind of poultry meat contains two or more designations, any combination of the designations may appear in the class marking which is required by this chapter.
It is unlawful for any person to sell any whole carcass of chicken poultry meat unless such carcass, or the immediate package or other container in which it is sold, is plainly, legibly, and conspicuously labeled, stamped, tagged, or branded to show the name and address of the poultry plant where the chicken was slaughtered or the name of the state in which the chicken was grown or raised.
Chicken poultry meat which is sold to institutions, to restaurants, or to processors for processing, may bear the label which is required in subdivision (a) of this section on each shipping container in lieu of individual carcass labeling.
CHAPTER 6. Violations [26151. - 26151.]
It is unlawful for any person to violate any provision of this part or any regulation which is adopted pursuant to it.
PART 3. POULTRY [26401. - 27232.]
CHAPTER 1. General Provisions [26401. - 26441.]
ARTICLE 1. Application [26401. - 26401.]
The provisions of this part, including the payment of fees, are applicable to all state and county institutions which are engaging in livestock operations.
ARTICLE 2. Investigations [26421. - 26421.]
The director may make any necessary investigations relative to reported violations of this part pursuant to Article 2 (commencing with Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the Government Code.
ARTICLE 3. Civil Remedies [26441. - 26441.]
The Attorney General shall, upon complaint by the director, or may upon his own initiative if after examination of the complaint and evidence he believes a violation of any provision of this part has occurred, bring an action in the name of the people of this state in the superior court for an injunction against any person violating any provision of this part or any regulation duly issued by the director pursuant to it.
Any proceedings pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director is not, however, required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
CHAPTER 2. Sale, Possession, and Transportation [26551. - 26681.]
ARTICLE 1. Definitions [26551. - 26554.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Dealer” includes any person that is operating as a poultry retailer, poultry wholesaler, butcher, slaughterer, poultry packer, poultry buyer, or poultry commission merchant.
“Place of business” includes any place or building in which, or at which, the business of a poultry dealer is conducted. Any group of buildings used as an integral part of one business shall be considered as one place of business.
“Poultry” includes chickens, ducks, geese, turkeys, and all other fowls or birds which are used for food or production purposes.
ARTICLE 2. General Provisions [26581. - 26581.]
This chapter only applies to the sale, purchase, or marketing of poultry in any county of this state and to the transportation of poultry in, through, or between any county or counties of this state.
ARTICLE 3. Transportation [26601. - 26604.]
Any person that offers poultry for shipment shall furnish a statement of ownership or right of possession of such poultry to the person, carrier, or transportation company which is to transport such shipment. The statement shall be kept as part of the record of the person, carrier, or transportation company that transports such shipment.
Any person, carrier, or transportation company which receives for transportation or transports any poultry shall at all times keep a correct record which shows all of the following:
The point of origin and destination of any shipment of poultry.
The names and addresses of the shipper and consignee.
The kind and quantity of poultry transported.
All peace officers, sheriffs or deputy sheriffs, members or officers of the California Highway Patrol and traffic officers may arrest, without warrant, any person that is found moving poultry in any manner which is not prescribed by this chapter, and may seize the poultry.
The carrier from whom the poultry is seized pursuant to Section 26603 is not liable or responsible to the owner, shipper, or consignee for the seizure.
ARTICLE 4. Resale [26631. - 26631.]
Any dealer or person that handles poultry for resale shall make and retain a record which shows all of the following:
The origin, ownership, and right of possession of the poultry.
The name and address of the seller or shipper of the poultry.
ARTICLE 5. Brands [26651. - 26652.]
It is unlawful for any person to brand, or to alter or deface the brand on, any poultry with intent to steal it or to prevent identification of the poultry by the true owner.
It is unlawful for any person to have in his possession any poultry the brand on which has been altered or defaced unless he received it from the true owner of the poultry.
ARTICLE 5.5. Fresh Poultry [26661. - 26661.]
No person who processes, butchers, slaughters, packs, repacks, or sells poultry or poultry meat shall advertise, hold out, distribute, or sell as “fresh” any poultry or poultry meat whose internal temperature has been below 26 degrees Fahrenheit.
No person who processes, butchers, slaughters, packs, repacks, or sells poultry or poultry meat shall label as “fresh” any poultry or poultry meat whose internal temperature has been below 26 degrees Fahrenheit.
No poultry or poultry meat that is distributed or sold as “fresh” shall be stored or handled in such a manner that it reaches an internal temperature below 26 degrees Fahrenheit.
No person who processes, butchers, slaughters, packs, repacks, or sells poultry or poultry meat may sell or distribute poultry or poultry meat if it is adulterated, misbranded, or if its labeling is false or misleading in any particular.
No poultry retailer is guilty of a violation of subdivision (a) or of the regulations adopted pursuant to subdivision (c) unless the poultry retailer engages, with actual knowledge, in an act prohibited by subdivision (a).
The secretary may adopt regulations reasonably necessary for carrying out this section, and those regulations shall be, insofar as possible, consistent with regulations adopted by the United States Department of Agriculture.
Each prohibition in subdivision (a) stands alone and if any prohibition in subdivision (a) has been held, or in the future is held, to be unconstitutional, preempted by federal law, or otherwise invalid by any court, all of the other prohibitions set forth in subdivision (a) are intended to, and shall remain, fully effective and shall be interpreted to exclude the unconstitutional, preempted, or otherwise invalid prohibition or prohibitions. If any sentence, clause, word, or portion of this section is for any reason held to be unconstitutional, preempted by federal law, or otherwise invalid, that holding shall not affect the remaining portions of this section. The Legislature hereby declares that it would have enacted this section and each sentence, clause, word, or portion thereof despite the fact that one or more sentences, clauses, words, or portions of this section may be held unconstitutional, preempted by federal law, or otherwise invalid.
ARTICLE 6. Violations [26681. - 26681.]
Any person that violates any provision of this chapter is guilty of a misdemeanor. Upon conviction, such person shall be punished by a fine not exceeding two hundred dollars ($200), or by imprisonment not exceeding six months in the county jail, or by both such fine and imprisonment.
CHAPTER 3. Poultry Meat Containing Spoilage Retardant Compound [26801. - 26981.]
ARTICLE 1. Definitions [26801. - 26803.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Poultry” means domesticated fowl which is intended for use for human food. It includes chickens, turkeys, ducks, geese, and other domesticated birds.
“Spoilage retardant compound” means any compound, drug, or antibiotic which is added to poultry meat which retards or limits spoilage. Seasonings, spices, or flavorings, such as salt or smoke, are not chemical preservatives.
ARTICLE 2. General Provisions [26831. - 26832.]
The director shall adopt regulations for carrying out this chapter.
The director shall enforce this chapter where any poultry meat is packed, repacked, cut up, or recut. The director and the commissioners of each county, under the supervision of the director, shall enforce this chapter where any poultry meat is sold.
ARTICLE 3. Regulations [26861. - 26862.]
Before being offered for either wholesale or retail sale, any whole carcass of poultry meat to which a spoilage retardant compound has been added shall be marked to indicate the retardant which was used. Such marking shall be affixed to the whole carcass of poultry meat or on the package in which it is offered for sale.
No whole carcass of poultry meat shall be sold unless it is conspicuously and accurately marked in accordance with the requirements of this chapter.
ARTICLE 4. Violations [26981. - 26981.]
Any person that violates any provision of this chapter or any regulation which is adopted pursuant to this chapter is guilty of a misdemeanor.
CHAPTER 4. Immersion of Rabbit Carcasses [26991. - 26991.]
It is unlawful for any person to immerse or soak the carcass of any slaughtered rabbit in water for a period longer than necessary to eliminate the natural animal heat in the carcass and in no event for a period longer than 212 hours.
CHAPTER 5. Moisture Content of Poultry Meat [27001. - 27081.]
ARTICLE 1. Definitions [27001. - 27003.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Poultry” means domesticated fowl which is intended for use for human food. It includes chickens, turkeys, ducks, geese, and other domesticated birds.
“Poultry meat” means the carcass of poultry or any part of the carcass in the raw state. It does not include poultry meat food products.
ARTICLE 2. General Provisions [27031. - 27034.]
The director shall enforce this chapter.
The director may adopt such regulations as are reasonably necessary for carrying out this chapter.
The regulations which are adopted by the director shall be, insofar as possible, similar to and consistent with regulations which are adopted by the United States Department of Agriculture.
An enforcing officer may do all of the following:
Enter and inspect any place or conveyance where any poultry or poultry meat is produced, prepared, packed, repacked, cut up, recut, stored, delivered for shipment, loaded, shipped, transported, or sold.
Inspect all poultry and poultry meat and any container of poultry or poultry meat which is found at the place or conveyance which is entered and inspected.
Take for inspection such representative samples of the poultry or poultry meat and the poultry and poultry meat containers as may be necessary to determine by laboratory analysis or other tests whether or not this chapter has been violated.
ARTICLE 3. Limitations [27061. - 27061.]
It is unlawful for any person to sell poultry meat which contains added moisture in excess of 4 percent by weight, or in excess of any greater amount that may be established by regulations of the director as necessary in good commercial processing techniques consistent with protection of the interests of the consuming public.
ARTICLE 4. Violations [27081. - 27081.]
It is unlawful for any person to violate any provision of this chapter or any regulation which is adopted pursuant to it.
CHAPTER 6. California Grown Poultry [27201. - 27232.]
ARTICLE 1. Definitions [27201. - 27203.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Poultry” means domesticated fowl that is intended for use for human food. It includes chickens, game hens, turkeys, ducks, geese, and other domesticated birds.
“Poultry meat” means the carcass of poultry or any part of the carcass. It does not include live poultry or manufactured products in which poultry is not the main ingredient.
ARTICLE 2. Marks and Labels [27231. - 27232.]
Before being offered for retail sale in this state, poultry meat of poultry that was grown or raised in this state may be advertised, labeled, described, sold, marked, or otherwise held out, with the words “California grown,” or other similar language indicating that the meat is from California grown or raised poultry.
Poultry meat of poultry that was not grown or raised in this state and packages of that meat shall not be advertised, labeled, described, sold, marked, or otherwise held out as “California grown,” or in any way as to imply that the meat is from California grown or raised poultry.
It is unlawful for any person to violate this section.
PART 4. EGGS AND EGG PRODUCTS [27501. - 27690.]
CHAPTER 1. Eggs [27501. - 27690.]
ARTICLE 1. Definitions and General Provisions [27501. - 27523.]
Unless the context otherwise requires, the definitions set forth in this article shall govern the construction of this chapter.
“Agent” includes bailee, broker, commission merchant, factor, auctioneer, solicitor, consignee, and any other person that is acting upon the express or implied authority of another.
“At retail” means a sale or transaction between a retailer and a consumer.
“California egg” means an egg produced in this state.
“Candling” means the examination of the interior of eggs by use of a transmitted light.
“Cold storage eggs” means eggs which have been in cold storage for a period of more than 30 days.
“Committee” means the Shell Egg Advisory Committee.
“Consumer” means any person who purchases eggs for his or her own family use or consumption; or any restaurant, hotel, boardinghouse, bakery, or other institution or concern which purchases eggs for serving to guests or patrons thereof, or for its own use in cooking or baking and not for resale in the shell.
“Container” means any box, case, basket, carton, sack, bag, or any other device which is used to facilitate the handling of eggs.
“Deceptive” means any arrangement of the contents of any container, or subcontainer, or of any lot, load, or display, in which the eggs in the outer layer or in any portion exposed to view are in quality, size, condition, or in any other respect so superior to those in the interior or unexposed portion as to materially misrepresent the contents or any part thereof as to size, quality, condition, or any other respects.
“Egg handler” means a person engaged in the business of producing, candling, grading, packing, or otherwise preparing shell eggs or pasteurized in-shell eggs for market or who engages in the operation of selling or marketing eggs that he or she has produced, purchased, or acquired from a producer, or which he or she is marketing on behalf of a producer, whether as owner, agent, employee, or otherwise. This section shall not apply to any purchaser who is a retailer and who does not handle eggs in any other capacity, except as a retailer.
“Producer” means a person engaged in the business of producing eggs from domesticated fowl for human consumption, who is not in the business of candling, grading, packing, sorting, or otherwise preparing shell eggs for market, marketing, or processing eggs into egg products.
“Egg meats” means the white, yolk, or any part of eggs, in liquid, frozen, dried, or any other form, used, intended or held for use, in the preparation of, or to be a part of or mixed with, food or food products, for human consumption.
“Egg products” means egg meats.
“Eggs” means eggs in the shell from chickens, turkeys, ducks, geese, or any other species of fowl.
“Incubated eggs” means eggs which have been in the course of incubation, whether natural or artificial.
“Incubator rejects” means incubated eggs.
“Marked” means plainly, legibly, and conspicuously labeled, stamped, stenciled, printed, or branded.
“Mislabel” means the presence of any false, deceptive, or misleading mark, term, statement, design, device, inscription, or any other designation upon any eggs or upon any container or subcontainer of eggs, or upon the label, lining, or wrapper thereof, or upon any placard or sign used in connection therewith, or in connection with any bulk lot or display having reference to eggs.
“Retailer” means any person who sells eggs to a consumer.
“Shell eggs” means any in-shell eggs other than pasteurized in-shell eggs, as defined in Section 27519.6.
“Shipped egg” means an egg that is produced outside the State of California and shipped into the state for purposes of resale or use by a direct user.
“Pasteurized in-shell eggs” means in-shell eggs that have been pasteurized by any method approved by the federal Food and Drug Administration or the department.
“Subcontainer” means any container when being used within another container.
The purposes of this chapter are as follows:
To assure that healthful and wholesome eggs of known quality are sold in this state.
To facilitate the orderly marketing of shell eggs in a uniform manner.
To prevent the marketing of deceptive or mislabeled containers of eggs.
“Eggs that are packaged for export” means those eggs destined for conveyance to any location outside the United States or its territories.
“Eggs that are packaged for interstate commerce” means those eggs destined for sale outside the state.
ARTICLE 2. Regulations [27531. - 27534.]
The director may adopt regulations relating to the preparation for market and marketing of shell eggs as he or she determines are reasonably necessary to carry out the purposes of this chapter. The regulations may include any of the following:
The establishment of grade standards including minimum quality and minimum size.
Pack specifications.
Marking requirements.
Sampling procedures for enforcement purposes.
Control and disposition of substandard lots.
Use of registered brands and containers, including transportation.
Requirements for displays and advertising.
Procedures for the registration of shell egg handlers.
Procedures for the collection of registration fees and assessments.
Procedures for the development and collection of data pertaining to egg production, number of chickens, and other information as recommended by the committee.
Any other matter necessary for the accomplishment of the purposes of this chapter.
The regulations relating to grade standards which are adopted pursuant to subdivision (a) of Section 27531 shall be consistent with the grade standards promulgated by the United States Department of Agriculture contained in Title 7, Code of Federal Regulations, Section 2856.216.
Regulations adopted pursuant to this chapter relating to egg shell surveillance inspection shall be consistent with any federal standards or procedures promulgated by the United States Department of Agriculture on that subject.
The director shall adopt regulations by which eggs which do not meet the size or appearance standards generally required for marketing but which are healthy for consumption may be sold directly to consumers for their own family use.
ARTICLE 3. Registration of Egg Handlers [27541. - 27542.]
Any person engaged in business in this state as an egg producer or egg handler, or any out-of-state egg handler or egg producer selling eggs into California, shall register with the secretary. A new registration shall be submitted if any current information changes.
The certificate of registration shall not be transferable to any person, or be applicable to any location other than the location for which originally issued, and shall be conspicuously displayed at such location.
ARTICLE 4. Assessment Fees [27551. - 27555.]
The following persons shall pay to the secretary a maximum fee of fifteen cents ($0.15) for each 30 dozen eggs sold as provided below:
California egg handlers shall pay the fee on all egg sales from their own production, on eggs purchased or acquired from California egg producers, and on eggs processed into egg products. California egg handlers shall not pay a fee on eggs purchased from out-of-state egg handlers or egg producers.
California egg producers shall pay the fee on all egg sales to anyone not registered under this chapter as an egg handler, to out-of-state purchasers, and to egg breaking plants.
Out-of-state egg handlers and producers shall report and pay the fee on egg sales into California sold to a retailer, producer, handler, or breaking plant, and on egg products brought into the state, at a maximum rate of fifteen cents ($0.15) for each equivalent of 30 dozen eggs.
Shipments of eggs that are accompanied by a United States Department of Agriculture certificate of grade and sold to the federal government or its agencies are exempt from these fees.
Eggs sold to household consumers on the premises where produced from a total flock size of 500 hens or fewer are exempt from these fees.
The assessment provided for in this section shall be paid only once on any particular egg.
The fees provided in Section 27551 are maximum fees and shall be established at a lower rate by the secretary at any time the funds derived from the assessment are more than reasonably necessary to cover the cost of administration and enforcement of this chapter, including the maintenance of a reasonable reserve fund for those purposes.
The secretary may, by regulation, prescribe the frequency of payment of assessments, the procedures for payment, the procedures for refunds of payment, and penalties for late payment. However, the department may triple the assessment for any eggs for which the required payment has not been made by the established due date. If a triple assessment is less than five hundred dollars ($500), the assessment shall be five hundred dollars ($500).
The moneys which are received by the director pursuant to this chapter shall be deposited in the Department of Food and Agriculture Fund and shall be used only for the administration and enforcement of this chapter, including, but not limited to, payments to commissioners pursuant to Article 5 (commencing with Section 27561). The moneys are exempt from the provisions of Article 2 (commencing with Section 13320) of Chapter 3 of Part 3 of Division 3 of Title 2 of the Government Code.
The director may assess a special fee upon egg handlers who use descriptive terms on egg containers that require laboratory analysis to verify the terms. This fee shall be used for laboratory analysis necessary for label approval and continued surveillance for compliance with the descriptive terms.
ARTICLE 5. Administration and Enforcement [27561. - 27566.]
The director shall enforce this chapter, and the regulations adopted pursuant to this chapter.
The commissioners of each county, their deputies, and qualified inspectors, under the supervision and control of the director, shall enforce this chapter and the regulations which are adopted by the director pursuant to this chapter.
Except as provided in Sections 27581 and 27601, and any of the violations enumerated in paragraph (1) of subdivision (a) of Section 27671, before any state or local official may commence legal prosecution of a handler based on a violation of this chapter, or the regulations adopted pursuant to this chapter, the handler shall be given an opportunity for a hearing with respect to the alleged violation. The director shall establish, with the advice of the committee, a policy manual which sets forth procedures for providing notice to a person charged with the violation, and for conducting the hearing. The policy manual is not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
The department may refuse to issue, or may suspend or revoke, a certificate of registration if either of the following occur:
The applicant fails to pay in full by the due date a fine, fee, assessment, or penalty levied by the department for a violation of this chapter, including a violation that occurred before January 1, 2016.
The applicant has violated a provision of this chapter or any regulation adopted to implement this chapter.
The department may reverse its refusal to issue or its suspension or revocation of a certificate of registration if the department finds substantial grounds to do so.
The department shall adopt regulations that do both of the following:
Establish procedures for an appeals process, including a noticed hearing, for a person who wishes to contest the department’s refusal to issue a certificate of registration or the department’s suspension or revocation of a certificate of registration.
Specify the maximum time period following the refusal to issue, suspension, or revocation of a certificate of registration during which the applicant shall not reapply for another egg handler or egg producer certificate of registration. The time period shall be based on the severity or number of violations of this chapter, and shall not exceed three years from the date of the original refusal to issue, suspension, or revocation of the certificate of registration.
Regulations adopted pursuant to this section shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
The director shall determine the necessary amount to be expended by each county and the department to achieve adequate administration and enforcement of this chapter, including, but not limited to, uniformity of inspection in all counties.
To make the determination for purposes of subdivision (a), the director shall determine the amount of funds generated by the fees collected pursuant to Article 4 (commencing with Section 27551) that shall be distributed to counties where point-of-origin inspections are performed pursuant to Section 27593. The director shall also determine the amount of funds generated by the fees collected pursuant to Article 4 (commencing with Section 27551) that shall be distributed to those counties that choose to enter into an agreement with the director to perform inspections of retail operations upon request pursuant to Section 27594.
Within 90 days after the end of each fiscal year, the commissioner of a county shall submit, in the form prescribed by the director, a statement to the director which shows the expenditures of funds in the enforcement and administration of this chapter for that fiscal year. Such statement shall be subject to audit by the director.
Each fiscal year the director shall prepare a statement which shows the receipt and expenditure for each county as well as those funds expended by the director during the fiscal year of funds provided for in this chapter. The director shall, upon written request of any person who is financially interested in the inspection work which is conducted pursuant to this chapter, forward a copy of such report to any such person.
The director may enter into an agreement with any commissioner for the enforcement of this chapter or the regulations adopted pursuant to this chapter.
If any commissioner does not adequately and properly enforce the provisions of this chapter, or regulations adopted pursuant to this chapter, or any agreement, as determined by the director, the director shall provide these services and expend that county’s share of the assessment fees for the proper enforcement of this chapter, in lieu of the reimbursement to such counties pursuant to Sections 27554 and 27562.
ARTICLE 6. Shell Egg Advisory Committee [27571. - 27574.]
The secretary shall appoint a Shell Egg Advisory Committee consisting of 10 members, eight of whom shall be selected by the secretary from egg handlers and be representative of the egg industry. The secretary shall appoint two alternates who may serve in the absence of any of the eight egg handler representatives. The California Agricultural Commissioners and Sealers Association shall annually designate one of its members who shall serve in a nonvoting capacity as the ninth member of the committee. The secretary also shall select and appoint one public member to the committee pursuant to subdivision (b). The members of the committee shall receive no salary.
Upon the secretary’s request, the committee shall submit to the secretary the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, or processor nor financially interested in any producer, shipper, or processor, for appointment by the secretary as a public member of the committee. The secretary may appoint one of the nominees as the public member on the committee. If all nominees are unsatisfactory to the secretary, the committee shall continue to submit lists of nominees until the secretary has made a selection. A vacancy in the office of the public member of the committee shall be filled by appointment by the secretary from the nominee or nominees similarly qualified submitted by the committee. The public member of the committee shall represent the interests of the general public in all matters coming before the committee and shall have the same voting and other rights and immunities as other members of the committee.
It is hereby declared, as a matter of legislative determination, that egg handlers appointed to the Shell Egg Advisory Committee pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that the representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the committee, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The term of office for each member, other than the member designated by the California Agricultural Commissioners and Sealers Association, of the committee shall be for three years. Appointment of the first voting members shall be made so that the term of office for two voting members shall expire at the end of one year, two at the end of two years, and two at the end of three years. Thereafter, appointments for the voting members shall be for full three-year terms.
The committee shall be advisory to the Secretary of Food and Agriculture on all matters pertaining to standards for shell eggs. The committee may advise on:
Quality of shell eggs.
Recommendations concerning sampling.
Uniformity of inspection.
Adjustment of fees for proper administration and enforcement.
Annual budget for the administration and enforcement of this chapter and all matters pertaining to this chapter or regulations adopted pursuant thereto.
Components of the Egg Quality Assurance Plan, a voluntary food safety program, that are consistent with and promote the purposes of this chapter.
The committee shall meet at the call of its chairman, the director, or at the request of any three members of the committee. The committee shall meet at least once a year. Necessary expenditures incurred by the committee members in attending committee meetings may be reimbursed in accordance with Department of Human Resources rules.
ARTICLE 7. Civil Penalties and Remedies [27581. - 27585.]
The director may bring an action to enjoin any violation or any threatened violation of this chapter or any regulations adopted pursuant to this chapter in the superior court in the county in which the violation occurred or is about to occur. Any proceeding pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
On or before January 1, 2017, the secretary shall adopt regulations classifying violations of this chapter, or any regulation adopted pursuant to this chapter, as “minor,” subject to a penalty from fifty dollars ($50) to four hundred dollars ($400), inclusive, “moderate,” subject to a penalty from four hundred one dollars ($401) to one thousand dollars ($1,000), inclusive, or “serious,” subject to a penalty from one thousand one dollars ($1,001) to ten thousand dollars ($10,000), inclusive.
The department shall post on its Internet Web site the penalty schedule described in this section when it is adopted.
The secretary, or a commissioner for violations in his or her county, may bring a civil action against any person who violates this chapter or any regulation adopted pursuant to this chapter, and any person who commits that violation is liable civilly in an amount not to exceed ten thousand dollars ($10,000). The court shall set the civil penalty imposed for a violation of this chapter, or any regulation adopted pursuant to this chapter, in accordance with the penalty schedule adopted by the secretary pursuant to Section 27581.1.
Any money recovered by the secretary under this section shall be deposited in the Department of Food and Agriculture Fund for use by the department in administering this chapter, when appropriated to the department for that purpose.
Any money recovered by a commissioner under this section shall be deposited in the county’s general fund.
A legal prosecution pursuant to this chapter shall be commenced within three years of the occurrence of the violation. However, once an investigation is completed and the appropriate documents have been submitted to the director, as determined by the director, the action shall be commenced within one year of that submission.
Except as provided in Section 27601, the director shall commence any civil action based on a violation of this chapter, and the regulations adopted pursuant to this chapter, which shall be limited to the remedies provided for in this chapter.
In lieu of prosecution, the secretary or the commissioner may levy an administrative penalty, in an amount not to exceed ten thousand dollars ($10,000) and in accordance with Section 27583.2 or 27583.4, as applicable, against a person who violates this chapter or any regulation implemented pursuant to this chapter. Commencing on the date the department posts notice of the adoption of the penalty schedule described in Section 27581.1, a penalty levied pursuant to this section shall be in accordance with that schedule.
“Person,” as used in this section, means anyone engaged in the business of producing, candling, grading, packing, or otherwise preparing shell eggs for market or who engages in the operation of selling or marketing eggs that he or she has produced, purchased, or acquired from a producer, or which he or she is marketing on behalf of a producer, whether as owner, agent, employee, or otherwise pursuant to this chapter.
If the secretary levies an administrative penalty pursuant to Section 27583, the following shall apply:
The person charged with the violation shall be notified of the proposed action in accordance with subdivision (b). The notice shall include the nature of the violation, the amount of the proposed administrative penalty, and the right to request a hearing to appeal the administrative action.
Notice shall be sent by certified mail to one of the following:
The address of the person charged, as provided by any license or registration issued by the department, which is not limited to a certificate of registration issued pursuant to this chapter.
The address of an agent for service of process for the person charged, as filed with the Secretary of State.
If an address described in subparagraph (A) or (B) is not available, the last known address of the person charged.
Notice that is sent to any of the addresses described in paragraph (1) shall be considered received, even if delivery is refused or if the notice is not accepted at that address.
The person charged shall have the right to appeal the proposed action by requesting a hearing within 20 days of the issuance of the notice of the proposed action.
If a hearing is requested, the secretary shall schedule a hearing within 45 days of the request, with notice of the time and place of the hearing given at least 10 days before the date of the hearing. At the hearing, the person charged shall be given an opportunity to review the secretary’s evidence and to present evidence on his or her own behalf. If a hearing is not timely requested, the secretary may take the proposed action without a hearing.
The secretary shall issue a decision within 30 days of the conclusion of the hearing, which decision shall become effective immediately.
The secretary shall send a copy of the notice of the proposed action to the commissioner of the county in which the violation took place at the same time notice is sent pursuant to subdivision (b). Additionally, the secretary shall inform the commissioner of the county in which the action was initiated of violations for which a penalty has been assessed.
If the proposed action is not overturned, in addition to the levy of an administrative penalty, the secretary may recover from the person charged any other reasonable costs incurred by the department in connection with administering the hearing to appeal the proposed action.
Revenues collected by the secretary pursuant to this section shall be deposited into the Department of Food and Agriculture Fund for use by the department in administering this chapter, when appropriated to the department for that purpose.
If a commissioner levies an administrative penalty pursuant to Section 27583, the following shall apply:
Before an administrative penalty is levied, the person charged with the violation shall receive written notice of the proposed action in accordance with paragraph (2). The notice shall include the nature of the violation, the amount of the proposed penalty, and the right to request a hearing to appeal the administrative action.
Notice shall be sent by certified mail to one of the following:
The address of the person charged, as provided by any license or registration issued by the department, which is not limited to a certificate of registration issued pursuant to this chapter.
The address of an agent for service of process for the person charged, as filed with the Secretary of State.
If an address described in clause (i) or (ii) is not available, the last known address of the person charged.
Notice that is sent to any of the addresses described in subparagraph (A) shall be considered received, even if delivery is refused or if the notice is not accepted at that address.
The person charged shall have the right to appeal the proposed action by requesting a hearing within 20 days of the issuance of the notice of the proposed action.
If a hearing is requested, the commissioner shall schedule a hearing within 45 days of the request, with notice of the time and place of the hearing given at least 10 days before the date of the hearing. At the hearing, the person charged shall be given an opportunity to review the commissioner’s evidence and to present evidence on his or her own behalf. If a hearing is not timely requested, the commissioner may take the proposed action without a hearing. If the person charged, or his or her legal representative, fails to appear, the commissioner shall prevail in the proceedings.
The commissioner shall issue a decision within 30 days of the conclusion of the hearing, which decision shall become effective immediately.
The commissioner shall send a copy of the notice of the proposed action to the secretary at the same time notice is sent to the person charged with the violation.
If the person, upon whom the commissioner levied an administrative penalty, requested and appeared at a hearing, the person may appeal the commissioner’s decision to the secretary within 30 days of the date of receiving a copy of the commissioner’s decision. The following procedures apply to the appeal:
The appeal shall be in writing and signed by the appellant or his or her authorized agent, state the grounds for the appeal, and include a copy of the commissioner’s decision. The appellant shall file a copy of the appeal with the commissioner at the same time it is filed with the secretary.
The appellant and the commissioner, at the time of filing the appeal, within 10 days thereafter, or at a later time prescribed by the secretary, may present the record of the hearing and a written argument to the secretary stating the ground for affirming, modifying, or reversing the commissioner’s decision.
The secretary may grant oral arguments upon application made at the time written arguments are filed.
If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days before the date set for oral argument. The times may be altered by mutual agreement of the appellant, the commissioner, and the secretary.
The secretary shall decide the appeal on the record of the hearing, including the written evidence and the written argument described in paragraph (2), that he or she has received. If the secretary finds substantial evidence in the record to support the commissioner’s decision, the secretary shall affirm the decision.
The secretary shall render a written decision within 45 days of the date of appeal or within 15 days of the date of oral arguments or as soon thereafter as practical.
On an appeal pursuant to this section, the secretary may affirm the commissioner’s decision, modify the commissioner’s decision by reducing or increasing the amount of the penalty levied so that it is consistent with the penalty schedule described in Section 27581.1, or reverse the commissioner’s decision. An administrative penalty increased by the secretary shall not be higher than that proposed in the commissioner’s notice of proposed action given pursuant to subdivision (a). A copy of the secretary’s decision shall be delivered or mailed to the appellant and the commissioner.
Any person who does not request a hearing with the commissioner pursuant to an administrative penalty assessed under subdivision (a) shall not file an appeal to the secretary pursuant to this subdivision.
If the proposed action is not overturned, in addition to the levy of an administrative penalty, the commissioner may recover from the person charged any other reasonable costs incurred by the commissioner in connection with administering the hearing to appeal the proposed action.
Revenues from administrative penalties levied by the commissioner shall be deposited in the general fund of the county and, upon appropriation by the board of supervisors, shall be used by the commissioner to carry out his or her responsibilities under this chapter. The commissioner shall inform the secretary of any violations for which a penalty has been assessed.
If a respondent in an administrative action agrees to stipulate to the notice of proposed action, a signed stipulation with the payment of the proposed administrative penalty shall be returned to the commissioner or secretary, as applicable, within 45 days of the postmark of the notice of the proposed action. If the stipulation and payment of the proposed administrative penalty are not received within 45 days, the commissioner or the secretary may file a certified copy of a final decision that directs the payment of an administrative penalty with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision. Pursuant to Section 6103 of the Government Code, no fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section.
After the exhaustion of the appeal and review of procedures provided in this article, the secretary or commissioner, or his or her representative, may file a certified copy of a final decision that directs the payment of an administrative penalty, and, if applicable, a copy of any decision of the secretary, or his or her authorized representative, and a copy of any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. Pursuant to Section 6103 of the Government Code, no fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section.
ARTICLE 8. Powers of Enforcing Officers [27591. - 27600.]
Any enforcement officer may do any of the following:
Enter and inspect any place or conveyance within the county or district over which he has supervision, where any eggs are produced, candled, incubated, stored, packed, prepared, delivered for shipment, loaded, shipped, transported, or sold.
Inspect the eggs and their containers and equipment which are found in any place or conveyance which he is authorized to enter and inspect.
Take for inspection and hold as evidence, if necessary, representative samples of the eggs and containers, for the purpose of determining whether or not any provision of this chapter or regulation adopted by the director pursuant to this chapter has been violated.
Any enforcement officer may, while enforcing this chapter or any regulations adopted by the director pursuant to this chapter, issue a hold card for all or any part of any pack, load, lot, consignment, or shipment of eggs which are packed, stored, delivered for shipment, loaded, shipped, transported, or sold in violation of any provision of this chapter or any regulation adopted pursuant to this chapter.
A commissioner in each county or the director shall perform a point-of-origin inspection on the eggs in the county of their origin to ensure that the eggs inspected meet all applicable regulations.
The inspections performed under this section shall include inspections at shell egg packing plants and major distribution points.
Regulations adopted to implement this section shall be developed in consultation with the Shell Egg Advisory Committee.
The director, or the commissioner under the direction and supervision of the director, shall inspect eggs at the point of destination upon the request of a retailer or a consumer. The director, or the commissioner under the direction and supervision of the director, may also perform this inspection when he or she has probable cause to believe that a violation of this chapter, or a regulation adopted thereunder, is presently occurring or has recently occurred.
In addition, retail inspection for monitoring purposes may be conducted by the commissioners.
The enforcing officer may, and, if requested by an enforcing officer of the state or county of destination, shall, affix a warning to any vehicle or other means of transportation, or to any eggs not previously available for inspection in California unless accompanied by a federal certificate of grade, whether or not the eggs are exempt from the standards, and serve a disposal order upon the owner or person that has custody or possession of any load or lot.
The warning notice, and disposal order which directs the proper disposition of eggs, and the disposal order receipt to be signed by an enforcing officer at destination which confirms that disposition, shall be in the form which is specified by, and provided by, the director.
The enforcing officer at the point of destination of a load or lot shall determine that the load or lot has been delivered to the consignee at the destination which is specified in the order and shall then release the load or lot and countersign the disposal order receipt so given to him or her. He or she shall immediately forward the receipt to the enforcing officer who served the disposal order.
It is unlawful for any person to deliver any eggs which are subject to a disposal order to any person or destination except the person or destination which is shown on the disposal order, unless he or she is specifically authorized in writing to do so by an enforcing officer.
It is unlawful for any person to dispose of any eggs which are subject to a disposal order prior to the release in writing of the load or lot by the enforcing officer at the point of destination. This section does not, however, make it unlawful for any person to unload and store any eggs which are subject to a disposal order.
It is unlawful for any person to use or dispose of any eggs for which a disposal order has been issued, in any manner or for any purpose except the manner or purpose for which the disposal order was issued, unless the person is specifically authorized in writing to do so by an enforcement officer.
ARTICLE 9. Abatement [27601. - 27601.]
Upon the request of the director or an authorized representative, the district attorney of the county where the eggs and their containers that are a public nuisance are found, shall maintain, in the name of the people of the State of California, a civil action to abate and prevent the public nuisance.
Upon judgment and by order of the court, the eggs and their containers that are a public nuisance shall be condemned and destroyed in the manner that is directed by the court, or reconditioned, remarked, denatured, or otherwise processed, or released upon the conditions as the court in its discretion may impose to ensure that the nuisance is abated.
If the owner fails to comply with the order of the court within the time specified in the order, the court may order disposal of the eggs and their containers or their sale, under the terms and conditions as the court may prescribe, by the enforcement officer, or by the sheriff or marshal.
If the court orders the sale of any of the eggs and their containers which can be salvaged, the costs of disposal shall be deducted from the proceeds of sale and the balance paid into court for the owner.
A proceeding pursuant to this chapter or any regulation adopted pursuant to this chapter where the value of the property seized amounts to thirty-five thousand dollars ($35,000) or less is a limited civil case.
A public nuisance described in this section may only be abated in any action or proceeding pursuant to the remedies provided by this chapter. This chapter provides the exclusive source of costs and civil penalties that may be assessed by reason of the public nuisance against the owner of eggs and their containers that are found to be a public nuisance.
ARTICLE 10. Samples [27611. - 27611.]
Any sample which is taken in accordance with the prescribed sampling procedure is prima facie evidence of the true condition of the entire lot in the examination of which the sample was taken. The presumption established by this section is a presumption affecting the burden of proof.
ARTICLE 11. Shippers and Transporters [27621. - 27621.]
Any person, forwarding company, or common carrier may decline to ship or transport any eggs if it is notified by an enforcement officer that the eggs are found to be not in conformity with any provision of this chapter or regulation adopted pursuant to this chapter.
Any person, forwarding company, or common carrier may reserve the right, in any receipt, bill of lading, or other writing given to the shipper of any eggs, to reject for shipment and to return to, or hold at the expense and risk of, such shipper, all eggs which, upon inspection, are found to be not in conformity with any provision of this chapter or regulation adopted pursuant to this chapter.
A person, forwarding company, or common carrier that transports any eggs at the request of the shipper or owner of the eggs does not violate any provisions of this chapter or regulation, unless such person, forwarding company, or common carrier willfully fails or refuses to stop the transportation of the eggs with reasonable dispatch after being notified in writing by an enforcing officer of this chapter or regulation adopted pursuant to this chapter that such eggs are found to be delivered for shipment in violation of this chapter or regulation adopted pursuant to this chapter.
ARTICLE 12. Unlawful Acts, General [27631. - 27644.5.]
It is unlawful for any person to violate any provision of this chapter or any regulation adopted by the director pursuant to the provisions of this chapter.
It is unlawful for any person to mark any eggs which were not produced in this state “Produced in California” or represent them in any manner to be a product of this state.
It is unlawful for any person to engage in the business of an egg handler without first registering as an egg handler as provided for in Article 3 (commencing with Section 27541).
It is unlawful for any person to sell or use any container or subcontainer of eggs which bears a name, a trademark, or a trade name unless the seller or user is entitled to use the name, trademark, or trade name.
It is unlawful for any person to sell or represent as chicken eggs, eggs from any other species of fowl, or mixed eggs from more than one species of fowl, or eggs from ducks, turkeys, geese, or any species of fowl other than chickens, unless the containers and subcontainers of the eggs are marked with, or a sign, placard, or other inscription otherwise indicates fully, the species of fowl from which the eggs were produced.
It is unlawful for any person to sell as “fresh eggs,” “ranch eggs,” or “farm eggs,” or to represent as being fresh, any eggs which are below the quality of grade A or which have been held in cold storage more than 30 days.
It is unlawful for any person to make any statement, representation, or assertion orally, by public outcry, or proclamation, or in writing, or by any other manner or means whatever concerning the quality, size, weight, condition, source, origin, or any other matter relating to eggs which is false, deceptive, or misleading in any particular.
It is unlawful for any person to fail to comply with any lawful order of an enforcement officer, or of any court, in any proceeding pursuant to this chapter or any regulation adopted pursuant to this chapter.
It is unlawful for any person to do any of the following:
Refuse to submit any eggs or any container, subcontainer, lot, load, or display of eggs to the inspection of any enforcement officer.
Refuse to stop, at the request of any enforcement officer, any vehicle which is transporting eggs.
It is unlawful for any person to move any eggs or their containers to which any warning tag, hold card, or notice has been affixed or to remove the warning tag, hold card, or notice from the place where it may be affixed, except upon written permission, or upon the specific direction of an enforcement officer.
It is unlawful for any person to prepare, pack, place, deliver for shipment, deliver for sale, load, ship, transport, or sell eggs in the shell unless the eggs and their containers conform to all of the requirements of this chapter or any regulation adopted pursuant to this chapter.
It shall be presumed from the fact of possession by any person engaged in the sale of eggs that such eggs are for sale for human consumption unless they have been denatured and the containers are labeled in one-inch letters “Not for human consumption.”
It is unlawful for an egg handler, as defined in Section 27510, to hold, store, transport, or display eggs that are packed or graded for human consumption unless the eggs are held, stored, transported, or displayed consistent with both of the following requirements:
At an average ambient temperature of 45 degrees Fahrenheit, or lower.
At a temperature equal to or less than the temperature requirement for holding, storing, transporting, or displaying eggs established by regulations of the United States Department of Agriculture in Title 7 of Part 56 of the Code of Federal Regulations governing the grading of shell eggs.
Retail outlets that are regulated by this chapter, except for retail outlets located in shell egg packing or distribution facilities, are exempt from subdivision (a).
Direct marketing activities, including certified farmers’ markets, as defined in Section 113742 of the Health and Safety Code, community food producers, as defined in Section 113752 of the Health and Safety Code, community-supported agriculture, as defined in Section 47060, and farm stands, as defined in Section 47050, are not required to comply with subdivision (a).
Transport vehicles may exceed the 45 degree Fahrenheit maximum temperature required pursuant to subdivision (a) when eggs are either being loaded into the transport vehicle or unloaded from the transport vehicle. A transport vehicle shall be deemed to be in compliance with subdivision (a) if the transport vehicle is equipped and has in operation when eggs are in the transport vehicle a refrigeration unit delivering air at a temperature of 45 degrees Fahrenheit or lower.
Except as provided in subdivision (c), it is unlawful for an egg handler, as defined in Section 27510, to sell, offer for sale, or expose for sale eggs that are packed or graded for human consumption unless at least one of the following conditions is met:
The consumer container is plainly, legibly, and conspicuously labeled “KEEP REFRIGERATED” or with words of similar meaning. Consumer container labeling that complies with the safe-handling instructions required by Section 101.17 of Title 21 of the Code of Federal Regulations shall be deemed to comply with this paragraph.
A conspicuous sign is posted at the point of sale for eggs on bulk display advising consumers that the eggs are to be refrigerated as soon as practical after purchase.
Except as provided in subdivision (c), it is unlawful for an egg handler to sell, offer for sale, or expose for sale eggs that are packed for human consumption unless each container intended for sale to the ultimate consumer is labeled on one outside top, side, or end with all of the following:
The words “Sell-by” immediately followed by the month and day in bold type, for example “June 30” or “6-30.” Common abbreviations of months shall be permitted.
The sell-by date shall not exceed 30 days from the date on which the eggs were packed, excluding the date of packing.
If the eggs are repacked but not regraded, the original sell-by date shall apply.
A Julian pack date. As used in this paragraph, the Julian pack date is the consecutive day of the year on which the eggs were packed.
The identification number of the plant of origin.
This section does not apply to eggs that are packaged for export. Paragraph (1) of subdivision (b) does not apply to eggs that are packaged for interstate commerce or eggs that are packaged for military sales. This section does not apply to pasteurized in-shell eggs.
All eggs returned from grocery stores, store warehouses, and institutions shall not be reprocessed for retail shell egg sales.
For purposes of paragraph (3) of subdivision (b), the department, in consultation with the Shell Egg Advisory Committee, shall establish a plant identification numbering system and assign identification numbers to all egg handling facilities.
For purposes of complying with paragraph (3) of subdivision (b), an egg handling facility that is inspected by the United States Department of Agriculture, and to which a federal plant identification number has been assigned, may use the federal identification number, the identification number assigned by the department, or both.
It is unlawful for an egg handler, as defined in Section 27510, to sell, offer for sale, or expose for sale pasteurized in-shell eggs that are packed for human consumption unless both of the following conditions are met:
The consumer container is conspicuously labeled “KEEP REFRIGERATED” or with words of similar meaning. Consumer container labeling that complies with the safe handling instructions required by Section 101.17 of Title 21 of the Code of Federal Regulations shall be deemed to comply with this paragraph.
A conspicuous sign is posted at the point of sale for pasteurized in-shell eggs on bulk display advising consumers that the pasteurized in-shell eggs are to be refrigerated as soon as practical after purchase.
Except as provided in subdivision (c), it is unlawful for an egg handler to sell, offer for sale, or expose for sale pasteurized in-shell eggs that are packed for human consumption unless each container intended for sale to the ultimate consumer is labeled on one outside top, side, or end with all of the following:
The words “Sell by” immediately followed by the month and day in bold type. Common abbreviations for months may be used.
The sell-by date shall not exceed 75 days from the date on which the pasteurized in-shell eggs were pasteurized, excluding the date of pasteurization. Processors of in-shell eggs that subject the eggs to the pasteurization process shall establish a sell-by date by completion of an appropriate shelf stability study that includes public health and safety criteria. The processor shall retain the study on file at the processing plant and make it available to the department or the State Department of Public Health upon request.
If the pasteurized in-shell eggs are repacked, the original sell-by date shall apply.
A Julian pack date. As used in this paragraph, the Julian pack date is the consecutive day of the year on which the pasteurized in-shell eggs were pasteurized.
The identification number of the plant of origin.
A conspicuous identification of the eggs as “pasteurized.”
All state and federal labeling requirements.
This section does not apply to pasteurized in-shell eggs that are packaged for export.
Paragraph (1) of subdivision (b) does not apply to pasteurized in-shell eggs that are packaged for interstate commerce or pasteurized in-shell eggs that are packaged for military sales if exported to a state or federal agency that requires a different format for the sell-by or best-if-used-by date on pasteurized in-shell eggs, and the processor is utilizing that format.
All pasteurized in-shell eggs returned from grocery stores, store warehouses, and institutions shall not be reprocessed for any retail in-shell egg sales.
The department, in consultation with the Shell Egg Advisory Committee, established pursuant Section 27571, shall establish a plant identification numbering system and assign identification numbers to all pasteurized in-shell egg handling facilities.
For purposes of complying with paragraph (3) of subdivision (b), a pasteurized in-shell egg handling facility that is inspected by the United States Department of Agriculture or the federal Food and Drug Administration, and to which a federal plant identification number has been assigned, may use the federal identification number, the identification number assigned by the department, or both.
ARTICLE 13. Ungraded Eggs [27651. - 27652.]
It is unlawful for any person to sell to any retailer, consumer, or institution consumer, any eggs which are ungraded as to quality and size, except that the director, upon the written application of any producer, may find and proclaim that an emergency exists which prevents the normal marketing of eggs by the applicant and other producers in the same area.
During an emergency which is proclaimed pursuant to Section 27651, producers in the area in which the emergency has been proclaimed to exist may sell to any retailer, consumer, or institution consumer, eggs which were produced upon the premises of the producers which are ungraded as to size and quality, and any retailer may sell such eggs to any consumer or institution consumer. Each container of eggs which is so sold and all invoices which relate to the eggs shall both:
Be clearly marked “emergency, ungraded.”
Bear the name and address of the producer.
ARTICLE 14. Registered Brands [27661. - 27669.]
Every egg handler shall register with the director each brand name which is intended for use by the handler on a master container of eggs, other than a container made of corrugated fiber.
It is unlawful for a brand registrant or his authorized agent or employees to pack eggs into a master container which does not bear the registrant’s brand, or to transport or sell eggs in such container.
Any person who, without prior authorization, acquires possession of a master container which bears a brand belonging to someone else, shall, at his or her own expense, return the container to the registered owner within 30 days. This section does not apply to the operator of a retail store who is not otherwise an egg handler.
Every person who operates a container exchange business for master containers of eggs shall obtain a license from the director.
The director shall issue licenses to persons engaged in the container exchange business for master containers of eggs pursuant to such regulations as the director deems necessary to protect the shell egg industry.
Every licensee shall file with the director the name and address of each person or firm that has contracted to use the exchange services, and shall return all containers bearing a registered brand to the registered owner within 30 days after receipt.
A licensee may sell containers which do not have a registered brand, and the ownership of which cannot be determined, to egg handlers. The handlers shall apply a registered brand before use. The licensee shall keep a record of each sale for a period of two years. All records required to be maintained by a licensee shall be made available to the director upon request.
It is unlawful for any common carrier or private carrier for hire, except those which are engaged in transporting eggs and containers of eggs to and from farms where eggs are produced, to receive or transport any container which is marked with a brand that is registered pursuant to this chapter or regulation unless such carrier has in its possession a bill of lading or invoice which shows all of the following:
The name and address of the consignor.
The name and address of the consignee.
The number of containers.
The brand which appears on the containers.
ARTICLE 15. Criminal Punishment and Procedure [27671. - 27690.]
The following persons are guilty of a misdemeanor:
Any person who commits a second or subsequent violation of this chapter, or any regulation adopted pursuant to this chapter, that is the same as a prior violation.
Any person whose intentional violation of this chapter, or regulations adopted pursuant to this chapter, resulted, or reasonably could have resulted, in the creation of a hazard to human health or the environment, or in the disruption of the marketing of eggs.
Any person guilty of a misdemeanor as provided in this section is punishable as follows:
In any case of willful or intentional violation, by imprisonment in the county jail not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both.
In any case which does not involve willful or intentional violation, by a fine not to exceed one thousand dollars ($1,000).
Any prosecution for a violation of this chapter or any regulation adopted pursuant to this chapter may be instituted in any county where any part of the offense occurred. Any evidence which is taken by any enforcement officer in any county may be admitted in evidence in any prosecution in any other county.
It is unlawful for any person to fail to appear in court at the time and place designated in any written promise to appear given after arrest pursuant to this chapter or any regulation adopted pursuant to this chapter, regardless of the disposition of the offense originally charged.
Unless a person who is arrested for the transportation of eggs in violation of any provision of this chapter or any regulation adopted pursuant to this chapter demands the right of an immediate appearance before a magistrate, the procedures as prescribed in Chapter 5C (commencing with Section 853.6) of Title 3 of Part 2 of the Penal Code shall be followed.
If the grade determination and size determination required by this chapter are performed at a location outside of this state, the records relating to eggs of any person registered under this chapter at that location shall be subject to inspection by the department as the department considers necessary. The department may contract with another agency of state government or with a state department of agriculture or other similar agency where the out-of-state registrant is domiciled to conduct the inspection.
A registrant whose out-of-state location is inspected shall reimburse the department for actual and necessary expenses incurred during the inspection. If an out-of-state registrant fails to pay the expenses before the 11th day on which the registrant received an invoice from the department, the department may do any of the following:
Automatically cancel the person’s registration.
Deny a registration to any person who is connected with a person whose registration is canceled because of a violation of this section.
Issue an order to stop the sale of all eggs shipped into California from the registrant.
The actual and necessary expenses of the department for each inspection of an out-of-state location may not exceed either of the following:
The actual and necessary expenses, not to exceed the state’s per diem, for food, lodging, and local transportation of the inspector and the cost of the least expensive available space round-trip airfare from Sacramento to the location to be inspected.
Any contract fees charged to perform the inspection by another state agency or an agricultural agency in the state where the registrant is domiciled.
The department shall attempt to schedule as many out-of-state inspections as feasible within an area on each inspection trip. If more than one registrant is inspected in an area during an inspection trip, the expenses of the trip shall be divided proportionately among the registrants based upon the amount of time spent on each registrant’s audit.
The department shall perform sufficient inspections of the records of out-of-state registrants to ensure that out-of-state registrants selling eggs into California pay the appropriate fees as required by Section 27551.
Before receiving a registration as required by this chapter, an applicant whose home office or principal place of business is outside of this state shall file with the department the name of an agent in this state who is authorized to receive service of process in actions by the state or the department in the enforcement of this chapter.
All shipped eggs shall be transported under refrigeration in compliance with California statutes and regulations.
If the department determines that eggs are not in compliance with this chapter or that they have been shipped without the handler or producer first securing the required registration and being current on the payment of the appropriate fees, the department shall issue and enforce an order to stop the sale of the eggs.
A person may not sell eggs on which a stop-sale order has been issued until the department determines that the eggs and the handler or producer are in compliance with this chapter. Eggs that are in compliance with this chapter, but for which the handler or producer have not secured the required registration and paid the appropriate fees, may only be sold or moved under the specific direction of the secretary.
With respect to eggs that are not in compliance with this chapter and on which a stop-sale order has been issued, the seller may submit the eggs for reinspection to an authorized state or county enforcement officer. If on reinspection the eggs fail to meet the specification of the grades with which they are labeled, the seller must remark or repackage the eggs to meet the specifications for their actual grades before calling for reinspection. Repackaged eggs must be labeled with the original sell by date.
Each registrant shall submit a report as designated by the department and remit any fees due on a monthly basis. The report is due no later than the 30th day following the month of delivery to California. Each registrant shall keep a copy of this report on file at the registered facility for a period of three years.
Any out-of-state registrant who fails to promptly submit required reports or pay required fees is subject to the criminal penalties specified in this chapter. A violation of this section is also subject to a civil or administrative penalty not to exceed five hundred dollars ($500) per violation. Each day a violation continues may be considered a separate violation for purposes of penalty assessment. The department may also seek appropriate injunctive relief.
The report required by Section 27688 shall give a complete breakdown of all sales of graded and ungraded eggs into California, listing the individual plant or person to whom eggs were sold and indicating whether these eggs were sold on a graded or ungraded basis. A check or money order in the amount of the fee as required by this chapter on all eggs shipped into California on a graded basis shall accompany the report.
All brokers registered with California shall itemize in their reports a true and complete list of all eggs brokered into and within California. This list shall include the name and address of all persons from whom eggs were purchased, to whom they were sold, and the amount of eggs involved in each transaction. Furthermore, the broker shall indicate whether the eggs involved in the transaction were graded or ungraded.
DIVISION 13. BEE MANAGEMENT AND HONEY PRODUCTION [29000. - 29812.]
CHAPTER 1. Bees [29000. - 29322.]
ARTICLE 1. General Provisions [29000. - 29013.]
The Legislature hereby finds and declares that:
A healthy and vibrant apiary industry is important to the economy and welfare of the people of the State of California. Protection and promotion of this important industry is in the interest of the people of the State of California.
This chapter shall be known and may be cited as, the “Apiary Protection Act.” Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Apiary” includes bees, comb, hives, appliances, or colonies, wherever they are kept, located, or found.
“Appliance” means any implement or other device which is used in handling and manipulating bees or comb, any container of bees or comb, or any other equipment which is used in the practice of apiculture.
“Bees” means honey-producing insects of the genus Apis. It includes all life stages of these insects.
“Board” means the Apiary Board.
“Broker” means a person or entity that receives a monetary profit from the managing of beehives, hive equipment, or honey bees that they do not own, but have control of, through a private or public agreement between one or more parties.
“Colony” means one hive and its contents, including bees, comb, and appliances.
“Comb” includes all materials which are normally deposited into hives by bees. It does not include extracted honey or royal jelly, trapped pollen, and processed beeswax.
“Commissioner” means a county agricultural commissioner.
“Pest” includes American foulbrood or any other infectious disease, parasite, pest, or hereditary disease that affects bees that the secretary declares by regulations, in consultation with the association representing the beekeeping industry and the board and final approval by the secretary, is detrimental to the welfare of the bee industry.
“Infected,” “infested,” “contaminated,” or “diseased” includes a viable stage of a life cycle of a “pest” as defined in Section 29009 can be demonstrated to exist on or within the colony population or on hives, comb, or any appliances associated with beekeeping operations.
“Hive” means any receptacle or container, or part of any receptacle or container, which is made or prepared for the use of bees, or which is inhabited by bees.
“Inspector” means any person who has received a certificate issued by the department with curriculum approved by the secretary and who is authorized to enforce this chapter.
“Location” means any premises upon which an apiary is located.
ARTICLE 2. Apiary Board [29020. - 29028.]
There is in the department the Apiary Board, consisting of seven members appointed by the secretary, six of whom shall be registered beekeepers who reside in California and who are representative of the industry functions of queen breeding, pollination, or honey production. The secretary may appoint the seventh member of the board, who shall be a public member.
Upon the director’s request, the board shall submit to the director the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, distributor, packer, or processor, nor financially interested in any of those entities, for appointment by the director as a public member of the board. The director may appoint one of the nominees as the public member on the board. If all nominees are unsatisfactory to the director, the board shall continue to submit lists of nominees until the director has made a selection. Any vacancy in the office of the public member of the board shall be filled by appointment by the director from the nominee or nominees similarly qualified submitted by the board. The public member of the board shall represent the interests of the general public in all matters coming before the board and shall have the same voting and other rights and immunities as other members of the board.
It is hereby declared, as a matter of legislative determination, that beekeepers appointed to the board are intended to represent and further the interest of a particular agricultural industry concerned, and that the representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the board, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
In making his or her selection of the membership of the board, the director shall take into consideration the recommendations of the beekeeping industry, including, but not limited to, the California State Beekeeper’s Association.
The term of office of the members of the board is four years. Appointments shall be for full four-year terms. The director shall solicit the views of the industry, including, but not limited to, the California State Beekeeper’s Association before allowing any member to serve as a member of the board; however, no person shall serve successive terms as a member of the board.
The secretary may appoint a department representative as the secretary to the board. In consultation with the board, the secretary may identify a representative from the California Agricultural Commissioners and Sealers Association and a member of the industry that represents pollinated crops to serve as subject matter experts at meetings.
The board shall be advisory to the director on all matters related to the beekeeping industry and may make recommendations on all matters affecting the activities of the department in relation to the beekeeping industry including an annual review of the department’s apiary program.
The board shall meet at the call of the director or at the request of any three members of the board. It shall meet at least once a year.
Each member of the board shall serve without compensation, but each member shall be reimbursed for actual and necessary expenses, including travel expenses, incurred in attending meetings of the board and any other official duty authorized by the board and approved by the director. The reimbursements shall be made in accordance with the rules of the Department of Human Resources.
ARTICLE 3. Apiary Assessments [29030.5. - 29032.]
The beekeeper, apiary owner, apiary operator, or the person in possession of an apiary, in addition to the annual assessment fee prescribed by subdivision (a) of Section 29030, shall pay to the director an annual assessment fee of three cents ($0.03) per colony for the purpose of research on Africanized bees. The fee shall be annually collected until July 1, 1992, and the revenue, notwithstanding Section 13340 of the Government Code, is continuously appropriated for that research.
Subdivision (c) of Section 29030 and Section 29032 does not apply to the disposition of funds authorized by this section.
The assessment fees shall be payable to the director on July 1 of each year. The director shall send a written notice of the nonpayment of the required assessment fee to any person who fails to pay the assessment fee on that date. If the total amount of the assessment fee is not paid within 31 days after receipt of the written notice from the director, the person shall be required to pay, in addition to his or her regular fee, a penalty fee equal to 10 percent of the amount of the assessment fee prescribed pursuant to Section 29030, plus interest from that date. The interest shall accrue on a daily basis until the amount owed is paid.
Any funds collected by the director pursuant to this article shall be deposited in the Department of Food and Agriculture Fund to be used for the control of pests, and research related to the bee industry, as advised by the board and approved by the director, and to carry out Article 2 (commencing with Section 29020).
The director shall pay by contract entered into pursuant to this section, five-eighths of the funds received from apiary assessments to the counties as reimbursement for costs incurred by the commissioner in the administration and enforcement of this chapter. The payment shall be apportioned to the commissioner in relation to each county’s expenditure for the administration and enforcement of the chapter. The director, after consulting with the board, shall establish standards of performance for administration and enforcement. The director shall make the payments to each county only if the commissioner acts in compliance with a contract entered into between the director and the commissioner.
ARTICLE 4. Registration and Identification of Apiaries [29040. - 29057.]
Every person that is the owner, broker, or is in possession of an apiary that is located within the state, on the first day of January of each year, shall register the number of colonies in each apiary that is owned or possessed by the person and the location of each apiary. Every person required to register under this article, shall do so on the first day of January of each year in which they maintain, possess, or are in possession of an apiary, or within 30 days thereafter, as prescribed in this article.
Notwithstanding the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code), any information provided in accordance with this article, Section 29070, or Section 29070.5 shall be held confidential, and shall not be disclosed to any person or governmental agency, other than the department or a county department of agriculture. The information shall also be considered privileged under the provisions of Sections 1040 and 1060 of the Evidence Code, with the exception of the location of apiaries for disclosure to pesticide applicators pursuant to Section 29101.
Every person who moves bees into the state or otherwise comes into possession of an apiary that is located within the state after the first day of January, shall register the name of the owner and the number and location of colonies moved into the state or so acquired within 30 days after coming into possession of the apiary.
Registration of an apiary shall be filed with the commissioner of the county in which the apiary is located, or with the director if there is no commissioner in the county. The director shall adopt a form of registration to be used statewide, which shall include a request for notification of use of pesticide in accordance with Section 29101. All commissioners shall use the same form.
Each beekeeper, apiary owner, apiary operator, broker, or person in possession of any apiary, shall pay, in addition to any other fees imposed under this chapter, an annual registration fee not to exceed two hundred fifty dollars ($250) to the secretary on January 1 of each year, to cover the cost of apiary registration. The secretary shall by regulation adopt and periodically update a schedule of the registration fees that shall include late fees for anyone who fails to register an apiary under Sections 29041 and 29042. The board of supervisors of any county, with the approval of the secretary, may waive the registration fee for any beekeeper, apiary owner, apiary operator, or person, who is a hobbyist not in the business of beekeeping and who possesses nine or fewer colonies.
The secretary may enter into contracts with counties to reimburse the counties for costs incurred by the commissioner in the administration and enforcement of this chapter. The source for reimbursement shall be the funds received from the registration fees described in subdivision (a). The reimbursement shall be apportioned to the commissioner in relation to each county’s expenditure. The secretary shall make the payments to each county only if the commissioner acts in compliance with the contract entered into pursuant to this subdivision.
The secretary, after consulting with the board, shall establish standards of performance for administration and enforcement.
For purposes of this section, “broker” means a person or entity that receives a monetary profit from the managing of beehives, hive equipment, or honeybees that they do not own, but have control of, through a private or public agreement between one or more parties.
It is unlawful for a person to maintain any apiary that is not registered pursuant to this article. Each registration is valid until January 1 of the following year.
No person shall maintain an apiary on premises other than that of his or her residence unless the apiary is identified as follows:
By a sign that is prominently displayed on the entrance side of the apiary or stenciled on the hive, that states in dark letters not less than one inch in height on a background of contrasting color, the name of the owner or person responsible for the apiary, his or her address and telephone number, or if he or she has no telephone, a statement to that effect.
If the governing body of the county or city in which the apiary is located has provided by ordinance for the identification of apiaries, in the manner that is prescribed in the ordinance.
No person shall locate or maintain an apiary on private land not owned or leased by the person unless the person has approval from the owner of record, or an authorized agent of the owner of record, and can establish approval upon demand of the secretary or commissioner. The approval shall include the name and phone number of the person granting approval.
No person shall locate or maintain an apiary on any public land without the expressed oral or written approval of the entity that owns, leases, controls, or occupies the land, and can establish this approval upon demand of the secretary or the commissioner. The approval shall include the name and telephone number of the person granting the approval. During the citrus bloom period, as established by the commissioner, including 72 hours before the declaration of the bloom period until 48 hours after the conclusion of the bloom period, the apiary operator shall obtain written permission to place bees on public land, and shall make it available to the secretary or the commissioner upon demand. Any apiary located or maintained on public land without lawful consent is a public nuisance and may be subject to seizure by the secretary or the commissioner.
The secretary or commissioner may commence proceedings in the superior court of the county or city and county in which the seizure is made petitioning the court for judgment forfeiting the apiary. Upon the filing of the petition, the clerk of the court shall fix a time for a hearing and cause notices to be posted for 14 days in at least three public places in the place where the court is held, if the person owning the apiary is unknown, setting forth the substance of the petition and the time and place fixed for its hearing. At that time, the court shall hear and determine the proceeding and upon proof that the apiary was located or maintained on public lands without approval of the entity, may order the apiary forfeited. Any apiary so forfeited shall be sold or destroyed by the secretary or the commissioner. The proceeds from all sales shall be used in accordance with Section 29032.
Any person who owns or is in possession of an apiary may bring an action to recover damages for any injury to the apiary by reason of any pest control operation if the person has complied with Sections 29043, 29046, 29070, and 29070.5, and with regulations adopted by the secretary providing for the protection of bees under Sections 11502, 14005, and 29080 when these requirements apply to the property where the alleged damage has occurred.
Any pesticide applicator who experiences any loss because of a beekeeper’s failure to request notification of a pesticide application pursuant to Section 29101, or pursuant to any department rule or regulation, or who experiences any loss because of a beekeeper’s failure to register bees pursuant to Section 29041 or 29042, may bring an action for the recovery of damages against that beekeeper.
The owner of any apiary equipment may apply to the director for a serial number brand for use on apiary equipment which he or she owns. The application shall contain the name and address of the applicant and shall be accompanied by a fee, as established and periodically updated, by the director by regulation.
Upon receipt of the application and fee, the director shall register a serial number brand to the applicant. The serial number shall include a county number followed by an individual number. The county number shall be and remain the same as the number of the class of the county in the classification which was adopted by the Legislature in 1931. As to counties with classification numbers 1 to 9, inclusive, the county number shall be preceded by a dash (—). The county number shall be followed by a dash (—) and the individual number.
If a serial number brand is used on wooden equipment, it shall be burned into the wood in numbers which are at least one-half inch in height. Hive bodies shall be branded on the upper left-hand corner. Frames shall be branded or stenciled on top bars. Other wooden equipment may be branded in any manner desired.
Serial number brands are transferrable.
If the purchaser does not have a registered brand number, he or she may use a brand acquired by purchase if a bill of sale on the purchased brand number is forwarded by registered mail to the director accompanied by a transfer fee as established and periodically updated by the director by regulation.
If the purchaser has a previously registered brand number, he or she may have other brand numbers transferred to his or her name, without charge, but he or she shall destroy any and all branding irons or branding devices acquired by the transfer and notify the director of the destruction.
If ownership of branded equipment is transferred, the original brand shall not be defaced or obliterated. The brand, if any, of the new owner shall be placed below the original brand and as near it as possible.
It is unlawful for any person to have in his or her possession any apiary equipment which is branded with any serial number brand other than his or her own unless he or she has a bill of sale which he or she obtained from the registered owner of the serial brand number.
It is unlawful for any person to do any one of the following:
Use any serial number brand unless it is registered pursuant to this article provided that the National Crime Identification Center (NCIC) numbers may be used.
Alter, deface, remove, or obliterate the brand on any apiary equipment to prevent the identification of the equipment.
Be in possession of any apiary equipment upon which the brand has been altered, defaced, removed, or obliterated.
Any funds collected by the secretary pursuant to this article shall be deposited in the Department of Food and Agriculture Fund, and notwithstanding Section 13340 of the Government Code, are hereby continuously appropriated, without regard to fiscal years, for administration, research, control of pests, and enforcement of this chapter, as advised by the board and approved by the secretary, less the funds used to reimburse counties pursuant to subdivision (b) of Section 29044.
ARTICLE 5. Intrastate Movement [29070. - 29074.]
Any person relocating a colony of bees from a registered apiary in one county to another county, where the apiary is not registered for the current calendar year, shall notify the destination commissioner within 72 hours of the first movement or entry into the county. The notification shall include all of the following:
The name and address of the apiary operator or the operator’s designated representative.
A telephone number where the apiary operator or the operator’s designated representative may be reached.
The apiary operator or the operator’s designated representative shall provide locations of each colony upon request by the commissioner of any county.
Subsequent movement into the destination county shall require further notification to the commissioner within 72 hours of movement.
When the apiary operator removes the last colony from the county, the operator shall notify the commissioner of that final movement within 72 hours.
Any apiary operator or the apiary operator’s designated representative relocating a colony of bees within a county where the apiary is currently registered shall notify the commissioner of the movement within 72 hours of the relocation.
It is lawful for any person when under the supervision of the local county agricultural commissioner, except when prohibited by other provisions of this chapter, to do any of the following:
Transport any contaminated hive, together with its contents, to a suitable place for burning or disposal, pursuant to Section 29208 or to a wax salvage plant licensed under Article 11 (commencing with Section 29150), after the person has killed the bees in the hive and sealed the hive to prevent the entrance of live bees.
Transport contaminated comb, including any frame associated with it, to a suitable place for burning or disposal, pursuant to Section 29208 or to a wax salvage plant, licensed under the provisions of Article 11 (commencing with Section 29150) if the comb is tightly enclosed to prevent access to the comb by bees.
No person shall move or transport any bees, comb, appliances, or colonies within the state that contain pests, except for abatement pursuant to this chapter or for research pursuant to Section 29074.
The inspector, in a summary manner, may destroy, where required, any and all colonies, bees, combs, or hives that contain pests that are unlawfully moved within the state wherever they may be found.
The secretary, by written permit, subject to conditions the secretary may determine are necessary to protect the beekeeping industry of this state, may authorize federal and state agencies to transport and maintain within the state diseased bees, comb, hives, appliances, or colonies for the purpose of studying methods of eradicating and controlling bee diseases.
ARTICLE 6. Notification Regions [29080. - 29082.]
As used in this article and in Article 7 (commencing with Section 29100) “director” means the Director of Pesticide Regulation.
The director may, after notice and hearing, establish regions for the notification of apiary owners relative to pesticide applications if the director determines that the notification could be effectively accomplished on a regional basis and that there would be sufficient interest among beekeepers and pest control operators to make substantial participation in a regional notification system likely. The regions may be composed of more than one county or portions of counties, but no single county or portion of a county may become an entire region.
Upon the establishment of a notification region, the director shall designate one of the commissioners within the region as the coordinator for the region. The coordinator may receive, upon request, any necessary technical assistance from the University of California, other commissioners, and the department in the development of a regional notification system.
The coordinator may receive money from any source and shall deposit the funds in the Department of Pesticide Regulation Fund, or with the approval of the director, in the county treasury, for expenditure pursuant to the purposes of this article, upon appropriation therefor by the Legislature, or, if the funds are deposited in the county treasury, by the county board of supervisors. The director may, if he or she determines that it is necessary, establish fees for beekeepers and pest control operators who participate. The fees may, if necessary, vary for different regions, but shall in no case be greater than the amount necessary to defray the expenses of that region. If an unexpended surplus exists for more than two consecutive years, the surplus funds shall be transferred to the beekeeping program. If the operation of the system is suspended or terminated, any unexpended moneys shall be deposited in the Department of Food and Agriculture Fund to be used as prescribed in Section 29032.
ARTICLE 7. Use of Pesticides [29100. - 29103.]
The Legislature hereby finds and declares that bees perform a valuable service to agriculture in this state.
The Legislature further finds and declares that the necessary application of certain pesticides to blossoming plants poses a potential hazard to bees.
The Legislature further finds and declares that the use of pesticides is necessary for the protection of agricultural crops.
The Legislature further finds and declares that certain factors, including, but not limited to, the time of application, the type of pesticides used, the type of blossoming plant involved, the proximity of the apiaries, and the ability to locate and notify the owners of the apiaries involved, directly affect the extent of the harm to bees resulting from pesticides.
Each beekeeper shall report to the commissioner of the county in which the beekeeper’s apiary is located, on a form approved by the secretary, each location of apiaries for which notification of pesticide usage is sought. This report for notification may be filed with and be part of the form used for registration pursuant to Article 4 (commencing with Section 29040), or shall be submitted in writing if notice of relocation is made as set forth in Section 29070 or 29070.5. Except for reports filed as part of an initial registration pursuant to Section 29040, each request shall be provided electronically or shall be mailed within 72 hours before locating an apiary, where feasible, but in no event later than 72 hours after locating an apiary.
The beekeeper shall not be entitled to notification until receipt and processing of the report is made by the commissioner. However, the commissioner may provide notice earlier if practicable.
Notice to pesticide applicators shall not be required until the written report by the beekeeper has been received and processed by the commissioner, except that the commissioner may provide notice earlier if practicable.
The commissioner shall process the written report as expeditiously as reasonable, but shall not exceed 16 working hours. The 16-hour period shall commence upon receipt of the written report.
The director shall adopt regulations necessary to minimize the hazard to bees, while still providing for the reasonable and necessary application of pesticides toxic to bees to blossoming plants. The regulations may be limited to specific blossoming plants.
Regulations adopted pursuant to this section may be applicable to either the entire state or specified areas of the state. Regulations that are applicable to only specified areas of the state shall include provisions for the mandatory notice of movement of apiaries, including any relocation thereof within the area to which the regulations are applicable.
The regulations may also include provisions for timely notification of apiary owners of proposed pesticide applications, and limitations on the time and method of application of pesticides and the pesticides used.
Failure of a beekeeper to remove hives from a specific location, except during specific periods of time, as provided in subdivision (c) of Section 29102 after notification, shall not prevent the application of pesticides to blossoming plants if consistent with the pesticide’s labeling and regulations. When the pesticide applicator has complied with the notification pursuant to subdivision (c) of Section 29102 the applicator shall not be liable for injury to bees that enter the area treated during or after the application.
ARTICLE 8. Quarantine [29110. - 29114.]
The secretary may adopt by regulation and establish, maintain, and enforce a quarantine at the boundaries of, or within, the state, to protect the bee industry against the introduction or spread of any bee pest. The secretary may make and enforce such regulations as may be necessary to prevent any bees, comb, hives, or appliances from passing over any quarantine line that is established and proclaimed pursuant to this article.
If any quarantine is established pursuant to this article, no person shall move any bees, comb, hive, or appliance, across the lines established by the quarantine except pursuant to the regulations of the director.
If an inspector finds any pest or disease which is known to be contagious in any apiary, the inspector may hold the apiary and may require that abatement be performed under his or her direct supervision. The inspector shall give notice that the apiary is held to the owner or bailee and post a copy of the notice in a conspicuous place in the apiary.
If notice that an apiary is being held has been given pursuant to Section 29112, no person shall move the apiary, or any part of the apiary, or any other bee equipment from the location, unless the person is authorized by an inspector, until the hold order is released.
Upon request of the owner of any apiary which is held pursuant to an order by an inspector, the inspector shall release the hold order by issuing a permit to move the apiary if the inspector determines that the pest or disease has been abated. The permit shall state on it that the apiary had been under a hold order at the point of origin, was released from the hold order, and the date of release.
ARTICLE 9. Importation [29120. - 29128.]
Except as otherwise provided in Section 29121, no person shall import or transport into the state any comb, bees on comb, queen bees, package bees, bee semen, or any used hive or used appliance, unless each separate load, lot, or shipment is accompanied by a valid certificate prescribed by this article, and filed in a form and in the manner as set forth by the director, and unless the certificate is delivered to the commissioner of the county of destination or to the director, if there is no commissioner in the county, within 72 hours after the arrival of the load, lot, or shipment.
A person may import or transport any of the following into the state without complying with the requirements prescribed by Section 29120:
Packaged comb honey.
Empty package bee cages.
Moving screens.
Bee smokers.
Bee veils.
Hive tools.
No importation shall be allowed if it would violate any quarantine regulation adopted by the director pursuant to Section 29110.
The name and address of the owner or shipper and the place of destination in this state.
The number or amount of queen bees, package bees, bee semen, hives, or nuclei that contain bees, the number of used hives either empty or containing comb, and a complete list of any other used beekeeping equipment in the shipment.
The county and state or territory of origin.
The date on which inspection was last made of the apiary in which the bees, comb, used hives, and appliances originated.
That the apiary was found free of all pests denoted as pests by the State of California, using detection procedures and methods approved by the secretary.
If the pest is American foulbrood, the total number of colonies in the apiary at the time of inspection, and the number of colonies found infested.
That all American foulbrood colonies of bees found upon inspection were destroyed, removed to a quarantine apiary, removed to wax salvage, or other specified methods of destruction pursuant to Section 29208, before the issuance of the certificates.
In lieu of the requirements of Section 29122, the certificate required by Section 29120 may be a California certificate of inspection issued pursuant to Sections 29140 to 29145, inclusive, and showing the comb, bees on comb, or hives or appliances has or had been inspected in California within the 12 months prior to their return to California and at the time of the inspections had been found to have had less than 1 percent American foulbrood disease. Beekeepers or their agents shall carry a copy of the certificate with them and proof of ownership of the apiary and its contents, for production to the border inspectors on demand upon reentry.
Any shipment of bees on comb, used hives, or used appliances arriving in this state which is not accompanied by, where required by Section 29120, a valid certificate shall be refused entry and returned to the shipper or destroyed, at the option and expense of the owner or person in charge of the shipment.
The certificates required by Section 29120 are valid only during the inspection season in which they were issued, except that a certificate that covers a shipment arriving prior to April 1 from a locality that has severe winters shall be valid if it shows the last inspection of the apiary was made on or after August 15 of the preceding year.
If any bees, comb, hives, or appliances entering California are found to be diseased at the time of inspection in this state within 30 days after arrival, the inspector may hold the apiary, lot, or shipment. The inspector shall give notice to the owner or bailee, as prescribed in Section 29113, that the apiary, lot, or shipment is held.
If any load, lot, or shipment of bees, comb, hives, or appliances, entering California are found at the time of inspection in this state within 30 days after arrival to have more than 2 percent American foulbrood disease, that load, lot, or shipment of bees, comb, hives, or appliances shall be removed from the state and returned to the shipper.
After the American foulbrood disease or other disease has been abated, the inspector may release the hold order, if the release can be made without menace or harm from the disease to the bee industry of this state. If the release cannot be so made, after the disease has been abated, the remaining bees, comb, hives, and appliances shall be destroyed or shipped out of this state within 72 hours after the expiration of the abatement notice, at the option and expense of the owner or bailee.
ARTICLE 10. Exportation [29140. - 29145.]
As used in this article, “certificate” means the certification by a commissioner, or an inspector of the condition of any apiary which is to be transported to another state or country.
The board of supervisors of any county may estalish a schedule of fees for certificates for bees on comb to be paid by persons that request the certificates.
No fee shall be charged for certification required by any law, regulation, or requirement of the United States.
The schedule of fees for the certificates shall be based upon the estimated cost of the inspection.
A commissioner shall make reasonable inspection as may be necessary to determine the facts which are required by the state or country of intended destination and shall issue a certificate that states the facts which are determined upon receipt of the scheduled fee for a certificate or, if no scheduled fee has been established, upon request.
It is unlawful for any person to alter, deface, or misuse any certificate issued pursuant to this article.
ARTICLE 11. Wax Salvage [29150. - 29157.]
No person shall remove, salvage, or attempt to salvage, any bees, comb, honey, royal jelly, pollen, beeswax, or frames from any diseased colony, including American foulbrood disease, except pursuant to this article or Section 29074.
All wax salvage operations with respect to diseased colonies shall be performed in an enclosure which is constructed in accordance with specifications, and in the manner set forth, in regulations of the director.
The director shall prepare and furnish to interested parties upon request, uniform specifications for the construction of wax salvage plants, and adopt regulations for the operation of the plants in a manner to prevent the spread of pests or disease from the plants.
Any person that desires to maintain and operate a plant for the salvaging of wax, hives, and appliances from diseased apiaries shall apply to the director for an annual license for each separate wax salvage plant.
The director shall make such investigations as the director determines are necessary and shall issue the license without fee if the director is satisfied that the plant is constructed in accordance with specifications in, and that the plant will be operated pursuant to, regulations adopted pursuant to this article.
A license is good for the calendar year within which it is issued and shall expire on December 31, of that year, unless it is revoked or suspended sooner.
Any license which is issued pursuant to this article may be revoked or suspended, or a license renewal may be refused by the director, after hearing, if the director finds that the licensee has not complied with this article and the regulations adopted pursuant to it.
To the greatest extent possible, the proceedings for all hearings under this article shall be conducted pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The director shall have all the powers which are granted by the chapter.
ARTICLE 12. Sanitation [29170. - 29181.]
No person shall maintain or operate a diseased colony of bees, except pursuant to Section 29074.
No person shall conceal or attempt to conceal the fact that disease exists within an apiary.
No person shall sell any diseased bees, comb, hive, appliance, or colony.
No person shall abandon any diseased apiary.
No person shall expose to bees any comb or honey from a diseased colony of bees, except pursuant to Section 29074.
No person shall extract or render any honey, pollen, or wax from comb except in a building or enclosure which is so constructed as to prevent access by bees.
No person shall possess any comb which is not occupied by a live bee colony unless the comb is tightly enclosed to prevent access to the comb by bees.
Any hive or appliance which contains any comb that is not occupied by a live bee colony and that is accessible to bees constitutes a public nuisance. The hive or appliance shall be subject to abatement in the same manner as is provided in Article 14 (commencing with Section 29200) of this chapter for abatement of disease.
No person shall make honey available to bees by means of open air feeding.
All beekeepers shall provide movable frames in the brood area of all hives which they use to contain bees, and shall make provisions so the bees in the hives shall construct combs in the frames in such a way that the combs may be removed from the hives for inspection without damaging other combs in the hives.
The inspector shall order the owner, broker, or person in charge of any bees that are kept in a box or other unmovable or stationary comb hive to transfer the bees to a movable frame hive within a reasonable time, to be specified in the order. In default of transfer by the owner, broker, or person in charge of the bees, the inspector may destroy in a summary manner the hive and its contents.
No person shall place, in any combless package of bees or queen bees offered for sale or shipment, any food which contains honey.
ARTICLE 13. Colony Strength [29190. - 29195.]
The director may establish a system for certifying colony strength for bees used in the pollination of agricultural crops.
The colony strength of a bee colony shall be certified after inspection on the basis of the number of active frames of bees per colony, as determined by either cluster count or frame count, or both, or another method approved by the secretary.
The inspection and certification of colony strength of bees may be made by department employees, the commissioner or persons authorized by the commissioner, or persons appointed by the director.
Inspection and certification shall be made at the request of the beekeeper or agricultural producer involved. The party requesting the inspection and certification shall pay for the service. To the greatest extent possible, the inspector shall endeavor to give the beekeeper advance notice of the scheduled date of the inspection.
The director may by regulation establish reasonable fees to cover the cost of inspection and certification performed by department employees and persons appointed by the director, other than the agricultural commissioner.
The board of supervisors of the county may establish reasonable fees to cover the cost of inspection and certification performed by the commissioner.
ARTICLE 14. Apiary Inspection [29200. - 29213.]
The Legislature finds that in order to ensure the vitality of the apiary industry, to protect the welfare of the people of the State of California, as well as agricultural crops dependent upon bees for pollination, a pest inspection program should be an integral part of the regulatory scheme contained in this division. The Legislature further finds that without a continuing regular inspection program, including continued training for inspectors or commissioners in apiculture with curriculum approved by the secretary, as further specified in this article, the programs and requirements of law set forth in this division will be impaired.
The secretary, or the commissioner, or any inspector acting under their direction, may enter if they determine it to be necessary, any location where an apiary is maintained, and make an inspection of the apiary, including ancillary buildings. The inspector shall give notice of the inspection where the notice would not interfere with the purpose of the inspection. To the greatest extent possible, the beekeeper or their representative may be present for an internal inspection of the hives. The right of inspection shall occur at reasonable times, and shall not include any dwelling. If the inspector desires entry to any dwelling because the inspector suspects maintenance problems regarding a colony, hive, comb, or appliance therein, the inspector, upon request, shall obtain a warrant pursuant to the provisions of Section 1822.50 of the Civil Code and comply with the provisions therein. No person shall interfere with the entry of an inspector in the official course of the inspector’s duty. The inspector shall report the result of the inspection to the beekeeper, where feasible, within five days of the inspection. An inspector shall use appropriate sanitation protocols developed in conjunction with beekeeping industry, and included in the annual training.
If the inspector finds American foulbrood disease has infected more than two hives of 99 colonies or less, or 2 percent or more of colonies of 100 or more, the inspector shall make a complete inspection of all the hives in the apiary and the owner of the hives in the apiary shall pay the cost of the complete inspection. If the inspector finds American foulbrood disease has infested less than 2 percent of colonies of 100 or more as the result of an inspection made after the disease was brought to the inspector’s attention in writing, the commissioner may assess the costs of the inspection on the person who brought the disease to the inspector’s attention.
If, in the course of an inspection authorized by Section 29201, the inspector finds or has reason to suspect that there are pests in the apiary, the inspector shall plainly mark the hives or any part thereof which contain evidence of pest infestation. The inspector may place a band with a seal around a diseased hive.
If infestation is found in an apiary, the inspector shall notify the owner, broker, or person in charge or possession of the apiary in writing. The notice shall state the nature of the pest infestation found and the manner in which the inspector has marked the hives or any part of the hives that contain evidence of the infestation and shall order the abatement of the infestation within a specified time. No person after receiving notice shall refuse or neglect to abate the infestation within the time specified in the notice or order.
If the inspector, in the inspector’s judgment, believes summary abatement is necessary, the inspector may do so, or require that abatement be performed under the inspector’s direct supervision. The inspector may also issue a hold order against the apiary, giving notice that the apiary is held to the owner or bailee and posting a copy of the hold order in a conspicuous place in the apiary. No person, who has been given notice of a hold order, shall move the apiary or any part of the apiary or any other bee equipment from the location unless authorized by the inspector, until the hold order is released.
Every infested apiary is a public nuisance. The owner, broker, or person in charge or possession of any apiary, upon finding an infestation to be present, or upon receiving notice an infestation exists in the apiary, shall abate the infestation without undue delay, pursuant to the requirements of law.
The notice may be served upon the broker or the person that has possession or that owns the infested apiary, personally or by certified mail to their last known address. If the owner, broker, or person in charge or possession of any apiary is not known, the notice shall be served by posting it in a conspicuous place in the apiary.
If the infestation found in an apiary is American foulbrood, the time specified in the notice shall not be less than 24 hours nor more than 48 hours from the time the notice is served, except that the inspector may extend the time limit if necessary to prevent hardship and it can be done without undue danger of spreading the disease.
If American foulbrood is found in an apiary, the abatement shall be by killing the bees in the infested colonies and disposing of the hives and their contents, together with any other infested comb, hives, and associated appliances which are found in the apiary, in one of the following ways:
By delivery to a licensed wax salvage plant pursuant to this chapter.
By burning in a manner as set forth in Section 29208, the contents of the diseased colonies, including the bees, comb, and associated frames, together with any other diseased combs, and associated frames, which are found in the apiary in one of the following ways and disinfecting by scorching the hive bodies, covers, bottom boards, supers, and appliances associated with them:
Burning in a pit and burying the ashes not less than two feet below the surface of the ground.
Burning in an incinerator approved by the director. This section does not prevent federal and state research agencies from securing, transporting, and maintaining infested bees, comb, hives, appliances, or colonies pursuant to Section 29074.
If abatement is by burning or hazardous waste disposal, the person abating shall act in accordance with applicable air pollution control district or air quality maintenance district regulations and state and local fire control laws. If the regulations or laws prohibit burning immediately, the diseased colonies shall be sealed and placed in an enclosed structure and thereafter burned on the first date allowed by the regulation or law. All the activities shall be reported to the inspector before burning or disposal, who may require that burning or disposal occur only under the inspector’s supervision.
The inspector’s supervision shall be in addition to, but not in conflict with, the applicable air pollution control district or air quality management district regulations and fire control laws. Burning or disposal without the knowledge of the inspector is a violation of this section.
If abatement is by delivery to a licensed wax salvage plant, the person abating shall provide the inspector with information as to the date and location of delivery.
If the inspector determines that abatement by burning or hazardous waste disposal is appropriate, the inspector’s costs for supervising the burning or disposal shall be borne by the beekeeper with the diseased hives.
In lieu of the methods prescribed pursuant to Section 29151, operations to abate diseased colonies may be performed by any hazardous waste facility authorized to operate under Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code.
If the owner, broker, or person in charge or possession of an apiary in which an infestation is found to exist cannot be located after diligent search by the inspector, or if notice has been served pursuant to this article and the owner, broker, or person in charge or possession of the apiary refuses or neglects to abate the infestation within the time that is specified in the notice, the inspector shall abate the infestation within 72 hours after expiration of the time that is specified in the notice. The cost of abatement shall be paid by the owner of the apiary.
If an abatement notice as required by this article has been served upon the owner or bailee of an apiary, the owner or bailee, before the expiration of the time specified in the notice, may appeal from the inspector’s field determination of the infestation named in the notice by sending a written appeal to the director with a specimen of the infested material chosen and sealed for transportation jointly by the owner or bailee and the inspector, which is accompanied by a statement signed by the owner or bailee and the inspector, attesting to the fact that such specimen was obtained from the portion of the apiary described in the abatement notice.
In those instances when the inspector has sealed the infested hive after making a field determination, if a beekeeper appeals the inspector’s field determination, the owner or bailee of the apiary and the inspector shall jointly break the seal and take the sample for appeal. If the band is broken in the absence of the inspector, no appeal shall be valid and the infestation shall be abated as described in the abatement notice.
The specimen shall be subjected to a laboratory diagnosis by the director, or at his or her direction. The written determination which sets forth the findings of the diagnosis is final proof of the nature of the infestation which exists in the apiary.
The disease which is named by the director in a written response to the appeal may be abated pursuant to this chapter. Pending the determination of the director, the time which is specified in the abatement notice shall be extended by the number of hours between the forwarding of the representative specimen and the receipt of the written determination from the director by the inspector, and the service of a copy of the written determination upon the owner or bailee that made the written appeal. If the owner or bailee cannot be found after due diligence, the extended time shall expire when a copy of the director’s determination is served by posting it in the apiary.
ARTICLE 15. Enforcement and Penalties [29300. - 29313.]
The director, and the commissioner of each county under the direction and supervision of the director shall enforce this chapter.
The director may make any regulations that are reasonable and necessary to carry out this chapter.
Unless otherwise stated, it shall be an infraction for any person to fail to comply with any requirement of this chapter, or regulations adopted pursuant to this chapter, after a warning notice of seven days is given. However, there shall be no warning notice for infractions involving the following sections:
Subdivisions (b) and (c) of Section 29046.
Subdivisions (b) and (c) of Section 29056.
Section 29072.
Section 29111.
Section 29113.
Section 29120.
Section 29126.
Section 29127.
Section 29145.
Section 29150.
Section 29170.
Section 29171.
Section 29172.
Section 29173.
Section 29204.
Violations shall be referred to the district attorney in the affected county, or to the Attorney General if the district attorney is not able to prosecute the matter. For purposes of this chapter, each incident shall constitute a separate infraction. When violations of provisions governing hives or colonies are involved, each separate hive or colony shall constitute a separate infraction. Notwithstanding any other law, the maximum penalty of each infraction shall be one hundred dollars ($100) for the first hive or colony, plus one dollar ($1) for each additional hive or colony not in compliance, as applicable to a maximum penalty not to exceed one thousand dollars ($1,000), except that a violation of Section 29070 or 29070.5 shall be subject to a maximum fifty dollar ($50) fine. This section does not prevent the secretary or the commissioner from initiating any procedures for issuance of a prior warning notice or notice to correct.
It shall be an infraction for any person to fail to comply with any notice or order which is issued pursuant to this chapter subject to the penalties set forth in Section 29302.
In addition to the penalties outlined in Sections 12999.5, 29302, and 29303, any person not complying with this chapter, a regulation adopted thereto, or any notice or order issued pursuant to this chapter or regulation, shall be subject to a civil penalty of not more than five hundred dollars ($500) for each day that the violation continues.
The secretary or commissioner may also seek injunctive relief against any person operating in violation of this chapter or regulations adopted thereto, or violation of any order or notice issued pursuant to the authority of this chapter or regulation adopted thereto.
Any action for recovery of civil penalties or injunctive relief shall be referred to the Attorney General.
Any penalties recovered under this chapter, whether criminal or civil, shall be paid into a special account maintained by the department, and shall be used for the administration of Section 29302, except that up to 50 percent of the costs incurred by a district attorney in prosecuting a case under Section 29302 shall be reimbursed from whatever penalties are obtained from the prosecution.
In determining the amount of any civil or criminal penalty provided for in this chapter, the court shall consider the seriousness of the conduct, and all relevant circumstances including, but not limited to, the extent of the harm caused by the conduct; the motive and persistence of the conduct; the length of time over which the conduct occurred; the economic impact on the person involved, whether a corporation or an individual; and any corrective action taken by the person.
In addition to any other penalty provided for by law, and by this article, any person who willfully or intentionally violates any provisions of this chapter shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall be recovered in a civil action brought in the name of the people of the State of California by the Attorney General.
Any person who violates any injunctive order issued pursuant to subdivision (b) of Section 29304 shall be subject to a civil penalty, in addition to any other penalty provided for by law, not to exceed six thousand dollars ($6,000). Where the conduct constituting a violation is of a continuing nature, each day of violative conduct shall be a separate and distinct violation.
The director shall appoint a supervisor of apiary inspection and such qualified state apiary inspectors as may be necessary.
Each commissioner is an ex officio state apiary inspector and may appoint one or more inspectors, qualified pursuant to the regulations of the director, to be county apiary inspectors.
The director may assign one or more qualified state apiary inspectors to perform the duties of a county apiary inspector in any county for such time and rate of compensation as may be determined by agreement with the board of supervisors pursuant to Section 482. The state apiary inspector shall be under the direction and supervision of the commissioner if there is a commissioner in the county to which the inspector is assigned.
The penalties prescribed by this chapter are exclusive and no other civil penalties may be assessed, except as specified in Section 12999.5.
In any civil action for the wrongful and willful taking, possessing, harboring, or transporting of a beehive, for the wrongful and willful removal of bees from their beehive, or for the wrongful and willful killing or destroying of bees without the consent of the owner or the person lawfully in possession of those bees, the damage caused to the plaintiff shall be three times the value of the bees at the time of the taking, possessing, harboring, transporting, destroying, or vandalizing of the bees, plus an amount in fair compensation for the time and money properly expended by the plaintiff in recovering or replacing the bees.
In lieu of prosecution, and in addition to any other penalty that is provided in this chapter, the secretary or the commissioner may impose an administrative civil penalty on a person who violates Article 4 (commencing with Section 29040) or Article 5 (commencing with Section 29070), Article 10 (commencing with Section 29671) of Chapter 2, or any regulations adopted pursuant to this chapter to implement those articles.
An administrative civil penalty imposed pursuant to this section shall be levied in proportion to the violation, measured as either “serious,” “moderate,” or “minor.”
“Serious” violations are repeat or intentional violations, punishable by an administrative civil penalty of not less than four hundred one dollars ($401) and up to a maximum of one thousand dollars ($1,000) per violation.
“Moderate” violations are repeat violations or violations that are not intentional, punishable by an administrative civil penalty of not less than one hundred fifty-one dollars ($151), but not more than four hundred dollars ($400) per violation.
“Minor” violations are violations that are procedural in nature, punishable by an administrative civil penalty of not less than fifty dollars ($50), but not more than one hundred fifty dollars ($150) per violation.
Before an administrative civil penalty is imposed pursuant to this section, the person charged with the violation shall receive written notice of the proposed action, including the nature of the violation and, if applicable, the amount of the proposed civil penalty. The person shall have the right to request a hearing within 20 days after receiving notice of the proposed action. A notice that is sent by certified mail to the last known address of the person charged shall be considered received even if delivery is refused or if the notice is not accepted at that address. If a hearing is requested, notice of the time and place of the hearing shall be given at least 10 days before the date set for the hearing. At the hearing, the person shall be given an opportunity to review the secretary’s or the commissioner’s evidence and to present evidence on the person’s own behalf. If a hearing is not timely requested, the secretary or the commissioner may take the action proposed without a hearing.
If the person, upon whom the commissioner imposed an administrative civil penalty, requested and appeared at a hearing, the person may appeal the commissioner’s decision to the secretary within 30 days of the date of receiving a copy of the commissioner’s decision. The following procedures apply to the appeal:
If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days before the date set therefor. The times may be altered by mutual agreement of the appellant, the commissioner, and the secretary.
The secretary shall decide the appeal on the record of the hearing, including the written evidence and the written argument described in paragraph (2), that the secretary has received. If the secretary finds substantial evidence in the record to support the commissioner’s decision, the secretary shall affirm the decision.
The secretary shall render a written decision within 45 days of the date of appeal or within 15 days of the date of oral arguments or as soon thereafter as practical.
On an appeal pursuant to this section, the secretary may affirm the commissioner’s decision, modify the commissioner’s decision by reducing or increasing the amount of the civil penalty levied, if applicable, so that it is within the secretary’s guidelines for imposing administrative civil penalties, or reverse the commissioner’s decision. Any civil penalty increased by the secretary shall not be higher than that proposed in the commissioner’s notice of proposed action given pursuant to subdivision (c). A copy of the secretary’s decision shall be delivered or mailed to the appellant and the commissioner.
Any person who does not request a hearing with the commissioner pursuant to a civil penalty imposed under subdivision (c) may not file an appeal to the secretary pursuant to this subdivision.
Review of a decision of the secretary may be sought by the appellant within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
After the exhaustion of the appeal and review of procedures provided in this section, the commissioner, or the commissioner’s representative, may file a certified copy of a final decision of the commissioner that directs the payment of a civil penalty, and, if applicable, a copy of any decision of the secretary, or the secretary’s authorized representative, rendered on an appeal from the commissioner’s decision and a copy of any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. No fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section.
In addition to the administrative civil penalties prescribed in subdivision (b), the appellant may be required to cover the cost of the administrative hearing unless the decision of the secretary or the commissioner is overturned.
This section shall become operative on January 1, 2021.
ARTICLE 16. Africanized Honey Bees [29320. - 29322.]
The secretary, in consultation with the board, may approve programs statewide to train, on a voluntary basis, beekeepers, inspectors, or commissioners in contemporary and geographically relevant colony management, including, but not limited to, the maintenance of colonies free from Africanized honey bees.
Any hive or comparable apparatus that is not occupied by a live bee colony, and that is accessible to bees, is a public nuisance. The hive or apparatus shall be subject to abatement in the manner provided for in Article 14 (commencing with Section 29200).
The governing board of a city, county, or city and county may, by ordinance, establish procedures for the abatement of a hive or comparable apparatus where Africanized or overly defensive honey bees are present.
In the absence of a local ordinance adopted pursuant to subdivision (a), if a commissioner determines that the presence of Africanized or overly defensive honey bees in a hive is a public nuisance or if Africanized or overly defensive honey bees from a hive are entering land other than the land upon which the hive is located so as to endanger the public health, safety, or welfare or so as to create an unreasonable interference with the use of the property of others, the commissioner may take any action necessary to abate the public nuisance, including, but not limited to, moving, selling, destroying, or otherwise disposing of the infested hive in accordance with local administrative procedures.
CHAPTER 2. Honey [29401. - 29735.]
ARTICLE 1. Definitions [29401. - 29421.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Adulterated honey” means any honey to which has been added honeydew, glucose, dextrose, molasses, sugar, sugar sirup, invert sugar, or any other similar product except the nectar of floral exudations of plants gathered and stored in the comb by honeybees.
“Agent” includes broker, commission merchant, auctioneer, solicitor, seller on consignment, and any other person that is acting upon the actual or implied authority of another.
“Clean and sound containers” means containers which are virtually free from rust, stains, or leaks.
“Comb honey” means honey which is in the comb.
“Container” means any box, crate, chest, carton, barrel, keg, or other receptacle which contains honey.
“Crystallized honey” means honey which has assumed a solid form due to the crystallization of one or more of the natural sugars in it.
“Deceptive arrangement” or “deceptive display” means any lot, load, arrangement, or display of honey which has in any exposed surface, honey which is so superior in quality, appearance, or condition, or in any other respects, to any of the honey which is concealed or unexposed as to materially misrepresent any part of the lot, load, arrangement, or display.
“Deceptive pack” means any container or subcontainer of honey which has, in any exposed surface, honey or honeycomb, so superior in quality, appearance, condition, or in any other respect to the honey in the interior of the container or subcontainer, or the unexposed portion, as to materially misrepresent the contents. It includes any pack:
Even though the honey in a container is virtually uniform in quality as defined in this chapter, if the outer or exposed surface is composed of honey which is not an accurate representation of the variation in quality of the honey in the entire container.
Which is slack-filled, unless the container is so marked, even though such container is marked with the proper net weight of the honey which it contains.
“Domestic honey” means comb or extracted honey produced within one of the states of the United States.
“Extracted honey” means honey which has been removed from the comb.
“Foreign material” means wax particles, insects, or other materials which were not deposited by bees. It does not, however, include decorative artificial leaves or blossoms.
“Honey” means the natural sweet substance produced by honeybees from the nectar of plants or from secretions of living parts of plants or excretions of plant sucking insects on the living parts of plants, which the bees collect, transform by combining with specific substances of their own, deposit, dehydrate, store, and leave in the honeycomb to ripen and mature.
“Blossom honey” or “nectar honey” means the honey that comes from nectars of plants.
“Honeydew honey” means the honey that comes mainly from excretions of plant sucking insects (Hemiptera) on living parts of plants or secretions of living parts of plants.
Honey consists essentially of different sugars, predominantly fructose and glucose as well as other substances such as organic acids, enzymes, and solid particles derived from honey collection. The color of honey can vary from nearly colorless to dark brown. The consistency can be fluid, viscous, or partially to completely crystallized. The flavor and aroma vary, but are derived from plant origin.
Honey sold as described in subdivision (d) shall not have added to it any food ingredient, including food additives, nor shall any other additions be made other than honey. Honey shall not have any objectionable matter, flavor, aroma, or taint absorbed from foreign matter during its processing and storage. Honey shall not have begun to ferment or effervesce and no pollen or constituent particular to honey may be removed except where unavoidable in the removal of foreign inorganic or organic matter.
Honey shall meet the following standards:
Honey shall not be heated or processed to such an extent that its essential composition is changed or its quality is impaired.
Chemical or biochemical treatments shall not be used to influence honey crystallization.
Honey shall not contain more than 20 percent moisture content and for heather honey not more than 23 percent.
Honey shall contain not less than 60 percent fructose and glucose, combined.
Honeydew honey and blends of honeydew honey with blossom honey shall not contain less than 45 percent fructose and glucose, combined.
Blossom honey shall not contain more than 5 percent sucrose, except for the following:
Alfalfa (Medicago saliva), citrus spp., false acacia (Robinia pseudoacacia), French honeysuckle (Hedysarum), Menzies banksias (Banksia menziesii), red gum (Eucalyptus camaldulensis), leatherwood (Eucryphia lucida), and Eucryphia milligani may contain up to 10 percent sucrose.
Lavender (Lavandula spp.) and borage (Borago officinalis) may contain up to 15 percent sucrose.
The water insoluble solids content for honey other than pressed honey shall not be more than 0.1g/100g. The content for pressed honey shall not be more than 0.5g/100g.
“Honeybees” means honey-producing insects of the genus Apis mellifica.
“Honeydew” means the dextrorotatory saccharine exudation of plants or insects, except nectareous exudations, which is gathered and stored in the comb by honeybees.
“Imported honey” means comb or extracted honey imported from any territory or foreign county or honey which is repackaged into subcontainers as a blend with honey imported from one or more other countries.
“Mislabeled” means the placing or presence of any false or misleading statement, design, or device upon, or in connection with, any container or lot of honey, or upon the label, lining, or wrapper of any such container, or any placard used in connection with any container or lot of honey, which has reference to such honey. A statement, design, or device is false and misleading, if the honey to which it apparently or actually refers does not conform in every respect to such statement.
“Pack,” or “packing” or “packed,” means the arrangement of all or a part of the subcontainers in any container.
“Placard” means any sign, label, or designation, except an oral designation, which is used in connection with any honey as a description or identification of it.
“Section box” means the wood or other frame in which bees have built a small comb of honey.
“Slack-filled” means that the contents of any container occupy less than 85 percent of the volume of the closed container.
“Subcontainer” means any section box or other receptacle which is used within a container.
ARTICLE 2. General Provisions [29441. - 29451.]
The director and the commissioners of each county of the state, their deputies and inspectors, under the supervision and control of the director shall enforce this chapter.
The refusal of any officer who is authorized pursuant to this chapter to carry out the orders and directions of the director in the enforcement of this chapter is neglect of duty.
The director may do all of the following:
Prescribe by regulation methods of selecting samples of lots or containers of honey, which shall be reasonably calculated to produce by such sampling fair representations of the entire lots or containers sampled.
Establish by regulation and issue official color charts which depict the color standards and requirements established in this chapter.
Make such other regulations as are reasonably necessary to secure uniformity in the enforcement of this chapter.
Any sample which is taken pursuant to this chapter is prima facie evidence of the true condition of the entire lot in the examination of which the sample was taken. The presumption established by this paragraph is a presumption affecting the burden of proof.
An enforcing officer may do all of the following:
Enter and inspect any place or conveyance within the county or district over which he has jurisdiction, where any honey is produced, stored, packed, delivered for shipment, loaded, shipped, being transported, or sold.
Inspect all honey and the containers of honey and equipment which is found in any place or conveyance which he is authorized to enter and inspect.
Take for inspection, such representative samples of the honey and such containers, as may be necessary to determine whether or not this chapter has been violated.
An enforcing officer shall cause the prosecution of any person whom he knows or has reason to believe is guilty of violating any provision of this chapter.
Any enforcement officer may, while enforcing this chapter, seize and hold as evidence all or any part of any pack, load, bulk lot, consignment, or shipment of honey packed, delivered for shipment, loaded, shipped, or being transported, or sold in violation of this chapter, or any container of such product, as may in his judgment be necessary to secure the conviction of the party he knows or believes has violated or is violating any provision of this chapter.
If any markings are used or required to be used by this chapter on any container of honey to identify the container or describe its contents, the markings shall be plainly and conspicuously marked, stamped, stenciled, printed, labeled, or branded in the English language, unless the container is intended for and is shipped outside of the United States, in letters which are large enough to be readily discernible by any person, upon the top, front, or side of the container. If the marking is on a placard which is used in a display, the placard shall be placed or posted in such a position that there is no doubt as to the product which it is to identify.
Any person, forwarding company, or common carrier may decline to ship or transport any honey if notified by any enforcing officer of this chapter, that the honey is found to be delivered for shipment in violation of this chapter.
Any person, forwarding company, or common carrier may reserve the right, in any receipt, bill of lading or other writing which is given to the consignor of any honey, to reject for shipment and to return to the consignor or hold at his expense and risk all honey, which, upon inspection, is found to be delivered for shipment in violation of this chapter.
Honey may not be labeled honey or words of similar import or represented to be honey unless manufactured by bees. No product may be labeled imitation honey or words of similar import or represented to be imitation honey.
ARTICLE 3. Exemptions [29471. - 29474.]
If the requirements prescribed by this article are satisfied, all of the following ungraded honey is exempt from the remaining provisions of this chapter:
Honey which is intended to be used in commercial processing, as for clarifying and packing in retail or wholesale containers.
Honey which is intended for the manufacture of honey products for resale.
Honey which is being delivered to any person for grading, packing, processing, or reconditioning.
The containers of the ungraded honey shall not bear any false or misleading statements or be deceptively packed
The owner or person in possession of the ungraded honey shall, on demand of any enforcing officer under this chapter, give to the officer a sworn statement in writing, which was made before a notary public, that specifies all of the following:
That the honey will be disposed of or used pursuant to this article.
The name and address of the person to whom such honey is to be delivered.
An accurate identification of the honey.
A person who makes a sworn statement pursuant to Section 29473 shall, within a reasonable time after the demand and receipt by the officer of the statement, present a written receipt to the commissioner of the county which is specified in the statement as the destination of the honey.
The receipt shall contain a signed statement by the person receiving such honey, that the honey, giving an accurate description of it, has been received.
ARTICLE 4. Standard Honey Containers [29501. - 29504.]
The standard units of net weight of honey in containers are as established by this article.
Containers which hold the following units of weight of honey are standard containers:60pounds2pounds12 pounds112 pounds10 pounds1pound6 pounds12ounces avoirdupois5pounds8 ounces avoirdupois3pounds5ounces avoirdupois212 pounds
When honey is prepared for, and is shipped directly to, any foreign country, the containers of honey shall not be required to meet the unit of net weight standards required by the provisions of this article.
Any person preparing or shipping such honey shall, upon request of an enforcing officer, furnish such affidavits, receipts, or other evidence as may be required by the director, by regulations, as proof that such honey was, or is being, in fact prepared for, and shipped directly to, a foreign country.
The director may promulgate regulations to permit the preparation, packing, shipment, or sale of honey in an experimental type of container which does not conform to the standards prescribed in this article. These regulations shall include container labeling standards which comply with the requirements of this chapter.
ARTICLE 5. California Color Standards [29531. - 29531.]
The classes as to color comprising the California standards shall conform to the United States color standards, using the readings on the Pfund honey scale.
ARTICLE 6. Emergency Standards, Containers, Color Classifications, and Markings [29551. - 29561.]
As used in this article, “emergency standard” means any emergency standard for honey, standard units of weight, type of container, color classifications, or markings required upon containers which is established by the director pursuant to Section 29552.
The director, upon petition of persons that are interested in the production or handling of honey, or upon his own motion, may establish emergency standards for honey, standard units of net weight, type of container, color classifications, or marking upon any container, if he makes any of the following findings regarding any provision of this chapter which relates to any of such subjects:
It is difficult or impossible of performance by reason of laws or orders promulgated by authority of the government of the United States, or the standard weights are not appropriate for the country of destination as to honey intended to be shipped outside the United States, or because of scarcity of materials, labor, or equipment used in the production or marketing of honey regulated by this chapter.
It results in a serious waste of honey otherwise available for human consumption, or in serious waste of other resources.
It prevents the utilization of new technological developments to the serious disadvantage of producers or handlers of honey in this state.
Emergency standards shall apply in lieu of the standards for honey, standard units of net weight, type of container, color classifications, or markings required upon any container set forth in this chapter.
Every emergency standard which is established pursuant to this article shall be reasonably calculated to effectuate the purposes of the standard which it supersedes. No emergency standard shall be established which tends to lower any standard which relates to carrying or keeping quality of honey.
No emergency standard shall be construed to modify in any respect any provision of this chapter which is designed to prevent deception or mislabeling, or which is designed to prevent the marketing of honey which is unwholesome or which would fail to give consumer satisfaction.
Every emergency standard which is issued pursuant to this article, before it may become effective, shall be published in one or more newspapers, trade papers, or industry publications which are deemed best adapted to give notice to interested persons, together with a notice of the time and place for hearing objections.
The hearing shall be not less than 10 nor more than 20 days from the date of publication.
Notice of hearing shall be mailed not less than 10 days prior to the date of the hearing to all persons that have filed with the director a request for notice of such hearings.
At the hearing, interested parties shall be heard and a record kept of the proceedings for determination by the director of the facts which are shown at the hearing. If it is developed by competent testimony that additional time will be required to produce further essential evidence, the director shall continue the hearing to a date which will allow sufficient time for the production of such evidence.
The director, upon his findings on the facts shown at the hearing, shall rescind, modify, or affirm the emergency standard as published. The action of the director in rescinding, modifying, or affirming any emergency standard shall take effect on the day appointed therefor, and the emergency standard, as modified or affirmed, shall continue in effect until it is suspended or rescinded by the director, or until the 91st day after adjournment of the next regular session of the Legislature, whichever first occurs.
Any emergency standard may be amended, suspended, or rescinded upon notice and hearing pursuant to the same procedure as is provided for the establishment of such standard.
ARTICLE 7. Comb Honey [29581. - 29587.]
All comb honey shall be conspicuously marked, either on the section or on its individual container, with all of the following:
The name and address of the producer or distributor of the comb honey.
The net weight of the comb section, stated in terms of whole ounces.
One of the United States grades which are established for honey by the United States Department of Agriculture.
All comb honey shall meet the requirements of the color classification and grades as defined in United States grades, color standards, and packing requirements for honey by the United States Department of Agriculture, according to the color classification and grade as marked.
Any container of comb honey which is marked as to color shall be considered as properly marked if the color of the honey in the container is equal to or lighter than the description as marked.
Opaque containers of bulk or chunk comb honey shall be marked with the color the honey would be if extracted, unless it is in the unclassified grade.
If comb honey is in crystallized form, a sample of the honey shall be liquefied and the honey graded on the liquid basis.
In order to allow for variations which are incident to proper grading and handling, not more than 5 percent, by count, of the containers or of the subcontainers in any lot of honey may be below the requirements for the grade.
Comb honey which has crystallized shall be conspicuously marked with the word “crystallized” on a placard which is used in connection with such honey that has reference to it.
ARTICLE 8. Extracted Honey [29611. - 29620.]
Every container or subcontainer of extracted honey shall be conspicuously marked with all of the following:
The name and address of the producer or distributor of the extracted honey.
The net weight of the honey in the container.
One of the United States grades which are established for honey by the United States Department of Agriculture. This subdivision does not, however, apply to honey to which pollen has been added, if the amount of pollen added is visible and each such container is plainly and conspicuously labeled with the words “pollen added”.
In the case of any opaque container, with the color of the honey.
All extracted honey shall meet the requirements of the color classifications and grades as defined in United States grades, color standards, and packing requirements for honey by the United States Department of Agriculture, according to the color classification and grade as marked.
Any container of extracted honey which is marked as to color shall be considered as properly marked if the color of the honey in the container is equal to or lighter than the description as marked.
If extracted honey is in crystallized form, a sample of the honey shall be liquefied and the honey graded on the liquid basis.
All extracted honey regardless of grade term as marked, shall be free from serious damage and at least as free from excessive foreign material as honey that has been strained through standard bolting cloth of 23 meshes per inch. Serious damage means any injury or defect that seriously affects the appearance or edibility of the honey such as any of the following:
Overheating, which destroys both natural color and flavor.
Fermentation, which causes either foam or sourness, or both.
Objectionable flavor from any substance or thing other than floral source.
In order to allow for variations which are incident to proper grading and handling, not more than 5 percent, by count, of the containers or of the subcontainers in any lot of honey may be below the requirements for the grade, but no part of this tolerance is allowed for defects which cause serious damage, as defined in Section 29615.
If the color of extracted honey is designated on the container or subcontainer, or upon a placard which has reference to such honey, it shall conform to the color definitions provided in this chapter.
Any honey which is a blend of two or more floral types of honey shall not be labeled as honey from any one particular floral source alone unless one floral type is predominant. If one floral type is predominant, such honey may be labeled as to the predominant floral type, as determined by flavor.
Any slack-filled container shall be conspicuously marked “slack-filled.”
Extracted honey in containers which hold five ounces or more, shall be packed in standard containers and sold in the exact units of weight as set forth in the table of standard weights of honey in containers provided for in Section 29502.
If the combined net weight of the extracted honey in all subcontainers contained in one master container is equal to one of the units of weight specified in Section 29502, the unit is a standard unit of weight if sold as a unit directly to the consumer.
ARTICLE 9. Labeling of Honey as to Origin and Flavor [29641. - 29644.]
Any container or subcontainer of extracted honey which is produced entirely within this state may be conspicuously marked with the name “California.”
A container or subcontainer of comb or extracted honey shall not be marked or labeled with the name “California” unless the honey in the container or subcontainer was produced entirely within this state.
Every container and subcontainer of imported honey shall be labeled with the name of the territory or foreign country from which it is imported or, when it is repackaged subsequent to importation, in accordance with subdivision (a) or (b):
As “imported,” if repackaged either as a blend with honey imported from one or more other foreign countries or is repackaged without such blending.
As “domestic and imported blend,” if blended with domestic honey.
If the floral flavor of comb or extracted honey is stated on the container the honey contained in the container or subcontainer shall be true to such flavor, unless the honey is a blend of two or more floral types and one floral type is predominant. If the honey is such a blend, it may be labeled as to the predominant floral type as determined by flavor.
ARTICLE 10. Violations [29671. - 29677.]
It is unlawful for any person to prepare, pack, place, deliver for shipment, deliver for sale, load, ship, transport, or sell any honey, adulterated honey or any product which is marked, labeled, or designated as honey, in bulk or in any container or subcontainer which does not conform to the provisions of this chapter.
It is unlawful for any person to prepare, pack, place, deliver for shipment, load, ship, transport, or sell a deceptive pack, lot, load, arrangement, or display of honey.
It is unlawful for any person to mislabel any container or subcontainer of honey or place any false or misleading statement on any wrapper, label, or lining of any container of honey, or on any placard which is used in connection with or which has reference to any honey.
It is unlawful for any person to place or pack any honey in any container or subcontainer which bears any markings, or any designation of brand, quality, grade, or other matter, unless all of such markings which do not properly and accurately apply to the product placed or packed in the container or subcontainer have been removed, erased, or obliterated.
It is unlawful for any person to move any honey, or any container of honey, to which any warning tag or notice has been affixed, except under written permit from an enforcing officer or under his or her specific direction.
A violation of this section is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) nor more than three thousand dollars ($3,000) or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
It is unlawful for any person to do either of the following:
Refuse to submit any container, subcontainer, load, or display of honey to the inspection of any enforcing officer.
Refuse to stop any vehicle which contains any honey, for the purpose of inspection by an enforcing officer.
A violation of this section is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) nor more than three thousand dollars ($3,000) or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
It is unlawful for any person to prepare, pack, place, deliver for shipment, load, ship, transport, or sell, any of the following:
Adulterated honey, unless the container is conspicuously marked, in letters or type of like size and character, which clearly and plainly indicate the contents.
Any product which is labeled or marked with the designation “honey” alone, if the contents consist of part or all of products other than the nectar of floral exudations of plants which is gathered and stored in the comb by honeybees.
ARTICLE 11. Criminal Punishment and Procedure [29701. - 29703.]
Unless otherwise specified, a violation of this chapter is an infraction punishable by a fine of not more than five hundred dollars ($500).
A conviction of a second or subsequent violation of this chapter within any 12-month period is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
Any prosecution for the violation of any provision of this chapter may be made in any county where any part of the offense occurred.
Any evidence which is taken by any enforcing officer in any county may be admitted in evidence in any prosecution in any other county.
ARTICLE 12. Public Nuisances [29731. - 29735.]
Any honey which is packed, stored, delivered for shipment, loaded, shipped, or being transported or sold in violation of any provision of this chapter, together with its containers, is a public nuisance. The honey shall be held by the person in whose possession it may be and shall not be moved from the place where it may be, except under the specific direction of an enforcement officer.
The enforcement officer may affix a warning tag or notice to the honey and its containers which are a public nuisance.
If a packer or owner of honey, or the agent of either, after notification to the packer, owner, or agent that the honey and its containers are a public nuisance, refuses, or fails within a reasonable time, to recondition or remark the honey so as to comply with all requirements of this chapter, the honey and its containers:
May be seized by the director or any enforcement officer.
By order of the superior court of the county within which the honey and its containers may be located, shall be condemned and destroyed, or released upon conditions the court, in its discretion, may impose to ensure that it will not be packed, delivered for shipment, shipped, transported, or sold in violation of this chapter. A proceeding under this section is a limited civil case if the value of the property in controversy is less than or equal to the maximum amount in controversy for a limited civil case under Section 85 of the Code of Civil Procedure.
If an agent is found in possession of any honey which is a public nuisance, notice of rejection or any order of the court concerning the honey may be served on such agent and need not be served on the packer or owner.
It is unlawful for any person to fail to comply with the directions of any officer relating to the disposition of any honey which is a public nuisance, or with any order of court respecting it.
CHAPTER 3. Seedless Mandarin and Honeybee Coexistence Working Group Act [29810. - 29812.]
The Legislature finds and declares all of the following:
The California citrus industry is in the process of adapting to a more competitive marketplace and to consumer tastes that continue to change. In the past five years, an estimated 40,000 acres of citrus have been removed from production and replaced with new varieties of citrus, a majority of which is mandarin fruit commonly called Clementines or W. Murcotts, which are intended to be seedless.
According to the 2005 California Citrus Acreage Report, these varieties have increased substantially. In 2004, more than 10,000 acres of these varieties were bearing fruit. Another 2,000 acres began bearing fruit in 2005. The same report states that an additional 12,000 acres of these varieties have been planted but have yet to bear fruit. This production will come into maturity within the next three years, and more is being planted.
Due to the production of other agricultural products in proximity to new seedless varieties of citrus, the production of these varieties may be in jeopardy. According to a University of California at Riverside study published in June of 2005, seedless mandarins command three to four times as much revenue as seeded mandarins. Other citrus-producing nations around the world have adopted citrus protection areas to limit damage created by cross-pollination.
Honeybees are an essential component of agriculture as they pollinate approximately $6 billion worth of crops in California. Historically, honeybee colonies are placed in the citrus belt of Kern, Tulare, Fresno, and Madera Counties to support existing agricultural practices, including the pollination of several commodities and the production of honey. Colony Collapse Disorder has reduced the nation’s bee population by 25 percent in the past three years, which in turn has created pressure on other agricultural sectors that rely on a healthy bee population for pollination of their crops.
Any regulation or best management practice adopted pursuant to this chapter shall not affect the actual pollination process of other commodities during their blooming cycle, nor shall it be implemented when almonds, avocados, peaches, plums, nectarines, seed crops, or other commodities require pollination.
Any regulation or best management practice adopted pursuant to this chapter shall not affect the ability of property owners located within the area impacted by the regulation or best management practice to farm any commercial crop, including, but not limited to, honey, citrus, and other commodities recognized by the Department of Food and Agriculture.
Not later than 15 days after enactment of this chapter, the secretary shall designate a Seedless Mandarin and Honeybee Coexistence Working Group from recommendations received by interested stakeholders. The Seedless Mandarin and Honeybee Coexistence Working Group shall be established pursuant to the procedures set forth in subdivision (b) of Section 588. For purposes of this chapter, “grower,” as used in subdivision (b) of Section 588, includes a beekeeper.
The Seedless Mandarin and Honeybee Coexistence Working Group shall meet on a regular and consistent basis in an effort to develop best management practices that address the coexistence issues related to production of seedless mandarin varieties located in Fresno, Kern, Madera, and Tulare Counties, while providing for the reasonable access to citrus for the California bee industry.
The secretary shall give the Seedless Mandarin and Honeybee Coexistence Working Group reasonable time to develop best management practices described in Section 29810.
If the Seedless Mandarin and Honeybee Coexistence Working Group reaches consensus of best management practices prior to June 1, 2008, the secretary may adopt regulations if, in the secretary’s judgment, this action is necessary to implement and enforce the best management practices.
If the Seedless Mandarin and Honeybee Coexistence Working Group fails to reach consensus on best management practices by June 1, 2008, the secretary shall adopt regulations no later than February 1, 2009. Regulations adopted pursuant to this section shall be limited to Fresno, Kern, Madera, and Tulare Counties, address the coexistence issues related to production of seedless mandarin varieties, and allow seedless mandarin producers to meet retail standards for seedless fruit, while providing reasonable access to citrus for the California bee industry. The regulations adopted may include the establishment of fees, not to exceed the cost of the program, to be paid by seedless mandarin growers, subject to this chapter.
DIVISION 14. REGULATION AND LICENSING OF DOGS [30501. - 31683.]
CHAPTER 1. General Provisions [30501. - 30505.]
The board of supervisors of any county or the governing body of any city may adopt Sections 30801, 30802, 30803, 30804, 30805, 30952, 31105, 31106, 31107, 31108, 31152, 31153, 31251, 31252, and 31254. If those sections are adopted by the board of supervisors of any county or the governing body of any city, those sections shall apply within the territorial limits of the county or the city, as the case may be. Nothing in this division requires a county to enforce those provisions within the territorial limits of any city located within the county.
Whenever the term “board of supervisors,” “county,” “county clerk,” or “animal control officer” is used in this division, those terms shall also be deemed to include the governing body of a city, a city, the city clerk, or the animal control officer of a city, respectively.
Any dog license tag which is issued by any city and county or city constitutes compliance with this division if it is issued pursuant to an ordinance which does all of the following:
Substantially complies with this division.
Provides for the wearing of the license tag upon the collar of the dog.
Provides for the keeping of a record which shall establish the identity of the person that owns or harbors the dog.
Except as otherwise provided in subdivision (b), no public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall sell or give away to a new owner any dog that has not been spayed or neutered.
For the purposes of this section a “rescue group” is a for-profit or not-for-profit entity, or a collaboration of individuals with at least one of its purposes being the sale or placement of dogs that have been removed from a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, or humane shelter or that have been previously owned by any person other than the original breeder of that dog.
If a veterinarian licensed to practice veterinary medicine in this state certifies that a dog is too sick or injured to be spayed or neutered, or that it would otherwise be detrimental to the health of the dog to be spayed or neutered, the adopter or purchaser shall pay the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group a deposit of not less than forty dollars ($40), and not more than seventy-five dollars ($75).
The entity shall establish the amount of the deposit at the level it determines is necessary to encourage the spaying or neutering of dogs.
The deposit shall be temporary, and shall only be retained until the dog is healthy enough to be spayed or neutered, as certified by a veterinarian licensed to practice veterinary medicine in this state.
The dog shall be spayed or neutered within 14 business days of that certification.
The adopter or purchaser shall obtain written proof of spaying or neutering from the veterinarian performing the operation.
If the adopter or purchaser presents proof of spaying or neutering to the entity from which the dog was obtained within 30 business days of obtaining the proof, the adopter or purchaser shall receive a full refund of the deposit.
Public animal control agencies or shelters, society for the prevention of cruelty to animals shelters, humane society shelters, and rescue groups may enter into cooperative agreements with each other and with veterinarians in lieu of requiring spaying and neutering deposits to carry out this section.
Any funds from unclaimed deposits made pursuant to this section, as it read on January 1, 1999, and any funds from deposits that are unclaimed after January 1, 2000, may be expended only for programs to spay or neuter dogs and cats, including agreements with a society for the prevention of cruelty to animals or a humane society or licensed veterinarian to operate a program to spay or neuter dogs and cats.
This section only applies to a county that has a population exceeding 100,000 persons as of January 1, 2000, and to cities within that county.
For purposes of this section:
“Animal shelter” means a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group.
“Rescue group” means a for-profit or not-for-profit entity or a collaboration of individuals that removes dogs from a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, or humane shelter, or rehomes a dog that has been previously owned by any person other than the original breeder of that dog.
If an animal shelter or rescue group knows, to the best of the knowledge of the shelter or rescue group, that a dog, at the age of four months or older, bit a person and broke that person’s skin, thus requiring a state-mandated bite quarantine, the animal shelter or rescue group shall, before selling, giving away, or otherwise releasing the dog, do both of the following:
Disclose in writing to the person to whom the dog is sold, given away, or transferred, the dog’s known bite history and the circumstances related to the bite.
Obtain a signed acknowledgment from the person to whom the dog is sold, given away, or transferred that the person has been provided information about the dog as required by this section. The animal shelter or rescue group shall provide the person with a copy of the signed acknowledgment and retain the original copy in its files.
These documentation and disclosure requirements are for the purpose of public safety and the appropriate placement of dogs. A documented bite history does not necessarily preclude a dog from being available for adoption, release, or transfer, notwithstanding any other law or local ordinance related to biting dogs.
Notwithstanding Sections 31401 and 31402, any violation of this section shall be punished by a civil fine not to exceed five hundred dollars ($500), imposed by the city or county in which the animal shelter or rescue group is located. If the person who violates this section is a society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group, the proceeds of the civil fine shall be paid to the local public animal control agency or shelter. If a public animal control agency or shelter violates this section, the proceeds of the civil fine shall be deposited into the treasury of the city or county in which the public animal control agency or shelter is located.
For purposes of this division, each member of a litter of puppies, weaned or unweaned, shall be treated as an individual animal.
A public animal shelter shall not charge an adoption fee for a dog if the person adopting the dog presents to the public animal shelter a current and valid driver’s license or identification card with the word “VETERAN” printed on its face pursuant to Section 12811 of the Vehicle Code.
A public animal shelter may limit the number of dogs adopted from that public animal shelter pursuant to this section to one dog each six-month period.
CHAPTER 1.5. Special Provisions Applicable to Counties With a Population of Less Than 100,000 Persons [30520. - 30526.]
This chapter only applies to a county that has a population of less than 100,000 persons as of January 1, 2000, and to cities within that county. A county whose population exceeds 100,000 persons in a year subsequent to January 1, 2000, shall be subject to Chapter 1 (commencing with Section 30501) commencing on January 1 of the year immediately following the year in which the population of that county exceeds 100,000 persons.
Except as otherwise provided in this chapter, no public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall sell or give away any dog that has not been spayed or neutered.
A public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group may not transfer to a new owner a dog that has not been spayed or neutered, except as provided in subdivision (d).
A public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group may transfer to a new owner a dog that has not been spayed or neutered only if the animal shelter does both of the following:
Requires a written agreement, executed by the recipient, acknowledging the dog is not spayed or neutered and the recipient agrees in writing to be responsible for ensuring the dog will be spayed or neutered within 30 business days after the agreement is signed.
Receives from the recipient a sterilization deposit of not less than forty dollars ($40) and not more than seventy-five dollars ($75), the terms of which are part of the written agreement executed by the recipient under this section.
Public animal control agencies or shelters, society for the prevention of cruelty to animals shelters, humane society shelters, and rescue groups may enter into cooperative agreements with each other and with veterinarians in lieu of requiring spaying and neutering deposits to carry out this section.
A spaying or neutering deposit may be either of the following:
A portion of the adoption fee or other fees rendered in acquiring the dog, which will enable the adopter to take the dog for spaying or neutering to a veterinarian with whom the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group has an agreement that provides that the veterinarian will bill the shelter directly for the sterilization.
A deposit that is both of the following:
Refundable to the recipient if proof of spaying or neutering of the dog is presented to the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group not more than 30 business days after the date the dog is spayed or neutered.
Forfeited to the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group if proof of spaying or neutering is not presented to the animal shelter within 30 business days.
A spaying or neutering deposit shall be in the amount determined by the shelter, but shall not be less than forty dollars ($40) and shall not exceed seventy-five dollars ($75).
All spaying or neutering deposits forfeited or unclaimed under this section shall be retained by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group and shall be used by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group only for the following purposes:
A program to spay or neuter dogs and cats.
A public education program to reduce and prevent overpopulation of dogs and cats, and the related costs to local government.
A followup program to ensure that dogs and cats transferred by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group are spayed or neutered in accordance with the agreement executed under subdivision (d) of Section 30520.
Any additional costs incurred by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group in the administration of the requirements of this chapter.
If a recipient fails to comply with the spaying or neutering agreement within 30 business days after the agreement is signed, the recipient shall forfeit the sterilization deposit and is subject to a fine pursuant to Section 30523.
An animal control officer, humane officer, police officer, peace officer, or any agency authorized to enforce the Penal Code may write citations with a civil penalty stated in an amount corresponding to the violation as provided in Section 30523. The fines shall be paid to the local municipality or public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane shelter, or rescue group. Any funds collected under this section shall be expended for the purpose of humane education, programs for low-cost spaying and neutering of dogs and cats, and any additional costs incurred by the animal shelter in the administration of the requirements of this chapter.
If the owner, at any time subsequent to 30 business days after the spaying or neutering agreement was signed, provides proof of spaying or neutering, the deposit shall be forfeited, but any fine levied but not yet paid, shall be waived.
A public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group may extend the date by which spaying or neutering is to be completed at its discretion for good cause shown. Any extension shall be in writing.
If a veterinarian licensed to practice veterinary medicine in this state certifies that a dog is too sick or injured to be spayed or neutered, or that it would otherwise be detrimental to the health of the dog to be spayed or neutered, the adopter or purchaser shall pay the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group a deposit of not less than forty dollars ($40), and not more than seventy-five dollars ($75). The entity shall establish the amount of the deposit at the level it determines is necessary to encourage the spaying or neutering of dogs. The deposit shall be temporary, and shall be retained only until the dog is healthy enough to be spayed or neutered as certified by a veterinarian licensed to practice veterinary medicine in this state. The dog shall be spayed or neutered within 14 business days of that certification. The adopter or purchaser shall obtain written proof of spaying or neutering from the veterinarian performing the operation. If the adopter or purchaser presents proof of spaying or neutering to the entity from which the dog was obtained within 30 business days, the adopter or purchaser shall receive a full refund of the deposit.
If an adopted dog dies within the spaying or neutering period provided for in the written agreement pursuant to Section 30520, subdivision (c) shall not apply to the dog. In that case, the recipient may receive a reimbursement of the sterilization deposit by submitting to the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group within the sterilization period a signed letter from a veterinarian licensed to practice medicine in this state stating that the animal has died. The letter shall include a description of the dog.
A person who commits any violation of subdivision (b) is subject to a civil penalty of not less than fifty dollars ($50) on a first violation of subdivision (b), and a civil penalty of not less than one hundred dollars ($100) on any second or subsequent violation of subdivision (b).
An action for a penalty proposed under this section may be commenced by the administrator of the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group from which the recipient obtained the animal that is the subject of the violation in a court of competent jurisdiction.
A person is subject to the civil penalties pursuant to subdivision (a) if that person does any of the following:
Falsifies any proof of spaying or neutering submitted for the purpose of compliance with this chapter.
Provides to a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group or a licensed veterinarian inaccurate information regarding ownership of any dog required to be submitted for spaying or neutering under this chapter.
Submits to a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group false information regarding sterilization fees or fee schedules.
Issues a check for insufficient funds for any spaying or neutering deposit required under this chapter.
All penalties collected under this section shall be retained by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group imposing the penalties, to be used solely for purposes provided for under subdivision (c) of Section 30521.
Local ordinances concerning the adoption or placement procedures of any public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall be at least as restrictive as this chapter.
A public animal shelter shall not charge an adoption fee for a dog if the person adopting the dog presents to the public animal shelter a current and valid driver’s license or identification card with the word “VETERAN” printed on its face pursuant to Section 12811 of the Vehicle Code.
A public animal shelter may limit the number of dogs adopted from that public animal shelter pursuant to this section to one dog each six-month period.
Whenever a dog license tag is issued pursuant to this division, the tag shall be issued for one-half or less of the fee required for a dog, if a certificate is presented from a licensed veterinarian that the dog has been spayed or neutered.
For purposes of this section:
“Animal shelter” means a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group.
“Rescue group” means a for-profit or not-for-profit entity or a collaboration of individuals that removes dogs from a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, or humane shelter, or rehomes a dog that has been previously owned by any person other than the original breeder of that dog.
If an animal shelter or rescue group knows, to the best of the knowledge of the shelter or rescue group, that a dog, at the age of four months or older, bit a person and broke that person’s skin, thus requiring a state-mandated bite quarantine, the animal shelter or rescue group shall, before selling, giving away, or otherwise releasing the dog, do both of the following:
Disclose in writing to the person to whom the dog is sold, given away, or transferred, the dog’s known bite history and the circumstances related to the bite.
Obtain a signed acknowledgment from the person to whom the dog is sold, given away, or transferred that the person has been provided information about the dog as required by this section. The animal shelter or rescue group shall provide the person with a copy of the signed acknowledgment and retain the original copy in its files.
These documentation and disclosure requirements are for the purpose of public safety and the appropriate placement of dogs. A documented bite history does not necessarily preclude a dog from being available for adoption, release, or transfer, notwithstanding any other law or local ordinance related to biting dogs.
Notwithstanding Sections 31401 and 31402, any violation of this section shall be punished by a civil fine not to exceed five hundred dollars ($500), imposed by the city or county in which the animal shelter or rescue group is located. If the person who violates this section is a society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group, the proceeds of the civil fine shall be paid to the local public animal control agency or shelter. If a public animal control agency or shelter violates this section, the proceeds of the civil fine shall be deposited into the treasury of the city or county in which the public animal control agency or shelter is located.
CHAPTER 2. Disposition of Funds [30651. - 30656.]
As used in this chapter, “livestock” includes domestic fowls and rabbits.
All fees for the issuance of dog license tags and all fines collected pursuant to this division shall be paid into the county, city, or city and county treasury, as the case may be, and shall be used as follows:
First, to pay fees for the issuance of dog license tags.
Second, to pay fees, salaries, costs, expenses, or any or all of them for the enforcement of this division and all ordinances that are made pursuant to this division.
Third, to pay damages to owners of livestock that are killed by dogs.
Fourth, to pay costs of any hospitalization or emergency care of animals pursuant to Section 597.1 of the Penal Code.
Each such claim for damages is governed by Part 3 (commencing with Section 900) and Part 4 (commencing with Section 940), Division 3.6, Title 1 of the Government Code, except that the claim, as presented, shall be accompanied by the affidavits of two disinterested witnesses executed within four days after the finding of the carcass of the animal.
The affidavits shall fix the value of the livestock and establish the fact beyond reasonable doubt that the animal was killed by a dog.
If a claim is allowed, it shall be paid from the fund which is provided for in this chapter in the same manner as other claims against the county are paid.
The claim for damages to livestock, in addition to being governed by Part 3 (commencing with Section 900) and Part 4 (commencing with Section 940) of Division 3.6 of Title 1 of the Government Code, shall be accompanied by a statement by the local animal control officer relating to the probable cause of death of the animal and by proof submitted by the owner of the livestock to establish the value of the animal.
The statement submitted by the local animal control officer shall set forth the facts upon which the officer’s statement is based and shall indicate whether, to the best of the officer’s knowledge, the animal was killed by a dog.
CHAPTER 3. Dog Tags [30801. - 30807.]
A board of supervisors may provide for the issuance of serially numbered metallic dog licenses pursuant to this section. The dog licenses shall be stamped with the name of the county and the year of issue.
The board of supervisors or animal control department may authorize veterinarians to issue the licenses to owners of dogs who apply.
The licenses shall be issued for a period of not to exceed two years.
In addition to the authority provided in subdivisions (a), (b), and (c), a license may be issued, as provided by this section, by a board of supervisors for a period not to exceed three years for dogs that have attained the age of 12 months, or older, and who have been vaccinated against rabies. The person to whom the license is to be issued pursuant to this subdivision may choose a license period as established by the board of supervisors of up to one, two, or three years. However, when issuing a license pursuant to this subdivision, the license period shall not extend beyond the remaining period of validity for the current rabies vaccination.
Each application for a dog license tag shall state the age, sex, color, and breed of the dog for which the license is desired and the address of the owner.
The animal control department shall endorse upon the application for a dog license tag the number of the license tag issued.
All applications that have been endorsed shall be kept on file in the office of the animal control department open to public inspection.
The fee for the issuance of the dog license tag is fifty cents ($0.50). The board of supervisors may, however, increase the fee.
Whenever dog license tags are issued pursuant to this division, any such tag shall be issued for one-half or less of the fee required for a dog, if a certificate is presented from a licensed veterinarian that the dog has been spayed or neutered.
The owner of a nonspayed or unneutered dog that is impounded once by a city or county animal control agency or shelter, society for the prevention of cruelty to animals, or humane society, shall be fined thirty-five dollars ($35) on the first occurrence, fifty dollars ($50) on the second occurrence, and one hundred dollars ($100) for the third or subsequent occurrence. These fines are for unneutered impounded animals only, and are not in lieu of any fines or impound fees imposed by any individual city, county, public animal control agency or shelter, society for the prevention of cruelty to animals shelter, or humane society shelter.
An animal control officer, humane officer, police officer, peace officer, or any agency authorized to enforce the Penal Code may write citations with a civil penalty stated in an amount corresponding to the violation as provided in subdivision (a). The fines shall be paid to the local municipality or public animal control agency or shelter, society for the prevention of cruelty to animals shelter, or humane society shelter. Any funds collected under this section shall be expended for the purpose of humane education, programs for low cost spaying and neutering of dogs, and any additional costs incurred by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group in the administration of the requirements of this division.
This section applies to each county and cities within each county, regardless of population.
No city or county, society for the prevention of cruelty to animals, or humane society is subject to any civil action by the owner of a dog that is spayed or neutered in accordance with this section.
The board of supervisors shall fix the compensation of the animal control department for issuing dog license tags.
Any licensed kennel may be exempted pursuant to regulation or ordinance from any requirement to obtain a license tag for each dog within the kennel.
CHAPTER 3.5. Guide Dogs, Signal Dogs,and Service Dogs [30850. - 30854.]
The animal control department shall endorse upon the application for an assistance dog identification tag the number of the identification tag issued. As used in this chapter, “assistance dogs” are dogs specially trained as guide dogs, signal dogs, or service dogs. All applications that have been endorsed shall be kept on file in the office of the animal control department and shall be open to public inspection.
Whenever a person applies for an assistance dog identification tag, the person shall sign an affidavit stating as follows:
“By affixing my signature to this affidavit, I hereby declare I fully understand that Section 365.7 of the Penal Code prohibits any person to knowingly and fraudulently represent himself or herself, through verbal or written notice, to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide dog, signal dog, or service dog, as defined in subdivisions (d), (e), and (f), respectively, of Section 365.5 of the Penal Code and paragraph (6) of subdivision (b) of Section 54.1 of the Civil Code, and that a violation of Section 365.7 of the Penal Code is a misdemeanor, punishable by imprisonment in a county jail not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.”
Upon the death or retirement of an assistance dog, the owner or person in possession of the assistance dog identification tag shall immediately return the tag to the animal control department that issued the tag.
The owners of assistance dogs shall comply with all state and local ordinances regarding health and licensure requirements for dogs.
The tag identifying a dog as an assistance dog shall be used only by a person with a disability or a trainer of an assistance dog and shall be of such uniform statewide shape, size, and color as to be easily recognized.
The Department of Food and Agriculture, in consultation with the State Department of Health Services, shall specify the shape, size, and color of the tags. This subdivision shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
Nothing in this chapter shall be construed to limit the access of any person in violation of the Americans with Disabilities Act of 1990 (Public Law 101-336).
The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid or to be in conflict with the Americans with Disabilities Act of 1990 (Public Law 101-336), that invalidity or conflict shall not affect other provisions or applications that can be given effect without the invalid or conflicting provision or application.
CHAPTER 4. Regulation [30951. - 30956.]
It is unlawful for any person to own, harbor, or keep any dog over the age of four months, or to permit such a dog which is owned, harbored, or controlled by him to run at large, unless the dog has attached to its neck or leg a substantial collar on which one of the following is fastened:
A metallic tag which gives the name and post office address of the owner.
A metal license tag which is issued by the authority of a county, city and county, or any municipal corporation for the purpose of identifying the dog and designating the owner.
It is unlawful for any person to attach a license tag to the collar of any dog except the dog which is described in the application for such license tag.
Except as otherwise provided in this division, it is unlawful for any person to kill, injure, or impound any dog, if the owner of the dog has complied with the provisions of this division.
It is unlawful for any person to permit any female dog which is owned, harbored, or controlled by him, to run at large at any time during the period when the dog is in heat or breeding condition.
It is unlawful for any person to permit any dog which is owned, harbored, or controlled by him to run at large on any farm on which livestock or domestic fowls are kept, without the consent of the owner of the farm, except for herding livestock, hunting or sporting purposes, or any competitive trials when the dog is within reasonable control or call of his owner or the agent of his owner.
In an action for violation of Section 30955, the court may stay imposition of a sentence and order the defendant to compensate the owner of the farm in an amount equal to the cost of the damage done by the defendant’s dog. If the defendant refuses to compensate the owner under this section, the court shall impose the appropriate sentence.
Acceptance by the owner of compensation under this section precludes that person from bringing an action under any other law for damages caused by the defendant’s dog.
CHAPTER 4.5. Importation of Dogs [31000. - 31002.]
A person selling, transporting, or importing a dog into the state for the purpose of resale or change of ownership shall obtain, and submit to the department and the buyer, a health certificate for the dog that has been completed by a licensed veterinarian and is dated no more than 10 days before the date on which the dog is brought into the state.
The health certificate shall include, but not be limited to, all of the following information:
The date of the examination.
A statement that the examination revealed no clinical evidence of infectious or communicable disease, including external parasites and fungi, and that, to the best of the licensed veterinarian’s knowledge, the dog has not recently been exposed to such infectious or communicable disease.
Any vaccinations, treatments, or tests, and the results of such administered to the dog.
A statement that the dog has been properly immunized against rabies by a vaccine approved by the United States Department of Agriculture within 12 months before the date of importation into the State of California.
This immunization requirement shall not apply if the dog is under three months old or if a licensed veterinarian certifies in writing that because of old age, or another reason, the life of the dog would be endangered by the administration of the rabies vaccine.
The number of dogs in the shipment.
A description of each dog in the shipment, including breed, age, and sex.
If microchipped, the microchip number for each dog in the shipment.
The physical address for both the origin and destination of the dog in the shipment. A post office box, airport, parking lot, or other public or nonfixed location shall not be used as the physical address. The physical address shall correspond to a verifiable, permanent residence or business location where the animal resides or is housed.
The signature, printed name, physical address, and state license number of the licensed veterinarian who examined the dogs in the shipment.
The full name, physical address, email address, and telephone number of the consignor and the full name, physical address, email address, and telephone number of the buyer.
The United States Department of Agriculture license number associated with the breeder of the dog, if applicable.
Completion of a United States Department of Agriculture Animal and Plant Health Inspection Service Form 7001, known as the United States Interstate and International Certificate of Health Examination for Small Animals, may be used to satisfy the requirements of subdivision (a) if the minimum requirements described in subdivision (b) are satisfied by the form. A different form of health certificate acceptable to the department may also be used to satisfy the requirements of subdivision (a) if the minimum requirements described in subdivision (b) are satisfied by the form.
The person selling, transporting, or importing the dog into this state for the purpose of resale or change of ownership shall submit the health certificate to the department and the buyer via an electronic transmission.
For purposes of this section, “consignor” means a person, business, or organization that ships or sends goods to another party for sale or storage, retaining ownership until the goods are paid for.
A health certificate received by the department pursuant to this chapter is a public record subject to disclosure, without redaction, under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
The department shall make the health certificates it receives pursuant to this chapter available upon request and without requiring a person to submit a request under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
The department shall retain a health certificate for five years.
CHAPTER 5. Killing and Seizure [31101. - 31153.]
ARTICLE 1. Generally [31101. - 31109.]
Any dog which is found running at large without the identification tag or dog license tag which is required pursuant to Section 30951 may be seized and impounded by any peace officer.
The dog is found in the act of killing, wounding, or persistently pursuing or worrying livestock or poultry on land or premises which are not owned or possessed by the owner of the dog.
The person has such proof as conclusively shows that the dog has been recently engaged in killing or wounding livestock or poultry on land or premises which are not owned or possessed by the dog’s owner.
No action, civil or criminal, shall be maintained for the killing of any such dog.
Except in an area in which the provisions of Article 2 (commencing with Section 31151) of this chapter apply or as otherwise provided in Section 31104, any dog entering any enclosed or unenclosed property upon which livestock or poultry are confined may be seized or killed by the owner or tenant of the property or by any employee of the owner or tenant. No action, civil or criminal, shall be maintained against the owner, tenant, or employee for the seizure or killing of any such dog.
The provisions of Sections 31102 and 31103 shall not apply to any dog which is inside the corporate limits of any city, or city and county, or to any dog which is under the reasonable control of his owner or keeper, unless the dog is actually caught in the act or worrying, wounding, chasing, or killing any livestock or poultry.
The board of supervisors shall provide for both of the following:
The taking up and impounding of all dogs which are found running at large in violation of any provision of this division.
The killing in some humane manner or other disposition of any dog which is impounded.
The board of supervisors may appoint proper persons to take up, impound, and kill dogs pursuant to this division or it may enter into a contract with any humane society or other organization or association which will do both of the following:
Undertake to carry out the provisions of this division regarding the taking up, impounding, and killing of dogs.
Give a proper bond in whatever amount may be fixed by the board of supervisors for the faithful performance of the contract.
No dog which is impounded pursuant to this division shall be killed or otherwise disposed of without notice to the owner, if he is known.
The required holding period for a stray dog impounded pursuant to this division shall be six business days, not including the day of impoundment, except as follows:
If the public or private shelter has made the dog available for owner redemption on one weekday evening until at least 7 p.m. or one weekend day, the holding period shall be four business days, not including the day of impoundment.
If the public or private shelter has fewer than three full-time employees or is not open during all regular weekday business hours, and if it has established a procedure to enable owners to reclaim their dogs by appointment at a mutually agreeable time when the public or private shelter would otherwise be closed, the holding period shall be four business days, not including the day of impoundment.
Except as provided in Section 17006, stray dogs shall be held for owner redemption during the first three days of the holding period, not including the day of impoundment, and shall be available for owner redemption or adoption for the remainder of the holding period.
Except as provided in Section 17006, a stray dog that is impounded pursuant to this division shall, before the euthanasia of that animal, be released to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue, or adoption organization if requested by the organization before the scheduled euthanasia of that animal. The public or private shelter may enter into cooperative agreements with an animal rescue or adoption organization. In addition to a required spay or neuter deposit, the public or private shelter, at its discretion, may assess a fee, not to exceed the standard adoption fee, for animals adopted or released.
A puppy under eight weeks of age that is reasonably believed to be unowned and is impounded in a public or private shelter may, before the euthanasia of that animal, be made immediately available for release to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue, or adoption organization if requested by the organization.
During the holding period required by this section and before the adoption or euthanasia of a dog impounded pursuant to this division, a public or private shelter shall scan the dog for a microchip that identifies the owner of that dog and shall make reasonable efforts to contact the owner and notify the owner that the owner’s dog is impounded and is available for redemption.
As used in this division, a “business day” includes any day that a public or private shelter is open to the public for at least four hours, excluding state holidays.
Except as provided in subdivision (b), a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall not release a dog to an owner seeking to reclaim it, or adopt out, sell, or give away a dog to a new owner, unless either of the following conditions is met:
The dog is microchipped with current information on the owner reclaiming the dog or new owner receiving the dog, as applicable, and the owner or new owner is registered with the microchip registry company as the primary owner of the dog. The public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall not be registered with a microchip registry company as the primary owner of the dog. Upon adoption, sale, giving away, or transfer of ownership, the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall provide information on the transference of ownership, including microchip company information, the microchip number and any other relevant identifiers, and any other information needed for an owner or new owner to register themselves as the microchip’s primary contact, as applicable.
If the agency, shelter, or group does not have microchipping capability on location, the agency, shelter, or group first obtains from the owner reclaiming the dog or new owner receiving the dog an agreement that requires the owner or new owner to present to the agency, shelter, or group, within the next 30 days, proof that the dog is microchipped as described in subparagraph (A).
If the agency, shelter, or group does not have microchipping capability on location, the agency, shelter, or group shall make a good faith effort to maintain a list of local and regional free or discounted regional microchipping services and provide that information to the owner or new owner.
An agency, shelter, or group may require proof that the dog is microchipped pursuant to paragraph (1) before releasing, adopting out, selling, or giving away the dog. If a dog has a preexisting microchip or there is reasonable proof of ownership, the agency, shelter, or group shall document and retain a record of all efforts made to contact the microchip’s primary registrant or other demonstrated owner for at least two years.
For purposes of subparagraph (B) of paragraph (1), an owner reclaiming a dog or new owner receiving a dog is not required to register the dog’s microchip number with a microchip registry company that will use, without the owner’s or new owner’s consent, the personal information of the owner or new owner for purposes other than to reunite the owner or new owner with the dog.
Notwithstanding subdivision (a), this section does not require a dog to be microchipped if a licensed veterinarian certifies in writing that the dog is medically unfit for the microchipping procedure because the dog has a physical condition that would be substantially aggravated by the procedure.
Notwithstanding subdivision (a), this section does not require a dog to be microchipped if the agency, shelter, or group receives a signed form from the owner reclaiming the dog or new owner receiving the dog that states that the cost of microchipping would impose an economic hardship for the owner or new owner.
An agency, shelter, or group that does not have microchipping capability on location is not subject to the civil penalty described in this subdivision upon obtaining the agreement described in subparagraph (B) of paragraph (1) of subdivision (a).
This section does not apply to a dog that is temporarily housed under an emergency evacuation order.
Upon relinquishment of a dog to a public or private shelter, the owner of that dog shall present sufficient identification to establish his or her ownership of the dog and shall sign a statement that he or she is the lawful owner of the dog.
Any person who provides false information pursuant to this subdivision about his or her ownership of the dog shall be liable to the true owner of the dog in the amount of one thousand dollars ($1,000).
Upon relinquishment, the dog may be made available for immediate euthanasia if it has a history of vicious or dangerous behavior documented by the agency charged with enforcing state and local animal laws.
Any dog which is found straying on any farm where livestock are kept, which has attached to its collar the identification tag or dog license tag prescribed by Section 30951, may be taken up, impounded, and detained in the same manner as described in this division. The person taking up the dog may recover from the owner, in any court having jurisdiction, the fees fixed by the board of supervisors for taking up and keeping unlicensed and unidentified dogs, together with costs.
ARTICLE 2. Optional Provisions [31151. - 31153.]
Any person may kill any dog in any area of a county in which the provisions of this article apply in any of the following cases:
The dog is found in the act of killing, wounding, or persistently pursuing livestock or poultry on land or premises not owned or possessed by the owner of the dog.
The dog has no readily visible identification tag or license tag prescribed by Section 30951 and is worrying livestock or poultry on land or premises not owned or possessed by the owner of the dog. If the dog has on him any readily visible identification tag or license tag prescribed by Section 30951, and the dog is found in the act of worrying livestock or poultry on land or premises not owned or possessed by the owner of the dog, the dog may only be killed if the dog has, and the owner has been notified that the dog has, previously so worried livestock or poultry.
The person has such proof as conclusively shows that the dog has been recently engaged in killing or wounding livestock or poultry on land or premises not owned or possessed by the dog’s owner.
No action, civil or criminal, shall be maintained for killing a dog as authorized by this section.
Any dog entering any enclosed or unenclosed property upon which livestock or poultry are confined may be seized by the owner or tenant of the property or any employee of the owner or tenant. No action, civil or criminal, shall be maintained against the owner, tenant, or employee for the seizure of any such dog.
CHAPTER 6. Fees for Impounding [31251. - 31255.]
The board of supervisors of each county shall fix the fee for impounding any dog and the amount which is to be paid for keeping the dog.
If the impounding of a dog is done by an appointee of the board of supervisors or by a humane society or other organization or association which has entered into a contract for impounding dogs, the fees for taking up, impounding, and keeping the dog shall be a charge upon the county treasury, to be paid as other claims against the county are paid.
If a dog which has been impounded is claimed by the owner, the fee for impounding and keeping the dog, as fixed by the board of supervisors, shall be paid by the owner to the person, organization, or association which has custody of the dog, to be retained by him or them. No charge for fees pertaining to the dog shall be paid by the board of supervisors.
The refusal or failure of the owner of any such dog to pay the fee and charges after due notification shall be held to be an abandonment of the dog by the owner.
An animal control officer of any county, if so authorized by the board of supervisors of the county, or an animal control officer of any city, if so authorized by the governing body of the city, may accept a credit card as a method of payment for any fee or penalty provided by this division, for any license, fee, or fine, or for any other obligation owed to the officer.
Notwithstanding Title 1.3 (commencing with Section 1747) of Part 4 of Division 3 of the Civil Code, a surcharge may be imposed to cover the rate of discount that the credit card issuer debits the local agency on acceptance of the sales draft.
CHAPTER 7. Violations [31401. - 31402.]
Except as provided in Section 31402, violation of any provision of this division is an infraction punishable by a fine of not more than fifty dollars ($50) for a first offense, and by a fine of not more than one hundred dollars ($100) for a second or subsequent offense.
Violation of any provision of this division that results in death or serious injury to livestock or poultry is a misdemeanor punishable by a fine of not more than five hundred dollars ($500) or by imprisonment in the county jail for not more than six months or by both the fine and imprisonment.
As used in this section, “serious injury” means injury of a degree of severity that the injured animal must be destroyed or injury that results in the fair market value of the animal being reduced to a level at which it may not be profitably sold.
CHAPTER 8. Civil Liability [31501. - 31508.]
The owner of any livestock or poultry which is injured or killed by any dog may recover as liquidated damages from the owner of the dog twice the actual value of the animals killed or twice the value of the damages sustained by reason of the injuries, as the case may be.
If two or more dogs kept by two or more owners or keepers injure or kill any livestock or poultry at the same time, the owners or keepers of the dogs are jointly and severally liable for the damage.
If any person sustains any loss or damage to any livestock or poultry which is caused by a dog, or if any livestock of any person is necessarily destroyed because of having been bitten by a dog, the person may file a complaint in the superior court of the county within which the damage occurred. A proceeding under this section is a limited civil case.
The complaint shall satisfy all of the following requirements:
Be in writing.
Signed by the person that makes it.
State when, where, what, and how much damage was done.
State, if known, the name of the person that owns the dog or was in charge of it when the loss or damage was sustained.
If the person that owns the dog or was in charge of it when the damage or loss was sustained appears from the complaint, the judge shall forthwith issue a summons against such person commanding him to appear before the judge and show cause why the dog should not be killed.
The summons shall be made returnable not less than two nor more than six days from the date of issue and shall be served at least two days before the time of appearance ordered.
The service of the summons may be made by any person over the age of 18 years or by registered mail to the last known address of the owner or person in charge. Any expense connected with the summons shall be borne by the owner of the livestock or poultry which was injured or the party that makes the complaint.
Upon the return day fixed in the summons, the judge shall proceed to determine whether the loss or damage to the livestock was caused by the dog. If he finds that it was caused by the dog, he shall notify the person that owns the dog or was in charge of it when the loss or damage was sustained to kill the dog. Failure of such person to kill the dog as directed renders the owner subject to the penalties which are prescribed in this division.
CHAPTER 9. Potentially Dangerous and Vicious Dogs [31601. - 31683.]
ARTICLE 1. Findings, Definitions, and General Provisions [31601. - 31609.]
The Legislature finds and declares all of the following:
Potentially dangerous and vicious dogs have become a serious and widespread threat to the safety and welfare of citizens of this state. In recent years, they have assaulted without provocation and seriously injured numerous individuals, particularly children, and have killed numerous dogs. Many of these attacks have occurred in public places.
The number and severity of these attacks are attributable to the failure of owners to register, confine, and properly control vicious and potentially dangerous dogs.
The necessity for the regulation and control of vicious and potentially dangerous dogs is a statewide problem, requiring statewide regulation, and existing laws are inadequate to deal with the threat to public health and safety posed by vicious and potentially dangerous dogs.
“Potentially dangerous dog” means any of the following:
Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner or keeper of the dog.
Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section 31604.
Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog.
“Vicious dog” means either of the following:
Any dog that, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being.
“Severe injury” means any physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery.
“Enclosure” means a fence or structure suitable to prevent the entry of young children, and which is suitable to confine a vicious dog in conjunction with other measures which may be taken by the owner or keeper of the dog. The enclosure shall be designed in order to prevent the animal from escaping. The animal shall be housed pursuant to Section 597t of the Penal Code.
“Animal control department” means the county or city animal control department. If the city or county does not have an animal control department, it means whatever entity performs animal control functions.
“Impounded” means taken into the custody of the public animal shelter or animal control department or provider of animal control services to the city or county where the potentially dangerous or vicious dog is found.
“County” includes any city and county.
This chapter does not apply to licensed kennels, humane society shelters, animal control facilities, or veterinarians.
This chapter does not apply to dogs while utilized by any police department or any law enforcement officer in the performance of police work.
ARTICLE 2. Judicial Process [31621. - 31626.]
If an animal control officer or a law enforcement officer has investigated and determined that there exists probable cause to believe that a dog is potentially dangerous or vicious, the chief officer of the public animal shelter or animal control department, or the chief officer’s immediate supervisor, or the head of the local law enforcement agency, or the agency head’s designee, shall petition the superior court of the county in which the dog is owned or kept for a hearing for the purpose of determining whether or not the dog should be declared potentially dangerous or vicious. A proceeding under this section is a limited civil case. A city or county may establish an administrative hearing procedure to hear and dispose of petitions filed pursuant to this chapter. Whenever possible, any complaint received from a member of the public which serves as the evidentiary basis for the animal control officer or law enforcement officer to find probable cause shall be sworn to and verified by the complainant and shall be attached to the petition. The chief officer of the public animal shelter or animal control department or head of the local law enforcement agency shall notify the owner or keeper of the dog that a hearing will be held by the superior court or the hearing entity, as the case may be, at which time the owner or keeper of the dog may present evidence as to why the dog should not be declared potentially dangerous or vicious. The owner or keeper of the dog shall be served with notice of the hearing and a copy of the petition, either personally or by first-class mail with return receipt requested. The hearing shall be held promptly within no less than five working days nor more than 10 working days after service of notice upon the owner or keeper of the dog. The hearing shall be open to the public. The court may admit into evidence all relevant evidence, including incident reports and the affidavits of witnesses, limit the scope of discovery, and may shorten the time to produce records or witnesses. A jury shall not be available. The court may find, upon a preponderance of the evidence, that the dog is potentially dangerous or vicious and make other orders authorized by this chapter.
After the hearing conducted pursuant to Section 31621, the owner or keeper of the dog shall be notified in writing of the determination and orders issued, either personally or by first-class mail postage prepaid by the court or hearing entity. If a determination is made that the dog is potentially dangerous or vicious, the owner or keeper of the dog shall comply with Article 3 (commencing with Section 31641) in accordance with a time schedule established by the chief officer of the public animal shelter or animal control department or the head of the local law enforcement agency, but in no case more than 30 days after the date of the determination or 35 days if notice of the determination is mailed to the owner or keeper of the dog. If the petitioner or the owner or keeper of the dog contests the determination, they may, within five days of the receipt of the notice of determination, appeal the decision of the court or hearing entity of original jurisdiction. The fee for filing an appeal, payable to the clerk of the court, is as provided in subdivision (b) of Section 70626 of the Government Code. If the original hearing held pursuant to Section 31621 was before a hearing entity other than a court of the jurisdiction, appeal shall be to the superior court. If the original hearing was held in the superior court, appeal shall be to the superior court before a judge other than the judge who originally heard the petition. The petitioner or the owner or keeper of the dog shall serve personally or by first-class mail, postage prepaid, notice of the appeal upon the other party.
The court hearing the appeal shall conduct a hearing de novo, without a jury, and make its own determination as to potential danger and viciousness and make other orders authorized by this chapter, based upon the evidence presented. The hearing shall be conducted in the same manner and within the time periods set forth in Section 31621 and subdivision (a). The court may admit all relevant evidence, including incident reports and the affidavits of witnesses, limit the scope of discovery, and may shorten the time to produce records or witnesses. The issue shall be decided upon the preponderance of the evidence. If the court rules the dog to be potentially dangerous or vicious, the court may establish a time schedule to ensure compliance with this chapter, but in no case more than 30 days subsequent to the date of the court’s determination or 35 days if the service of the judgment is by first-class mail.
The court or hearing entity of original jurisdiction or the court hearing the appeal may decide all issues for or against the owner or keeper of the dog even if the owner or keeper fails to appear at the hearing.
The determination of the court hearing the appeal shall be final and conclusive upon all parties.
If upon investigation it is determined by the animal control officer or law enforcement officer that probable cause exists to believe the dog in question poses an immediate threat to public safety, then the animal control officer or law enforcement officer may seize and impound the dog pending the hearings to be held pursuant to this article. The owner or keeper of the dog shall be liable to the city or county where the dog is impounded for the costs and expenses of keeping the dog, if the dog is later adjudicated potentially dangerous or vicious.
When a dog has been impounded pursuant to subdivision (a) and it is not contrary to public safety, the chief animal control officer shall permit the animal to be confined at the owner’s expense in a department approved kennel or veterinary facility.
No dog may be declared potentially dangerous or vicious if any injury or damage is sustained by a person who, at the time the injury or damage was sustained, was committing a willful trespass or other tort upon premises occupied by the owner or keeper of the dog, or was teasing, tormenting, abusing, or assaulting the dog, or was committing or attempting to commit a crime. No dog may be declared potentially dangerous or vicious if the dog was protecting or defending a person within the immediate vicinity of the dog from an unjustified attack or assault. No dog may be declared potentially dangerous or vicious if an injury or damage was sustained by a domestic animal which at the time the injury or damage was sustained was teasing, tormenting, abusing, or assaulting the dog.
No dog may be declared potentially dangerous or vicious if the injury or damage to a domestic animal was sustained while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog.
ARTICLE 3. Disposition of Potentially Dangerous or Vicious Dogs [31641. - 31646.]
All potentially dangerous dogs shall be properly licensed and vaccinated. The licensing authority shall include the potentially dangerous designation in the registration records of the dog, either after the owner or keeper of the dog has agreed to the designation or the court or hearing entity has determined the designation applies to the dog. The city or county may charge a potentially dangerous dog fee in addition to the regular licensing fee to provide for the increased costs of maintaining the records of the dog.
A potentially dangerous dog, while on the owner’s property, shall, at all times, be kept indoors, or in a securely fenced yard from which the dog cannot escape, and into which children cannot trespass. A potentially dangerous animal may be off the owner’s premises only if it is restrained by a substantial leash, of appropriate length, and if it is under the control of a responsible adult.
If the dog in question dies, or is sold, transferred, or permanently removed from the city or county where the owner or keeper resides, the owner of a potentially dangerous dog shall notify the animal control department of the changed condition and new location of the dog in writing within two working days.
If there are no additional instances of the behavior described in Section 31602 within a 36-month period from the date of designation as a potentially dangerous dog, the dog shall be removed from the list of potentially dangerous dogs. The dog may, but is not required to be, removed from the list of potentially dangerous dogs prior to the expiration of the 36-month period if the owner or keeper of the dog demonstrates to the animal control department that changes in circumstances or measures taken by the owner or keeper, such as training of the dog, have mitigated the risk to the public safety.
A dog determined to be a vicious dog may be destroyed by the animal control department when it is found, after proceedings conducted under Article 2 (commencing with Section 31621), that the release of the dog would create a significant threat to the public health, safety, and welfare.
If it is determined that a dog found to be vicious shall not be destroyed, the judicial authority shall impose conditions upon the ownership of the dog that protect the public health, safety, and welfare.
Any enclosure that is required pursuant to subdivision (b) shall meet the requirements of Section 31605.
The owner of a dog determined to be a vicious dog may be prohibited by the city or county from owning, possessing, controlling, or having custody of any dog for a period of up to three years, when it is found, after proceedings conducted under Article 2 (commencing with Section 31621), that ownership or possession of a dog by that person would create a significant threat to the public health, safety, and welfare.
ARTICLE 4. Penalties [31662. - 31663.]
Any violation of this chapter involving a potentially dangerous dog shall be punished by a fine not to exceed five hundred dollars ($500). Any violation of this chapter involving a vicious dog shall be punished by a fine not to exceed one thousand dollars ($1,000).
All fines paid pursuant to this article shall be paid to the city or county in which the violation occurred for the purpose of defraying the cost of the implementation of this chapter.
ARTICLE 5. Miscellaneous [31681. - 31683.]
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
The Judicial Council shall prepare all forms necessary to give effect to this chapter, including a summons or citation to be used by law enforcement agencies in the enforcement of this chapter. This chapter does not affect or change the existing civil liability or criminal laws regarding dogs.
Nothing in this chapter shall be construed to prevent a city or county from adopting or enforcing its own program for the control of potentially dangerous or vicious dogs that may incorporate all, part, or none of this chapter, or that may punish a violation of this chapter as a misdemeanor or may impose a more restrictive program to control potentially dangerous or vicious dogs. Except as provided in Section 122331 of the Health and Safety Code, no program regulating any dog shall be specific as to breed.
DIVISION 14.5. REGULATION OF CATS [31751. - 31765.]
CHAPTER 1. Regulation of Cats Generally [31751. - 31754.]
For the purposes of this division, each member of a litter of kittens, weaned or unweaned, shall be treated as an individual animal.
Except as otherwise provided in subdivision (b), no public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall sell or give away to a new owner any cat that has not been spayed or neutered.
For the purposes of this section, a “rescue group” is a for-profit or not-for-profit entity, or a collaboration of individuals with at least one of its purposes being the sale or placement of cats that have been removed from a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, or humane shelter or that have been previously owned by any person other than the original breeder of that cat.
If a veterinarian licensed to practice veterinary medicine in this state certifies that a cat is too sick or injured to be spayed or neutered, or that it would otherwise be detrimental to the health of the cat to be spayed or neutered, the adopter or purchaser shall pay the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group a deposit of not less than forty dollars ($40), and not more than seventy-five dollars ($75).
The entity shall establish the amount of the deposit at the level it determines is necessary to encourage the spaying or neutering of cats.
The deposit shall be temporary, and shall only be retained until the cat is healthy enough to be spayed or neutered, as certified by a veterinarian licensed to practice veterinary medicine in this state.
The cat shall be spayed or neutered within 14 business days of that certification.
The adopter or purchaser shall obtain written proof of spaying or neutering from the veterinarian performing the operation.
If the adopter or purchaser presents proof of spaying or neutering to the entity from which the cat was obtained within 30 business days of obtaining the proof, the adopter or purchaser shall receive a full refund of the deposit.
Public animal control agencies or shelters, society for the prevention of cruelty to animals shelters, humane society shelters, and rescue groups may enter into cooperative agreements with each other and with veterinarians in lieu of requiring spaying and neutering deposits to carry out this section.
Any funds from unclaimed deposits made pursuant to this section, as it read on January 1, 1999, and any funds from deposits unclaimed after January 1, 2000, may be expended only for programs to spay or neuter cats and dogs, including agreements with a society for the prevention of cruelty to animals or a humane society or licensed veterinarian, to operate a program to spay or neuter cats and dogs.
This section only applies to a county that has a population exceeding 100,000 persons as of January 1, 2000, and to cities within that county.
A public animal shelter shall not charge an adoption fee for a cat if the person adopting the cat presents to the public animal shelter a current and valid driver’s license or identification card with the word “VETERAN” printed on its face pursuant to Section 12811 of the Vehicle Code.
A public animal shelter may limit the number of cats adopted from that public animal shelter pursuant to this section to one cat each six-month period.
Whenever a city or county requires cat license tags, any such tag shall be issued for one-half or less of the fee required for a cat, if a certificate is presented from a licensed veterinarian that the cat has been spayed or neutered.
Any licensed cattery may be exempted pursuant to regulation or ordinance from any requirement to obtain a license tag for each cat within the cattery.
The owner of a nonspayed or unneutered cat that is impounded once by a city or county animal control agency or shelter, society for the prevention of cruelty to animals, or humane society, shall be fined thirty-five dollars ($35) on the first occurrence, fifty dollars ($50) on the second occurrence, and one hundred dollars ($100) for the third or subsequent occurrence. These fines are for unneutered impounded animals only, and are not in lieu of any fines or impound fees imposed by any individual city, county, public animal control agency or shelter, society for the prevention of cruelty to animals shelter, or humane society shelter.
An animal control officer, humane officer, police officer, peace officer, or any agency authorized to enforce the Penal Code may write citations with a civil penalty stated in an amount corresponding to the violation as provided in subdivision (a). The fines shall be paid to the local municipality or public animal control agency or shelter, society for the prevention of cruelty to animals shelter, or humane society shelter. Any funds collected under this section shall be expended for the purpose of humane education, programs for low cost spaying and neutering of cats, and any additional costs incurred by the animal shelter in the administration of the requirements of this division.
Local ordinances concerning the adoption or placement procedures of any public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall be at least as restrictive as this division.
This section applies to each county and cities within each county, regardless of population.
No city or county, society for the prevention of cruelty to animals, or humane society is subject to any civil action by the owner of a cat that is spayed or neutered in accordance with this section.
The required holding period for a stray cat impounded pursuant to this division shall be six business days, not including the day of impoundment, except as follows:
If the public or private shelter has made the cat available for owner redemption on one weekday evening until at least 7 p.m. or one weekend day, the holding period shall be four business days, not including the day of impoundment.
If the public or private shelter has fewer than three full-time employees or is not open during all regular weekday business hours, and if it has established a procedure to enable owners to reclaim their cats by appointment at a mutually agreeable time when the public or private shelter would otherwise be closed, the holding period shall be four business days, not including the day of impoundment.
Notwithstanding paragraph (1), a kitten under eight weeks of age that is reasonably believed to be unowned may be available immediately for adoption beginning on the day on which the kitten is seized, taken up, or impounded, through the entire holding period.
A kitten under eight weeks of age that is reasonably believed to be unowned and is impounded in a public or private shelter may, before the euthanasia of that animal, be made immediately available for release to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue, or adoption organization if requested by the organization.
During the holding period required by this section and before the adoption or euthanasia of a cat impounded pursuant to this division, a public or private shelter shall scan the cat for a microchip that identifies the owner of that cat and shall make reasonable efforts to contact the owner and notify the owner that the cat is impounded and is available for redemption.
As used in this division, a “business day” includes any day that a public or private shelter is open to the public for at least four hours, excluding state holidays.
Except as provided in subdivision (b), a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall not release a cat to an owner seeking to reclaim it, or adopt out, sell, or give away a cat to a new owner, unless either of the following conditions is met:
The cat is microchipped with current information on the owner reclaiming the cat or new owner receiving the cat, as applicable, and the owner or new owner is registered with the microchip registry company as the primary owner of the cat. The public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall not be registered with a microchip registry company as the primary owner of the cat. Upon adoption, sale, giving away, or transfer of ownership, the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall provide information on the transference of ownership, including microchip company information, the microchip number and any other relevant identifiers, and any other information needed for an owner or new owner to register themselves as the microchip’s primary contact, as applicable.
If the agency, shelter, or group does not have microchipping capability on location, the agency, shelter, or group first obtains from the owner reclaiming the cat or new owner receiving the cat an agreement that requires the owner or new owner to present to the agency, shelter, or group, within the next 30 days, proof that the cat is microchipped as described in subparagraph (A).
If the agency, shelter, or group does not have microchipping capability on location, the agency, shelter, or group shall make a good faith effort to maintain a list of local and regional free or discounted regional microchipping services and provide that information to the owner or new owner.
An agency, shelter, or group may require proof that the cat is microchipped pursuant to paragraph (1) before releasing, adopting out, selling, or giving away the cat. If a cat has a preexisting microchip or there is reasonable proof of ownership, the agency, shelter, or group shall document and retain a record of all efforts made to contact the microchip’s primary registrant or other demonstrated owner for at least two years.
For purposes of subparagraph (B) of paragraph (1), an owner reclaiming a cat or new owner receiving a cat is not required to register the cat’s microchip number with a microchip registry company that will use, without the owner’s or new owner’s consent, the personal information of the owner or new owner for purposes other than to reunite the owner or new owner with the cat.
Notwithstanding subdivision (a), this section does not require a cat to be microchipped if a licensed veterinarian certifies in writing that the cat is medically unfit for the microchipping procedure because the cat has a physical condition that would be substantially aggravated by the procedure.
Notwithstanding subdivision (a), this section does not require a cat to be microchipped if the agency, shelter, or group receives a signed form from the owner reclaiming the cat or new owner receiving the cat that states that the cost of microchipping would impose an economic hardship for the owner or new owner.
An agency, shelter, or group that does not have microchipping capability on location is not subject to the civil penalty described in this subdivision upon obtaining the agreement described in subparagraph (B) of paragraph (1) of subdivision (a).
This section does not apply to a cat that is temporarily housed under an emergency evacuation order.
Upon relinquishment of a cat to a public or private shelter, the owner of that cat shall present sufficient identification to establish his or her ownership of the cat and shall sign a statement that he or she is the lawful owner of the cat.
Any person who provides false information pursuant to this subdivision about his or her ownership of the cat shall be liable to the true owner of the cat in the amount of one thousand dollars ($1,000).
The Legislature finds and declares the following:
Domestic cats’ temperaments range from completely docile indoor pets to completely unsocialized outdoor cats that avoid all contact with humans.
“Feral cats” are cats with temperaments that are completely unsocialized, although frightened or injured tame pet cats may appear to be feral.
Some people care for or own feral cats.
Feral cats pose particular safety hazards for animal shelter employees.
It is cruel to keep feral cats caged for long periods of time; however, it is not always easy to distinguish a feral cat from a frightened tame cat.
For the purposes of this section, a “feral cat” is defined as a cat without owner identification of any kind whose usual and consistent temperament is extreme fear and resistance to contact with people. A feral cat is totally unsocialized to people.
Notwithstanding Section 31752, if an apparently feral cat has not been reclaimed by its owner or caretaker within the first three days of the required holding period, animal shelter personnel qualified to verify the temperament of the animal shall verify whether it is feral or tame by using a standardized protocol. If the cat is determined to be docile or a frightened or difficult tame cat, the cat shall be held for the entire required holding period specified in Section 31752. If the cat is determined to be truly feral, the cat may be euthanized or relinquished to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal adoption organization that agrees to the spaying or neutering of the cat if it has not already been spayed or neutered. In addition to any required spay or neuter deposit, the animal shelter, at its discretion, may assess a fee, not to exceed the standard adoption fee, for the animal released.
A rabbit, guinea pig, hamster, potbellied pig, bird, lizard, snake, turtle, or tortoise that is legally allowed as personal property and that is impounded in a public or private shelter shall be held for the same period of time, under the same requirements of care, and with the same opportunities for redemption and adoption by new owners or nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue, or adoption organizations as provided for cats and dogs. The public or private shelter may enter into cooperative agreements with animal rescue or adoption organizations regarding rabbits that are equivalent to those cooperative agreements authorized in Section 31108 regarding dogs and Section 31752 regarding cats. Section 17006 shall also apply to these animals. In addition to a required spay or neuter deposit, the public or private shelter, at its discretion, may assess a fee, not to exceed the standard adoption fee, for animals adopted by new owners or released to nonprofit animal rescue or adoption organizations pursuant to this section.
Except as provided in Section 17006, an animal relinquished by the purported owner that is of a species impounded by public or private shelters shall be held for the same holding periods, with the same requirements of care, applicable to stray dogs and cats in Sections 31108 and 31752, and shall be available for owner redemption or adoption for the entire holding period.
Notwithstanding subdivision (a), kittens or puppies relinquished by the purported owner, or brought in by any other person with authority to relinquish them, to public or private shelters, may be available immediately for adoption, or made immediately available for release to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue, or adoption organization if requested by the organization.
CHAPTER 2. Special Provisions Applicable to Counties With a Population of Less Than 100,000 Persons [31760. - 31765.]
This chapter only applies to a county that has a population of less than 100,000 persons as of January 1, 2000, and to cities within that county. A county whose population exceeds 100,000 persons in a year subsequent to January 1, 2000, shall be subject to Chapter 1 (commencing with Section 31751) commencing on January 1 of the year immediately following the year in which the population of that county exceeds 100,000 persons.
Except as otherwise provided in this chapter, no public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall sell or give away any cat that has not been spayed or neutered.
A public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group may not transfer to a new owner a cat that has not been spayed or neutered, except as provided in subdivision (d).
A public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group may transfer to a new owner a cat that has not been spayed or neutered only if the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group does both of the following:
Requires a written agreement, executed by the recipient, acknowledging the cat is not spayed or neutered and the recipient agrees in writing to be responsible for ensuring the cat will be spayed or neutered within 30 business days after the agreement is signed.
Receives from the recipient a sterilization deposit of not less than forty dollars ($40) and not more than seventy-five dollars ($75), the terms of which are part of the written agreement executed by the recipient under this section.
Public animal control agencies or shelters, society for the prevention of cruelty to animals shelters, humane society shelters, and rescue groups may enter into cooperative agreements with each other and with veterinarians in lieu of requiring spaying and neutering deposits to carry out this section.
A spaying or neutering deposit may be either of the following:
A portion of the adoption fee or other fees rendered in acquiring the cat, which will enable the adopter to take the cat for spaying or neutering to a veterinarian with whom the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group has an agreement that provides that the veterinarian will bill the shelter directly for the sterilization.
A deposit that is both of the following:
Refundable to the recipient if proof of spaying or neutering of the cat is presented to the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group not more than 30 business days after the date the cat is spayed or neutered.
Forfeited to the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group if proof of spaying or neutering is not presented to the animal shelter within 30 business days.
Deposits shall be in the amount determined by the shelter, but shall not be less than forty dollars ($40) and shall not exceed seventy-five dollars ($75).
All spaying or neutering deposits forfeited or unclaimed under this section shall be retained by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group and shall be used by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group only for the following purposes:
A program to spay or neuter dogs and cats.
A public education program to reduce and prevent overpopulation of dogs and cats, and the related costs to local government.
A followup program to ensure that dogs and cats transferred by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group are spayed or neutered in accordance with the agreement executed under subdivision (d) of Section 31760.
Any additional costs incurred by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group in the administration of the requirements of this chapter.
If a recipient fails to comply with the spaying or neutering agreement within 30 business days after the agreement is signed, the recipient shall forfeit the sterilization deposit and is subject to a fine pursuant to Section 31763.
An animal control officer, humane officer, police officer, peace officer, or any agency authorized to enforce the Penal Code may write citations with a civil penalty stated in an amount corresponding to the violation as provided in Section 31763. The fines shall be paid to the local municipality or public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group. Any funds collected under this section shall be expended for the purpose of humane education, programs for low cost spaying and neutering of cats and any additional costs incurred by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group in the administration of the requirements of this chapter. This subdivision is applicable within any county.
If the owner, at any time subsequent to 30 business days after the spaying or neutering agreement was signed, provides proof of spaying or neutering, the deposit shall be forfeited, but any fine levied but not yet paid, shall be waived.
A public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group may extend the date by which spaying or neutering is to be completed at its discretion for good cause shown. Any extension shall be in writing.
If a veterinarian licensed to practice veterinary medicine in this state certifies that a cat is too sick or injured to be spayed or neutered, or that it would otherwise be detrimental to the health of the cat to be spayed or neutered, the adopter or purchaser shall pay the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group a deposit of not less than forty dollars ($40), and not more than seventy-five dollars ($75). The entity shall establish the amount of the deposit at the level it determines is necessary to encourage the spaying or neutering of cats. The deposit shall be temporary, and shall be retained only until the cat is healthy enough to be spayed or neutered as certified by a veterinarian licensed to practice veterinary medicine in this state. The cat shall be spayed or neutered within 14 business days of that certification. The adopter or purchaser shall obtain written proof of spaying or neutering from the veterinarian performing the operation. If the adopter or purchaser presents proof of spaying or neutering to the entity from which the cat was obtained within 30 business days, the adopter or purchaser shall receive a full refund of the deposit.
If an adopted cat dies within the spaying or neutering period provided for in the written agreement pursuant to Section 31760, subdivision (c) shall not apply to the cat. In that case, the recipient may receive a reimbursement of the sterilization deposit by submitting to the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group within the sterilization period a signed letter from a veterinarian licensed to practice medicine in this state stating that the animal has died. The letter shall include a description of the cat.
A person who commits any violation of subdivision (b) is subject to a civil penalty of not less than fifty dollars ($50) on a first violation of subdivision (b), and a civil penalty of not less than one hundred dollars ($100) on any second or subsequent violation of subdivision (b).
An action for a penalty proposed under this section may be commenced by the administrator of the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group from which the recipient obtained the animal that is the subject of the violation in a court of competent jurisdiction.
A person is subject to the civil penalties pursuant to subdivision (a) if that person does any of the following:
Falsifies any proof of spaying or neutering submitted for the purpose of compliance with this chapter.
Provides to a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group or a licensed veterinarian inaccurate information regarding ownership of any cat required to be submitted for spaying or neutering under this chapter.
Submits to a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group false information regarding sterilization fees or fee schedules.
Issues a check for insufficient funds for any spaying or neutering deposit required under this chapter.
All penalties collected under this section shall be retained by the public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group imposing the penalties, to be used solely for purposes provided for under subdivision (c) of Section 31761.
Local ordinances concerning the adoption or placement procedures of any animal shelter shall be at least as restrictive as this chapter.
A public animal shelter shall not charge an adoption fee for a cat if the person adopting the cat presents to the public animal shelter a current and valid driver’s license or identification card with the word “VETERAN” printed on its face pursuant to Section 12811 of the Vehicle Code.
A public animal shelter may limit the number of cats adopted from that public animal shelter pursuant to this section to one cat each six-month period.
Whenever a county, or a city that is within a county to which this chapter applies, requires cat license tags, the tag shall be issued for one-half or less of the fee required for a cat, if a certificate is presented from a licensed veterinarian that the cat has been spayed or neutered.
DIVISION 14.8. ANIMALS [32000. - 32102.]
PART 1. Animal Facilities and Shelters [32000. - 32003.]
The selling or giving away of any animal to any facility subject to the provision of Public Law 89, Chapter 544, of the 89th Congress, Second Session (7 U.S.C. Sec. 2131 et seq.) shall be conditioned upon compliance by the facility with the provisions of that law, and that selling or giving away shall be exempt from Sections 30503 and 31751.
All public animal shelters shelters operated by societies for the prevention of cruelty to animals, and humane shelters, that contract to perform public animal control services, shall provide the owners of lost animals and those who find lost animals with all of the following:
Ability to list the animals they have lost or found on “Lost and Found” lists maintained by the animal shelter.
Referrals to animals listed that may be the animals the owners or finders have lost or found.
The telephone numbers and addresses of other animal shelters in the same vicinity.
Advice as to means of publishing and disseminating information regarding lost animals.
The telephone numbers and addresses of volunteer groups that may be of assistance in locating lost animals.
The duties imposed by this section are mandatory duties for public entities for all purposes of the Government Code and for all private entities with which a public entity has contracted to perform those duties.
All public and private animal shelters shall keep accurate records on each animal taken up, medically treated, or impounded. The records shall include all of the following information and any other information required by the California Veterinary Medical Board:
The date the animal was taken up, medically treated, euthanized, or impounded.
The circumstances under which the animal was taken up, medically treated, euthanized, or impounded.
The names of the personnel who took up, medically treated, euthanized, or impounded the animal.
A description of any medical treatment provided to the animal and the name of the veterinarian of record.
The final disposition of the animal, including the name of the person who euthanized the animal or the name and address of the adopting party. These records shall be maintained for three years after the date on which the animal’s impoundment ends.
PART 2. California Veterinary Emergency Team Program [32100. - 32102.]
This part shall apply to the University of California only to the extent that the Regents of the University of California, by resolution, make any of these provisions applicable to the university.
The University of California, Davis, School of Veterinary Medicine shall develop a program called the California Veterinary Emergency Team. The program shall assist in the support and training of a network of government agencies, nongovernmental organizations, and individuals to assist in the evacuation and care of household and domestic animals and livestock in emergencies statewide, including disaster preparedness, response, recovery, and mitigation. The program shall also conduct or support research on best practices for the evacuation and care of the animals in disasters.
The program shall ensure that the training and the care provided by or coordinated by the program are at levels that are consistent with those standards generally accepted within the veterinary profession. The program shall deploy responders to oversee the network volunteers and ensure accepted practices are implemented in the field during emergencies.
The University of California, Davis, School of Veterinary Medicine, the secretary, and the Director of Emergency Services shall develop a memorandum of understanding for the university to consult with the secretary and the director regarding the coordination of the program’s activities with the state government’s disaster response practices and the deployment of the program’s participants during disasters. The memorandum of understanding shall outline program metrics.
The program shall provide a progress report every three years on the activities outlined in the memorandum of understanding to the secretary and the Director of Emergency Services.
For purposes of this part, “program” means the California Veterinary Emergency Team.
Funds made available for purposes of this part shall not be considered an offset to any other state funds appropriated to the University of California.
DIVISION 15. MILK AND MILK PRODUCTS ACT OF 1947 [32501. - 39912.]
PART 1. GENERALLY [32501. - 35312.]
CHAPTER 1. Short Title and Definitions [32501. - 32516.5.]
This division shall be known as the Milk and Milk Products Act of 1947.
There is within the Department of Food and Agriculture the Milk and Dairy Food Safety Branch.
Unless the context otherwise requires, the definitions in this chapter govern the construction of this division.
“Approved milk inspection service” means a milk inspection unit and laboratory which are maintained in connection with a county for the purpose of grading market milk and inspecting dairy farms which are producing market milk, or in connection with a county or city for the purpose of inspecting establishments as provided for in Section 33704, within an area which is designated and assigned by the director, conformable to this division and the regulations established by the director, which inspection service has been approved in writing by the director.
“Cream” means that portion of milk, rich in milk fat, which rises to the surface of milk that is left standing or which is separated from milk by centrifugal force.
“Dairy farm” means any place or premises upon which milk is produced for sale or other distribution and where more than two cows or water buffalo, or six goats, sheep, or other hooved mammals, are in lactation.
“Dairy farm scorecard” means the card which is adopted by the director pursuant to Section 32791 for the official scoring of dairy farms.
“Manufacturing cream” means cream which does not conform to the requirements of market cream.
“Manufacturing milk” means milk which does not conform to the requirements of market milk.
“Market milk” means milk which conforms to the standards which are provided in Chapter 2 (commencing with Section 35751), Part 2, of this division. Market milk includes components and derivatives of market milk. Market milk may be supplied to the consumer in the fluid state or may also be utilized in the manufacture of milk products.
“Milk” means the unadulterated lacteal secretion which is obtained from the udder of a cow, water buffalo, goat, sheep, or other hooved mammal.
“Milk product” or “dairy product” means any product which is prepared or manufactured from milk, for which product a standard of composition is established by this division, and any new milk product or combination milk and food product for which a temporary standard of composition is established pursuant to Chapter 1 (commencing with Section 36601) of Part 3. “Milk product” or “dairy product” does not include “products resembling milk products” as defined in Section 38912.
“Milk products plant” means any place in which a person engages in the business of handling, receiving, manufacturing, freezing, processing, or packaging milk, or any product of milk or engages in the business of manufacturing, freezing, or processing imitation ice cream or imitation ice milk. “Milk products plant” does not include a properly licensed retail food facility that does either of the following:
Packages dairy products in the presence of the consumer.
Cuts, wraps, and packages cheese, excluding cottage cheese, that is purchased from a licensed manufacturer of milk products, labels the products pursuant to all applicable state and federal laws, and sells the product only to consumers on the premises of the retail food facility.
“Milk products plant scorecard” means the card which is adopted by the director pursuant to Section 32791 for the official scoring of milk products plants.
“Pasteurized” means that the milk or milk product has been subjected to a process which is described in Chapter 8 (commencing with Section 34001) of this part, or other process which has been demonstrated to be equally efficient and has been approved by the director.
“Product of milk” means milk product as set forth in Section 32512 of this division.
“Restricted use market milk” means market milk that does not conform to the standards specified in Article 2 (commencing with Section 35781), Article 13 (commencing with Section 36091), and Article 14 (commencing with Section 36123) of Chapter 2 of Part 2. Restricted use market milk includes components and derivatives of restricted use market milk. Restricted use market milk may only be utilized in manufactured milk products as defined in Part 3 (commencing with Section 36601) that do not require the use of market milk.
CHAPTER 2. Powers of Director [32701. - 32814.]
ARTICLE 1. Enforcement [32701. - 32704.]
The director shall, and representatives of approved milk inspection services under his general supervision may, enforce this division.
The director may bring an action to enjoin any violation or threatened violation of any provision of this division, in the superior court in and for the county in which the violation occurred or is about to occur.
Any proceeding pursuant to this article shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.
Any money in the Department of Agriculture Fund which is derived under this division may be expended for the enforcement of any or all of the provisions of this division, notwithstanding any other provision of law, except Section 35252, which limits the expenditure of any such money to some specific purpose or to the enforcement of some specific section, article, or chapter of this division.
ARTICLE 2. Inspection and Samples [32731. - 32734.]
The director may do all of the following:
Enter and inspect any premises or conveyance where any provision of this division is applicable.
Take a sample of any milk, cream, product of milk or cream, or product resembling milk products.
Impound and hold for analysis or as evidence any milk, cream, product of milk or cream, or product resembling milk products.
Impound and hold for analysis or as evidence any container of milk, cream, or product of milk or cream.
Examine, inspect, test or by other means determine the health of any cow or goat.
Exclude from the herd any animal which produces milk that is unfit for human consumption.
No prosecution which is based upon a sample of milk, cream, a product of milk or cream, or a product resembling milk products shall be had unless a duplicate of the sample is left with the accused.
Samples which are taken in connection with the establishment of proof of fraudulent manipulation of the tests for the basis of payment for milk or cream, need not, however, be given to the accused.
Samples of milk, milk products, and products resembling milk products to be tested for coliform bacteria shall be taken at the plant where packaged or from delivery vehicles owned or operated by the plant.
Sampling procedures and laboratory methods for the determination of coliform bacteria shall be established by regulations issued by the director to insure accuracy of the sampling.
In addition to any other provision of law, the secretary shall require inspections at least quarterly of all milk products plants that pasteurize milk or milk products, manufacture cheese, or manufacture raw milk cheese. The inspection procedures shall include sanitation inspections and pasteurization equipment controls and tests, where applicable. The procedure shall include, but is not limited to, all of the following:
Inspection and testing of all pasteurization equipment to ensure its cleanliness and proper operating condition.
Inspection of all equipment, facilities, raw milk and milk products handling practices, and surroundings to ensure adequate sanitation.
Sampling and testing of raw products and processed milk products.
The findings of all inspections, sample results, controls, and tests shall be prepared in writing by the inspector and submitted to the secretary.
Milk products plants that have been approved to use Hazard Analysis Critical Control Points (HACCP) procedures under the auspices of the National Conference of Interstate Milk Shipments, or a state or federal regulatory agency, may adhere to the inspection protocol of the HACCP regulatory enforcement procedures.
ARTICLE 3. Animals Carrying Pesticide Residues [32741. - 32743.]
If the director determines that any female dairy animal, including any goat, is carrying pesticide residues in its body or has been fed any feed which contains an amount of pesticide residues which will cause the milk produced from the animal to be adulterated with pesticide residues, he may order the animal to be held on the premises where it is found until he has determined that milk produced by the animal is not adulterated with pesticide residues.
It is unlawful for any person to move any such animal except under written permission of the director and in accordance with the conditions stated in such written permission, or until the hold order has been revoked.
The director shall notify the owner or agent of any animal which is ordered held, or for which he has specified conditions for moving, pursuant to this article.
ARTICLE 4. Condemnation [32761. - 32767.]
The director may condemn any of the following:
Milk or cream which is found to be impure, tainted, unclean, adulterated, or unwholesome.
Milk or cream that is produced, handled, or kept in an insanitary place.
The director shall test milk and milk products for the presence of drug residues. The director may adopt, by regulation, official drug residue testing methods and procedures for industry testing of raw milk from all bulk raw milk pickup tankers, prior to processing, for the presence of beta-lactam drugs and for other drug residues, as determined by the director. The director shall adopt, by regulation, official drug residue testing methods used for the detection of drug residue in farm bulk milk tanks, bulk milk pickup tankers, and milk and milk products in processing plants, wholesale outlets, and retail outlets.
The director may mark any condemned milk or cream for identification.
The director shall prescribe the method of marking condemned milk or cream for identification but shall not, in marking condemned milk or cream, add any substance to it which shall render the condemned milk or cream unsuitable for a use or purpose except human consumption.
Condemned milk or cream which has been marked for identification shall be returned to the producer of the milk or cream, if requested by the producer, or shall be used in the manufacture of products other than products which are used for human consumption, or shall be destroyed. Such condemned milk or cream which has been marked for identification shall not be destroyed until the producer of the milk or cream has been notified. Upon such notification the producer shall immediately request the milk or cream be returned to him at his expense or request that it be destroyed.
The director may condemn any product of milk or cream or product resembling a milk product which is within any of the following classes:
Impure, unclean, unwholesome, or stale.
Produced or manufactured, handled, or kept in an insanitary place.
Adulterated or mislabled.
The director may destroy or mark for identification with a nontoxic substance, any condemned product of milk or cream or product resembling a milk product.
No manufactured product of milk or cream or product resembling a milk product may be destroyed by the director without due notice to the owner of the product, and a hearing before the director or an officer designated by him.
ARTICLE 5. Reports, Scorecards and Statistics [32791. - 32794.]
The director shall adopt a dairy farm scorecard and a milk products plant scorecard for the official scoring of dairies and milk products plants. The director shall, either directly or indirectly through his authorized agents or those of an approved milk inspection service, do all of the following:
Inspect dairy farms and milk products plants.
Conduct or supervise milk scoring or other contests if deemed advisable by the director.
The director shall do all of the following:
Collect, compile, and publish statistics relative to the dairy industry, oleomargarine, and products resembling milk products.
Disseminate the statistics and other information useful to the general good and development of the dairy industry of the state.
The director shall provide blanks for reporting statistics on milk and milk products and on products resembling milk products. He shall, on or before the first of each month, cause to be mailed to each person that is engaged in operating any milk products plant, any plant in which products resembling milk products are manufactured, and to each market milk distributor such number of the blanks as may be necessary. Each person that is engaged in operating any such plant, or that is a market milk distributor shall, within 30 days after the blank is mailed to him, transmit to the director a full and accurate report of the amount of milk and milk products and products resembling milk products which he produced, purchased, manufactured or distributed during the preceding month.
In addition to the monthly report, the director may require annual, semiannual, or quarterly reports of the same general character as the monthly report.
ARTICLE 6. Suspension or Revocation of Licenses or Permits [32811. - 32814.]
Any license or permit that is issued pursuant to this division, may be suspended or revoked by the director, after a hearing before the director if, within 30 days after written notice, the licensee or permittee fails to comply with the laws and regulations under which the license or permit was granted, fails or refuses to complete a drug residue prevention program, or has been found to have produced milk in violation of the drug residue provisions of this chapter on three or more occasions within a 12-month period. The licensee or permittee shall have written notice of the time and place of the hearing and the charges that are made against him or her.
Thirty days’ notice is not required before a license or permit may be suspended or revoked by the director where the premises or appurtenances of the licensee or permittee are in a manifestly insanitary condition nor in cases of manipulation by the licensee or permittee of pasteurization equipment, pasteurizer, recording and indicating thermometer charts or pasteurization temperature control devices, measures, weights, samples, or tests for milk constituents or bacterial, or somatic cell counts of milk or cream upon which payment is based, or the record of such tests or in any instance where the director determines there is an imminent or substantial danger to public health.
The proceedings for the suspension or revocation of a license or permit shall be conducted pursuant to Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2 of the Government Code. The director shall have all the powers granted in such chapter.
In addition to any other penalty or fine prescribed by law, including, but not limited to, denial, suspension, or revocation of any license, permit or registration pursuant to Sections 236 and 32811, a dairy producer found to have produced milk in violation of the drug residue provisions of this chapter shall be subject to a civil penalty as follows:
For the first drug residue violation in a 12-month period that caused the condemnation of a bulk raw milk pickup tanker load, the dairy producer responsible for the condemnation shall be subject to a penalty of two hundred fifty dollars ($250).
For the second or subsequent drug residue violation in a 12-month period that caused the condemnation of a bulk raw milk pickup tanker load, the dairy producer responsible for the condemnation shall be subject to a penalty not to exceed five hundred dollars ($500).
In addition to the penalties specified in subdivision (a), a dairy producer found to have produced milk in violation of the drug residue provisions of this chapter shall complete a drug residue prevention program, as prescribed by the secretary, within 30 days after receipt of written notice.
In addition to the penalties specified in subdivisions (a) and (b), a dairy producer whose drug residue contaminated milk is responsible for the condemnation of a bulk raw milk pickup tanker load shall be civilly liable to all other producers with milk in the same bulk raw milk pickup tanker load for the full value of their portion of the contaminated milk load.
In addition to the penalties specified in subdivisions (a), (b), and (c), a dairy producer found to have produced milk in violation of the drug residue provisions of this chapter shall be liable to the department for reasonable investigation and enforcement costs, including attorney’s fees.
Nothing in this section shall be construed to limit the secretary’s discretion to impose any one, or all, or any combination of remedies or penalties available by statute or regulation.
CHAPTER 3. General Requirements [32901. - 32921.]
It is unlawful for any person to sell, give away, deliver, or knowingly purchase or receive any milk, cream, product of milk or cream, imitation milk, imitation cream, product resembling a milk product, or any substitute for any milk product which does not conform to the standards which are established by this division. It is unlawful for any person to sell, give away, deliver, or knowingly purchase or receive as, or for, milk or cream any product which is prepared or manufactured by the mixing or blending of milk, skim milk, or any of the derivatives of milk or skim milk, with butter.
It is unlawful for any person to sell, for human consumption as cow’s milk, any goat’s milk or any mixture of cow’s milk and goat’s milk. It is unlawful for any person to sell for human consumption as goat’s milk, any cow’s milk or any mixture of goat’s milk and cow’s milk.
It is unlawful for any person to sell any milk, or any product of milk, from cows or goats that have not negatively passed a tuberculin test applied regularly in accordance with regulations of the department by one of the following:
A veterinarian in the employ of the department.
A veterinarian of the United States Department of Agriculture.
A veterinarian approved by the department and accredited by the United States Department of Agriculture.
In the case of cows or goats which are producing milk that is to be used as raw market milk, “tuberculin test applied regularly” means at least once annually.
It is unlawful for any person to sell any milk, or any product of milk, from cows or goats that are reactors to a brucellosis test applied in accordance with the law and regulations of the department.
If reacting animals are found they shall be removed from the herd immediately by the owner and kept separate and apart from other cattle or goats and disposed of in accordance with the provisions of Part 2 (commencing with Section 9801) of Division 5.
Milk or any milk product may be sold in this state in the following cases:
If such milk or milk product was produced in a modified accredited or modified certified area or their equivalent within the United States.
If, in the case of any milk product which was produced in a foreign country, satisfactory evidence is presented which indicates its origin from nonreacting tuberculin or brucellosis tested animals.
It is unlawful for any person to sell, give away, or deliver, or to knowingly purchase or receive any impure, polluted, tainted, unclean, unwholesome, stale or adulterated milk or cream, or any product which is manufactured wholly or in part from such milk or cream.
It is unlawful for any person to sell, give away, deliver, or knowingly purchase or receive any milk or any product of milk which has been produced or handled in or by a dairy farm, milk products plant, carrier, store, or depot, that is in an insanitary condition.
It is unlawful for any person to produce, manufacture, prepare for sale, or sell any of the following:
Any milk, cream, or other product of milk to which has been added, or that contains, any compound of boron, salicylic acid, formaldehyde, or other preservative.
Any milk or product of milk, except as otherwise provided in this division, to which has been added any coloring matter or any gelatin or other substance.
This section does not prohibit the use of harmless coloring matter and common salt (chloride of sodium) in butter and cheese, the use of gelatin, sweetening, eggs or egg products, harmless coloring or flavoring, or edible stabilizer in the manufacture of ice cream, ice milk, sherbet, or edible stabilizer or citric acid in the creaming mixture for cottage cheese, or lowfat cottage cheese, or the use of alkalies approved by the director, in the manufacture of butter, or the adjustment of the acidity of ice cream mix within the limits designated by the director.
Mixed tocopherols (vitamin E) or ascorbic palmitate (vitamin C), as approved by the director, may be added to UHT cream, UHT whipped cream, UHT cream topping, whipped cream, or cream topping, and buttermilk to protect and enhance the flavor of these products.
Except as otherwise provided in this division, it is unlawful for any person to manufacture or sell any milk, cream, skim milk, buttermilk, condensed or evaporated milk, powdered milk, condensed skim milk, or any of the fluid derivatives of any of them or any ice cream, ice milk, cheese, or any other milk product to which has been added any fat or oil, except milk fat, or the fat naturally contained in chocolate and not separated from it, either under the name of such products, articles, or the derivatives of them, or under any fictitious or trade name. The addition, however, to the products which are commonly known as condensed skim milk, condensed buttermilk, or semisolid buttermilk of not more than 5 percent of pure cod liver oil is not a violation of this section, if the product is sold for poultry or stock feed.
A person shall not efface, erase, cancel, or remove any mark, statement, or label which is required by this division, with intent to mislead, deceive, or to violate any provision of this division.
The secretary shall enforce the labeling requirements established under the Federal Food, Drug and Cosmetic Act (21 U.S.C. Sec. 301 et seq.) and Title 21 of the Code of Federal Regulations in the review of labels to be used in connection with advertising and retail sales of milk, frozen and cultured dairy products, cheese, and products resembling milk products and for all dairy products sold in the state.
Sample copies of all labels to be used in connection with advertising and consumer sales of milk, milk products, frozen desserts, cheeses, and products resembling milk products shall be submitted to the secretary for approval before the use of those labels.
A person shall not use the name of any such product, orally, printed, or written, in connection with the sale of any product or substance unless such product or substance conforms to the definitions and standards which are prescribed by this division.
A person shall not make or cause to be made any statement, oral, written, or printed, or make or print, or cause to be made or printed, any design, symbol, picture, or illustration in connection with the advertising or sale of any product, article, or compound which is defined in this division, which statement, design, symbol, picture, or illustration is false, deceptive, or misleading in any manner.
The labeling requirements of Sections 32912, 32913, and 32914 also apply to milk and cream which is sold in bulk to the wholesale trade and to milk and cream which is sold by any milk products plant for processing purposes. When any nonnutritive or artificial sweetener is added to any milk product or product resembling a milk product, the words “artificially sweetened” shall become a part of the name of the product, except milk products sweetened with sweeteners pursuant to Article 4 (commencing with Section 36670) of Chapter 1 of Part 3.
All cream, skim milk, buttermilk, ice cream, butter, cheese, or other milk product which is sold, designated, or advertised as certified shall be conspicuously marked with the name of the commission which certifies it and certifies the milk from which such cream, skim milk, buttermilk, ice cream, butter, cheese and other milk product was obtained.
A person shall not render any statement or bill which shows the weight, grade, percentage of fat, amount of fat, solids not fat, bacteria count, price, or total amount paid, for milk or any milk product which is false, deceptive, or misleading in any particular.
Every vehicle from which any milk or milk product is regularly sold and marketed or peddled shall have the name of the distributor plainly lettered upon it in letters at least 3 inches high on both sides of such vehicle.
The director may by regulation require every distributor that delivers any packaged milk in fluid state to any agency of the United States government for resale for off-premises consumption to label the containers of such packaged milk, if practicable, with a conspicuous notice that the milk has been procured for use by such agency. The director may also require such additional notice regarding prohibition against resale of such packaged milk as he, under the circumstances, deems proper.
Any pasteurized milk or milk product, frozen dessert, cheese, or product resembling milk products shall be produced, distributed, or sold in accordance with the current good manufacturing practices set forth in Title 21 of the Code of Federal Regulations, as amended.
Any sanitary, sterilization, or pasteurization requirement relating to or affecting the production of raw milk for pasteurization or the processing, distribution, or sale of any pasteurized milk or pasteurized milk product, frozen dessert, cheese, or product resembling milk products, that is adopted by the secretary pursuant to this section, shall be in conformity with the “Current Good Manufacturing Practice in Manufacturing, Packing, or Holding Human Food” in Part 110 (commencing with Section 110.3) of Title 21 of the Code of Federal Regulations. The secretary, after public hearing, may adopt regulations referencing sections or portions thereof, of the most current revision of the “Grade A Pasteurized Milk Ordinance/Grade A Dry Milk Ordinance—Recommendations of the United States Public Health Service/Food and Drug Administration.”
The secretary may, by regulation, adopt official final action methods of testing for the determination of the components of milk and products of milk as required to meet a legal compositional requirement of this division.
CHAPTER 4. Inspection Services [33051. - 33351.]
ARTICLE 1. Definitions [33051. - 33053.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Eligible list” means the list established by the State Personnel Board pursuant to Section 33111 of persons who are qualified to be employed by the department in the enforcement of this division and the regulations of the director.
“Established milk inspection area” means an area in which the inspection or grading service is established and conducted by the director and wherein such service is not conducted under an approved milk inspection service.
ARTICLE 2. General Provisions [33081. - 33087.]
The director may authorize as many approved milk inspection services as may be necessary to properly carry out the provisions of this division and the regulations for its enforcement.
The director shall supervise the operation of all approved milk inspection services in the enforcement of this division and the regulations which are adopted by him or her.
The director may adopt regulations for the proper enforcement of this chapter.
The director, at least once each month, shall report to the Controller the total amount of money which is collected under Section 33294. He or she shall, at the same time, pay into the State Treasury the entire amount of the receipts which shall be credited to the Department of Food and Agriculture Fund and expended as provided in Section 32704.
An advisory committee shall be established to assist the director in the administration of this chapter. The members of the advisory committee shall be appointed by the director and may hold office at the pleasure of the director.
The members of the advisory committee shall include persons representing producers, milk products plants, approved milk inspection services personnel, and the public generally. The advisory committee shall consist of such number of members as the director finds is necessary to assist properly in the administration of this chapter. In no event shall the membership of the advisory committee exceed seven members.
A member of the advisory committee shall not receive a salary. The director may authorize the reimbursement for any actual expenses incurred while engaged in performing the duties authorized by this chapter.
ARTICLE 3. Employees [33111. - 33121.]
The State Personnel Board shall hold examinations in various parts of the state for the purpose of determining the qualifications of persons who desire to become employed by the department in the enforcement of this division and the regulations of the director, and shall establish an eligible list of persons who are qualified for such employment.
The director shall examine any interested person qualified under Section 33113 for certification as a registered dairy inspector. Such an examination shall be both written and oral. A certificate as a registered dairy inspector shall be issued to any person who passes the examination.
No person shall be eligible for the examination given under Section 33111 or any employment as a dairy inspector by an approved milk inspection service, unless he is certificated pursuant to the provisions of this section. Such certification shall be valid for four years after a person discontinues his employment as a registered dairy inspector or a registered sanitarian.
The director may adopt such regulations as are necessary to carry out the provisions of this article.
Notwithstanding any other provision of this chapter, the director shall issue a limited milk inspection certificate to any registered sanitarian employed by any city or county health department who will be employed in connection with an approved milk inspection service. A person holding the certificate shall have full authority to enforce all provisions of this code if this authority is restricted to the inspection and sampling of market milk products in retail outlets and in the inspection of retail establishments licensed pursuant to Section 33704 where an approved milk inspection service has entered into an agreement with the director pursuant to Section 33704.
The limited milk inspection certificate shall be issued following the completion of a certification course that has been approved by the director. This limited milk inspection certificate shall expire upon the termination of employment as a registered sanitarian by the individual or at any time an approved milk inspection service has been terminated.
A person is not eligible to take the examination unless the person possesses one of the following qualifications:
Graduation from a four-year college with specialization in studies which related to dairy farms, milk and milk products, the food sciences, or animal science.
Graduation from a veterinary college of recognized standing at the time of graduation and at least one year of experience in the production, processing, or inspection of milk or milk products.
Employed as a registered sanitarian in the State of California for at least two years immediately prior to applying for the certification examination and possesses a bachelor’s degree.
The director shall establish and collect fees for the application and for the examination of persons for the position of registered dairy inspector to cover the cost of carrying out the provisions of this article. The application fee shall not exceed ten dollars ($10) and the examination fee shall not exceed thirty dollars ($30). Any fees collected pursuant to this section shall be deposited in the Department of Food and Agriculture Fund and be used in carrying out this article.
The director shall, from time to time, conduct special refresher courses which shall not exceed five days, at various convenient places in the state for the purpose of training persons who are employed by the department and by each county in the enforcement of this division, regulations of the director, or the ordinances of any county which relate to the inspection of dairy farms, milk products plants, or milk products, in all of the following:
Dairy science.
Uniform methods of enforcement of this division.
The regulations of the director.
Ordinances of counties which concern dairy farms, milk products plants, and milk products.
Other pertinent information which concerns dairy farms, milk products plants, and milk products.
Attendance at such a refresher course shall be mandatory, in the discretion of the director, upon any or all persons who are employed by the department and each county and city in the inspection of dairy farms, milk products plants, and milk products.
Any person who is employed by the department or any county or city shall be paid his salary or compensation while he is attending such a special refresher course.
This article does not apply to any clerical employee, or to any person who is employed in a laboratory.
ARTICLE 4. Designation and Assignment [33141. - 33151.]
If a producer produces market milk within the jurisdiction of an approved milk inspection service, the director, after an investigation and consultation with the health officer of each county which is involved, shall do all of the following:
Designate and assign the county approved milk inspection service which shall conduct the dairy farm inspection.
Define the district or area in which each county shall conduct the dairy farm inspection.
The director, in making the designation and assignment, shall take into consideration, in addition to other matters which are considered, the geographical convenience of each county approved milk inspection service which renders such inspection, and the percentage of market milk and related products which are sold or delivered within each.
No more than one approved milk inspection service may be designated by the director for any single dairy farm which produces market milk.
Any producer or approved milk inspection service may file with the director a written protest regarding any designation which is made pursuant to Section 33141. A petition, signed by 51 percent or more of producers of any grade of milk within the jurisdiction of any approved milk inspection service, may request the termination of the county approved milk inspection service and that instead an inspection service be established by the director. The written protest or petition shall state all the reasons for the protest or petition.
The director may, within 30 days after the receipt of the protest and shall, within 30 days after receipt of a petition, and after at least five days’ written notice to any approved milk inspection service which is concerned, announce a date upon which a hearing on the protest or petition will be held.
The director upon his own motion, after giving at least 10 days written notice to any approved milk inspection service which is concerned, may hold a hearing on any designation which is made pursuant to Section 33141 if it appears that a change in such designation may result in greater uniformity in inspection areas and eliminate duplication of effort and traveling.
After the hearing, the director may revoke, amend, or retain such designation, designate another approved milk inspection service to perform the inspection as provided in this article, or establish and conduct an inspection service unless the funds which are derived under Article 9 (commencing with Section 33291) of this chapter are inadequate to maintain a milk inspection service established by the director.
Upon the approval in writing of a milk inspection service by the director, the approved milk inspection service shall do all of the following:
Grade market milk as produced or sold under its jurisdiction.
Require the use of the respective grade designations as prescribed in this division.
Enforce this division in accordance with the regulations which are adopted by the director that pertain to market milk.
ARTICLE 5. Establishment of Inspection Service by Director [33171. - 33171.]
In areas in which an approved milk inspection service has not been designated by the director pursuant to Article 4 (commencing with Section 33141), the director shall establish and conduct a milk inspection service for inspection of dairy farms. In all areas the director shall establish and conduct a milk inspection service for inspection of milk products plants, and for inspection of the facilities of distributors that obtain milk and milk products from a milk products plant not subject to the jurisdiction of the director.
ARTICLE 6. Interagency Contracts [33201. - 33201.]
Counties may, subject to the approval of the director, contract, one with the other, for the maintenance by one, or some of them, of the approved milk inspection service within the limits of the other as will best carry out this division and avoid duplication.
ARTICLE 7. Permits [33221. - 33228.]
As used in this article, “permit” means a permit that is issued pursuant to Section 33222.
Every person, before engaging in the business of producing market milk or manufacturing milk, shall obtain a permit from the secretary or from the approved milk inspection service that is maintained by the county designated by the secretary pursuant to this chapter for each dairy farm.
If a permit is issued by an approved milk inspection service designated by the secretary to a producer of market milk or manufacturing milk, no other permit shall be required of the producer by any other approved milk inspection service.
Upon receipt of an application for a permit, the secretary or approved milk inspection service shall cause an investigation to be made of the dairy farm where milk is produced and of the herd that produces the milk.
If this division and the standards that are established by or adopted pursuant to the authority that is granted in this division are complied with, a permit shall be issued by the secretary or the designated approved milk inspection service, to the dairy farm. The permit shall be issued for a period not to exceed one year.
Every person shall obtain a permit from the secretary before engaging in the business of processing or distributing market milk. Upon receipt of an application for a permit, the secretary shall cause an investigation to be made of the milk products plant or place of business from which milk is distributed. If this division and the standards that are established pursuant to the authority that is granted in this division are complied with, a permit shall be issued by the secretary to the milk products plant or place of business. The permit shall be issued for a period not to exceed one year.
Each person, before engaging in the transportation of unpackaged market milk or unpackaged market milk products (bulk milk hauler), shall obtain a bulk milk hauler tanker permit from the secretary for each tanker that person uses in the bulk transport of unpackaged market milk or unpackaged market milk products. Upon receipt of an application for a permit, the secretary shall cause an inspection to be made of the bulk milk hauler’s tanker for which the application is made. An inspection required for the issuance of a permit shall be conducted in a uniform and efficient manner. A permit shall be issued for each tanker that is in compliance with this division and the standards that are established pursuant to this division. The permit shall be valid for not more than one year, shall be permanently affixed in a conspicuous manner on the rear frame of the tanker for which it is issued, and shall be renewed within one year from the date of issue upon payment of an annual inspection fee. The assessment of the annual inspection fee shall be based upon the actual cost of the inspection and shall be subject to verification upon the request of a permit applicant. The permit shall conform with all requirements of the United States Food and Drug Administration Coded Memorandum implementing the enforcement provisions for permitting and inspection of bulk milk tankers.
This section shall become operative upon the adoption by the United States Food and Drug Administration of the Coded Memorandum implementing enforcement provisions for permitting and inspection of bulk milk tankers. The secretary may adopt regulations necessary to implement this section.
Any person, before engaging the business of cleaning or sanitizing bulk milk tanker trucks shall obtain a bulk milk tanker truck cleaning or sanitizing permit from the secretary for each facility not attached to a licensed milk products plant or market milk dairy farm that is used in the cleaning or sanitizing of bulk milk tanker trucks.
Bulk milk tanker trucks shall be cleaned or sanitized only at a facility holding a valid bulk milk tanker truck cleaning facility permit, a licensed milk products plant, or a permitted market milk dairy farm.
Upon receipt of an application for a bulk milk tanker truck cleaning facility permit, the secretary shall cause an inspection to be made of the facility. If this division and the standards that are established pursuant to the authority that is granted in this division are complied with, a permit shall be issued by the secretary to the bulk milk tanker truck cleaning or sanitizing facility or place of business. The permit shall be issued for a period not to exceed one year.
The secretary shall establish a cost-related inspection fee for the inspection and permitting of bulk milk tanker truck cleaning or sanitizing facilities not attached to a licensed milk products plant or market milk dairy farm.
ARTICLE 8. Fees Payable to a County [33251. - 33265.]
The county that maintains an approved milk inspection service where an inspection fee is levied and collected shall determine the actual cost of making an inspection of a dairy farm that produces milk within the area that is designated and assigned to that service by the secretary. Records of the cost determination shall be made and maintained by the county for examination by the secretary or other interested person.
For the purpose of maintaining an approved milk inspection service, the county may, but is not required to, levy and collect an inspection fee or fees from producers of milk that is produced at dairy farms within the area that is designated and assigned to that service by the secretary.
The dairy farm inspection fee shall not exceed the actual cost to the county of making the dairy farm inspection, provided that an additional 15 percent of the fees collected shall be remitted to the secretary to cover the reasonable cost of administering Sections 33082, 33118, and 33119, and the oversight requirements of the National Conference on Interstate Milk Shipments.
Any fees levied by an approved milk inspection service for dairy farm inspection shall not exceed the maximum fees provided for state established inspection.
The cost of the inspections may include all directly related costs.
If an approved milk inspection service inspects a dairy farm, the dairy farm inspection fee, if levied, shall be collected from the producer of milk that is produced on the dairy farm.
Charges that are made by any approved milk inspection service for inspection fees are subject to audit by the secretary, and for this purpose the secretary shall have access to all books, papers, records, or documents that pertain to any and all transactions of any approved milk inspection service and may inspect and copy them in any place within the state.
Ten percent of the producers within any approved inspection area may file with the secretary a written protest as to the reasonableness of any inspection fee that is levied and collected from the producer pursuant to Section 33252.
The secretary shall, after 30 days’ public notice of the hearing, and after five days’ written notice to any approved milk inspection service that is concerned, hold a hearing on the protest. The secretary may deny, postpone, or consolidate hearings for good cause. The secretary shall provide in writing the reasons for the denial, postponement, or consolidation of hearings.
Upon the completion of hearing, the secretary may establish a reasonable fee for the inspection that is the subject of the protest. Thereafter until the order of the secretary is revoked, suspended, or amended, the producer, notwithstanding any other provision of this article, is not required to pay to the approved milk inspection service any inspection fee in excess of the fee that is designated as reasonable by the secretary. The secretary shall make, and maintain, written findings upon which inspection fees are established pursuant to this section. The written findings shall be readily available to any interested person for examination.
A county shall not, through an approved milk inspection service or otherwise, levy or collect any fee or tax for the purpose of inspecting any milk or dairy product on any truck or other vehicle or during transportation of that milk or dairy product.
ARTICLE 9. Fees Payable to the Secretary [33291. - 33298.]
Every person that is engaged in the production of milk outside the jurisdiction of an approved milk inspection service and every person engaged in the processing, manufacture, or distribution of milk, milk products, or products resembling milk products, in the cleaning or sanitizing of bulk milk tanker trucks, or in the processing, manufacture, or freezing of ice cream, ice milk, sherbet, or any similar frozen product shall pay a cost-related inspection fee, not to exceed the reasonable costs of the services provided, to the secretary.
Every milk products plant or milk handler that purchases, or otherwise acquires possession or control of, milk directly from producers shall deduct from payments that are due producers for milk, and shall pay to the secretary, the fee, not to exceed the reasonable costs of the services provided, required to be paid by the producer.
For purposes of this article, “milk handler” means any person that, as owner, agent, broker, or intermediary, receives, purchases, or otherwise acquires ownership, possession, or control of milk or manufacturing milk in unprocessed or bulk form from a producer for the purpose of manufacture, processing, sale, distribution, or other handling.
For purposes of this article, “producer” means any person that operates a dairy farm as defined in Section 32505.
The inspection fee is payable during the first week of January, April, July, and October of each year.
Every producer shall pay an inspection fee not to exceed twelve cents ($0.12) per hundredweight of the first 482,000 pounds only on milk produced by him or her during the quarter year preceding the date the inspection fee becomes due and payable or two hundred fifty dollars ($250), whichever is greater.
Notwithstanding the fee limit specified in this section for producers, the secretary may increase the inspection fee by an amount not to exceed one-half cent ($0.005) per hundredweight per annum.
The secretary shall annually fix the fees at an amount not to exceed actual reasonable program costs for administration of this chapter, and may adjust the per hundredweight fee whenever he or she finds that the cost of administering the provisions of this chapter can be defrayed from revenues derived from lower rates. Any money collected by the secretary pursuant to this section shall be paid into the Department of Food and Agriculture Fund.
The secretary shall charge a dairy farm all actual direct costs for initial and any followup dairy farm inspections for a facility out of compliance with the initial inspection. However, in no event shall the fee for an initial inspection exceed the limitation established in subdivisions (a) and (b).
The secretary shall establish plan review fees for sanitary design and construction review activities relating to dairy farms pursuant to Chapter 5 (commencing with Section 33451).
The secretary shall fix the inspection fees for each person, as provided for in Section 33291, not to exceed actual directly related costs for inspection. The basis for fees established for each person specified in Section 33291 shall not include any costs for inspection functions performed by the state for milk products other than market milk products that are the same as, or substantially similar to, inspection functions performed by the United States Department of Agriculture or any other federal or state agency. Costs for inspection shall be determined from time records and audit procedures set forth in written findings pursuant to Section 33296.
Any person subject to inspection fees provided for in Section 33291 may file with the secretary a written protest as to the reasonableness of any inspection fee that is levied and collected from those persons.
The secretary shall, after 30 days’ notice, hold a hearing on the protest and upon completion of the hearing, the secretary shall make and maintain written findings as to whether or not the fee is reasonable.
The secretary shall establish plan review fees for sanitary design and construction review activities relating to milk product plants and frozen milk product plants pursuant to Chapter 6 (commencing with Section 33701). The fees shall not exceed the actual direct costs required to perform sanitary design and construction plan checks. Any money collected by the secretary pursuant to this section shall be paid into the Department of Food and Agriculture Fund.
ARTICLE 10. Inspection of Dairy Farms Producing Manufacturing Milk [33321. - 33322.]
The director may authorize the inspection of dairy farms producing manufacturing milk.
The inspection of dairy farms producing manufacturing milk in an area to which an approved milk inspection service has been designated and assigned under the provisions of Article 4 (commencing with Section 33141) of this chapter shall be conducted by such approved milk inspection service. The inspection of dairy farms producing manufacturing milk in an established milk inspection area shall be conducted by the director.
ARTICLE 11. Violations [33351. - 33351.]
It is unlawful for any person to do any of the following:
Prevent, interfere with, or attempt to nullify in any way the work of any duly authorized representative of the department or of an approved milk inspection service in the enforcement of any provision of this division.
Interfere with or prevent any such representative from examining or auditing any records or books in the conduct of his or her official duty. The records that are required to be made available include, but are not limited to, raw milk products purchased or received, daily production and manufacturing records, and all sales and distribution records maintained by the licensed milk products plant.
Prevent or interfere with any such representative if he or she deems it advisable to secure samples of milk or any product of milk, product resembling milk products, imitation butter, or oleomargarine, or any substance which is designed to be used as a substitute for milk or any product of milk.
CHAPTER 5. Dairy Farms [33451. - 33581.]
ARTICLE 1. General Provisions [33451. - 33453.]
A dairy farm which is insanitary, deficient, or unsatisfactory is subject to the action provided in this chapter.
A dairy cow farm that was marketing market milk, including milk that meets the definition of restricted use market milk, on August 1, 2005, shall not market manufacturing milk. However, annually on January 1 such a dairy may elect to market manufacturing milk for a 12-month period. This provision applies to a dairy cow farm that was marketing manufacturing milk on August 1, 2005, that subsequently obtains a market milk grade A permit, but does not apply if the facility is sold or leased to a new operator. A dairy cow farm that begins operation on or after January 1, 2006, shall not market manufacturing milk except as provided in this section.
This section does not apply to dairy goat farms.
This chapter does not prohibit the immediate restricted use or exclusion from the market or the immediate condemnation by the secretary or an approved milk inspection service of any milk or cream that is contaminated or that is produced in a dairy barn or held in a milk house which is in such an insanitary condition that the milk or cream will be contaminated by direct contact with filth.
ARTICLE 2. New Construction or Repairs [33481. - 33487.]
The secretary shall establish regulations for the construction of sanitary milk barns and milk houses which are used in the production of market milk.
The regulations, plans, and specifications may be varied to suit the climatic and other differences in the various sections of the state. If regulations, plans, and specifications have been adopted or established by the director, they are the standard building requirements of all market milk dairy farms which are operating in the same geographical area of the state.
Minimum construction standards for new market milk dairy farms and extensive repairs to existing market milk dairy farms shall not be less than those which are established by the director pursuant to the authority which is conferred upon him by this article.
Any dairy farm building heretofore or hereafter constructed in accordance with the regulations, plans, and specifications heretofore or hereafter adopted by the director is not, however, required to be rebuilt to conform to any future change in the regulations, plans, or specifications.
No authority is conferred by this article upon the director or any approved milk inspection service to require the rebuilding of any existing dairy farm building unless the owner of the building is making repairs to it to the extent of at least 75 percent of the value of such building.
All existing structures which are used in the production of market milk shall be kept in repair in accordance with the sanitary requirements and standards which are established by this division.
No environmental impact report may be required by any state agency for any activity of a dairy farm, including adoption of waste discharge requirements pursuant to Division 7 (commencing with Section 13000) of the Water Code, under all of the following circumstances:
When the proposed dairy will be constructed and operated in accordance with the minimum standards established under this chapter.
Where the applicable local public agencies have completed all necessary reviews and approvals, including the provisions of Division 13 (commencing with Section 21000) of the Public Resources Code, where applicable.
Where a permit for construction has been issued by the appropriate local agency or agencies, and construction undertaken.
This section shall not apply to any dairy that received a permit, and undertook construction, prior to the effective date of the legislation enacting this section.
ARTICLE 3. Dairy Farm Sanitation [33511. - 33530.]
If any provision of this article is violated by any dairy farm, the dairy farm is insanitary, deficient, and unsatisfactory.
An open cesspool, pigpen, stagnant water, accumulation of manure or other filth shall not be permitted within 100 feet of the milk house or room, or within 50 feet of any milking barn, stanchions, or other place where milking is done.
Human excreta or other human wastes shall be properly disposed of by the use of flush toilets and septic tanks, approved pits, or chemical toilets. Such toilets shall be conveniently located and properly constructed, operated, and maintained, so that the waste is inaccessible to flies and does not pollute the surface soil or contaminate any water supply. No approved pit or chemical toilet, however, shall be permitted within 100 feet of the milk house or room or within 50 feet of any milking barn, stanchions, or other place where milking is done.
The buildings, yards, or enclosures shall not be filthy or insanitary, nor shall any part of such yards or enclosures, except pastures, be made the depositories of manure in heaps or otherwise, where it is allowed to ferment and decay.
The water supply for the milk house or room and dairy barn shall be properly located, constructed, and operated, easily accessible, adequate, protected against contamination, and of safe and sanitary quality. The bacterial quality shall conform to the standards of the State Board of Health for public supplies of drinking water.
The water supply for drinking by livestock shall not be stagnant, polluted with manure, urine drainage, decaying vegetable or animal matter, or pathogenic bacteria of any source.
No person who is connected with or employed on a dairy farm and liable to come in contact with the milk or cream of the dairy farm or the dairy farm operations shall be afflicted with any communicable disease or in a condition to disseminate the germs of any communicable disease.
A suitable milkhouse or room, which is properly screened to exclude flies or insects shall be provided and maintained for the separating, cooling, mixing, canning, and keeping, or otherwise caring for, the milk and cream. The milkhouse or room shall contain a two-compartment wash sink. The milkhouse or room shall not be used for any other purpose. It shall not be located in, or be a part of, any building in which fowls or animals, except milking cows, are housed, or be a part of any room where milking cows are held, or a part of, or communicate with, any room or place which is used by any person for sleeping or living accommodations.
The pails, cans, bottles, or other containers for milk or its products, or the strainers, coolers or other utensils, appliances, apparatus, or equipment which come in contact with the milk or its products shall be thoroughly washed and afterwards sterilized each time they are used by one of the following methods:
Exposure to water vapor at a temperature of not less than 170 degrees Fahrenheit for a period of at least 15 minutes or at a temperature of not less than 200 degrees Fahrenheit for a period of at least five minutes in a steam cabinet equipped with an indicating thermometer which is located in the coldest zone.
Exposure to an enclosed jet of steam for not less than one minute.
Complete immersion in hot water at a temperature of not less than 170 degrees Fahrenheit for a period of at least five minutes.
Exposure to a flow of hot water of a temperature of not less than 170 degrees Fahrenheit, as determined at an outlet, for a period of at least five minutes.
Exposure to hot air at a temperature of not less than 180 degrees Fahrenheit for a period of at least 20 minutes in an oven or hot air cabinet which is equipped with an indicating thermometer located in the coldest zone.
A chemical or other sterilization process which has been approved by the director and which is used in the manner which is established by regulation of the director.
Multiuse containers, equipment and utensils used in the handling, storage and transportation of milk shall be made of smooth, nonabsorbent, corrosion-resistant, nontoxic materials and shall be so constructed as to be easily cleanable. All containers, equipment, and utensils shall be in good repair. All milk pails used for handmilking and stripping shall be seamless and of the hooded type having an opening not exceeding one-third of the area of an open pail of the same size. All can lids shall cover the pouring lip so as to protect such lip from contamination.
The containers, appliances, or equipment, after sterilization, shall be adequately dried and protected from flies, dust, and other contamination.
No container, utensil, appliance, or equipment shall be used for any purpose except the handling of milk or products of milk.
The udders, flanks, hind legs, and tails of cows or goats shall be reasonably clean during milking.
The milk or cream shall be protected from contamination by dust and flies.
The person or wearing apparel of the dairyman, his employees, or other persons who handle the milk or its products and containers or equipment of the milk or its products shall not be soiled and shall be washed with reasonable frequency.
The hands of milkers shall be clean and dry during the entire period of milking.
The milk or cream shall be cooled as provided in Section 35783 and so maintained until delivery to a milk products plant.
The interior of the milking barn or milk house or room shall be kept clean and free from accumulated dust and cobwebs.
The walls of the milking barn shall not become soiled with manure, urine, or other filth.
The feed shall not be spoiled or otherwise unfit for feeding cows or goats and the production of milk.
ARTICLE 4. Violations [33551. - 33552.]
For any violation of this chapter a dairy farm with a market milk (grade A) permit shall be placed on restricted use or the milk or cream from it shall be excluded from the market. No such dairy farm, however, shall be placed on restricted use or the milk or cream from it excluded from the market, unless the exclusion is made pursuant to Section 33453, for a violation of this chapter, which, upon written notice from a qualified inspector, can be corrected and is corrected within 72 hours of the issuance of the notice.
The notice shall be served personally on the owner or operator of the dairy farm. A copy of it shall be immediately delivered or mailed to the distributors that purchase the milk or cream produced on the dairy farm.
No notice for a subsequent violation of any provision of this chapter, for which a notice, as herein provided, has been issued is required if such subsequent violation occurs during the three-month period following issuance of the original notice.
ARTICLE 5. Reinstatement [33581. - 33581.]
An application for reinstatement of a dairy farm which has been placed on restricted use or the milk of which has been excluded from the market, pursuant to this chapter, shall be acted upon by the secretary or the approved milk inspection service that has jurisdiction, within three days after the receipt of the application by the secretary or approved milk inspection service.
CHAPTER 6. Milk Products Plants [33701. - 33782.]
ARTICLE 1. General Provisions [33701. - 33705.]
It is unlawful for any person to operate a milk products plant unless such plant scores a minimum of 80 percent on the official scorecard for milk products plants which is established by regulation of the director. None of the provisions for scoring as set forth herein shall be applied to a dairy farm.
The provisions of Sections 33701, 33762, 33763, 33764, and 33765 do not apply to any milk products plant, its utensils, apparatus, and equipment which are used for the processing, manufacturing, handling, and storing of milk, or any products of milk if such milk products plant and its equipment are devoted exclusively to the preparation of products for animal and poultry feeds.
Sections 33701, 33731, 33732, 33733, 33734, 33767, 33768, 33770, 33771, 33776, and 34593 do not apply to the manufacture of ice cream that is manufactured from ice cream mix, to frozen dairy dessert that is manufactured from frozen dairy dessert mix, to frozen dessert that is manufactured from frozen dessert mix, to frozen yogurt that is manufactured from frozen yogurt mix, or to nondairy frozen dessert that is manufactured from nondairy frozen dessert mix, if those products are manufactured in a freezing device from which those products are served directly in a semifrozen state, without packaging of any type, for consumption on the premises in or from rooms where food is served to the public.
Except for nondairy frozen dessert mix, all mixes shall be secured from a licensed manufacturer of milk products.
Ice cream mix, frozen yogurt mix, frozen dairy dessert mix, frozen dessert mix, and nondairy frozen dessert mix shall be manufactured into a semifrozen state without adulteration and freezing device salvage shall not be reused as a mix.
Nondairy frozen dessert mix shall be obtained from manufacturers licensed pursuant to Sections 38931 and 38934. Any dry or condensed mix to be reconstituted into freezable form shall be reconstituted on the premises in containers or equipment that meet the requirements of Sections 33763, 33764, 33765, and 33766. Any water used for reconstitution shall be treated in a manner to ensure a quality equal to potable pasteurized water. Upon reconstitution, the product shall be poured directly into the freezing unit or refrigerated at a temperature not to exceed 45 degrees Fahrenheit, and so maintained until frozen, or both.
Where any retail establishment manufactures two or more of the products provided for under this section, each of those products shall be processed in a separate freezing device, and that freezing device shall be clearly identified as to the product being manufactured therein.
The secretary may, by agreement with any approved milk inspection service, authorize the service to inspect and enforce requirements of this code applicable to the establishments covered by this section. Any agreement shall provide that the approved inspection service shall collect the applicable license fee for those establishments as provided in Sections 35221 and 38933. The fees collected shall be retained by the approved service to cover its cost of enforcement, but 15 percent of the fees collected shall be remitted to the secretary to cover the cost of administration.
“Frozen dairy dessert” is the food prepared by freezing while stirring a pasteurized mix containing milk or ingredients, derived from milk, or both, and which may contain other optional safe and suitable ingredients. Frozen dairy desserts contain less than six percent, by weight, of nonfat milk solids, exclusive of any caseinates, and less than 75,000 bacteria per gram.
Frozen desserts, not subject to a standard of identity prescribed by Title 21 of the Code of Federal Regulations, may be manufactured or sold, or both, if they are in compliance with all applicable health, safety, and labeling requirements, and if their labels bear a statement of identity approved by the secretary.
Notwithstanding any other provisions of this division, any wholesome agricultural food product which does not affect the flavor or quality of milk products may be manufactured in any milk products plant subject to conditions which are prescribed by the director, and upon obtaining a special permit which is issued by the director after proper investigation.
ARTICLE 2. New Construction and Repairs [33731. - 33734.]
No new milk products plant shall be constructed nor shall extensive repairs be made to any existing milk products plant unless plans or specifications which show in detail the nature of the construction or alteration have been submitted to the director and unless the plans and specifications have received the director’s approval in writing.
Except as otherwise provided in Section 33733, minimum construction standards for new milk products plants shall include a separate room for each of the following operations:
Receiving and weighing of milk or cream, and washing and sterilizing of containers in which milk or cream is received.
Pasteurization, processing, cooling, and manufacturing.
Washing and sterilizing bottles or cans which are used in the delivery of milk or cream to the wholesale or retail trade.
Bacteriological and chemical analyses.
Adequate and efficient cold storage room or rooms mechanically equipped and operated.
Boiler, compressor, and other machinery.
Storing of supplies.
Toilets, lavatories, and lockers.
A separate room is required for conducting each of the operations which is listed in Section 33732, except that, if any of the functions which are specified in subdivisions (a) to (g), inclusive, of that section are not performed at a milk products plant, there need not be a separate room provided for such function.
Whenever and wherever the functions which are specified in Section 33732 are performed, such performance shall be with equipment which is determined by the director to be stationary by nature and permanently located.
ARTICLE 3. Milk Products Plant Sanitation [33761. - 33782.]
If any provision of this article is violated by any milk products plant, the milk products plant is insanitary.
Milk or cream, or any product of milk or cream, shall not be received, by a milk products plant if such milk or cream, or product of milk or cream, comes within any of the following classes:
Is impure, tainted, unclean, adulterated, or unwholesome.
Has reached an advanced stage of fermentation.
Shows a state of putrefactive fermentation.
Contains foreign substances which are detrimental to the quality of the product manufactured from the milk or cream or the product of milk or cream.
The utensils and apparatus that come in contact with milk or its products shall be thoroughly washed and afterwards sterilized each time they are used by heating them to a temperature above 200 degrees Fahrenheit, or by a chemical or other sterilization process which has been approved by the director and which is used in the manner established by regulation of the director.
The cans or other containers in which the milk or milk products are received, transported, or delivered shall be thoroughly washed, sterilized, and dried after emptying and before being sent out to be used again.
No container, utensil, apparatus, or equipment, except as otherwise provided, shall be used for any purpose other than that of handling milk and the products of milk.
The inside surfaces of any equipment, apparatus, or container, which comes in contact with milk or its products, shall be smooth and readily cleanable and free of open seams, cracks, or crevices. All openings in covers of tanks, vats, separators or other equipment shall be protected by raised edges or otherwise to prevent the entrance of surface drainage. Every tank in which milk or a milk product is stored shall be equipped with an accurate thermometer. All surface coolers shall be equipped with condensate deflectors and tight-fitting shields.
Recirculated cold water which is used in coolers and exchangers shall be obtained from a safe source and protected from contamination. Any freezing point depressant shall be nontoxic. All bottling or packaging machine supply tanks and bowls shall have covers which are constructed to prevent any contamination from reaching the inside of the filler tank or bowl. A drip deflector shall be installed on each filler valve. All conveyors which deliver sterile containers to bottling or packaging facilities shall be afforded overhead protection from contamination. Pasteurized milk and any milk product shall be conducted from one piece of equipment to another only through sanitary piping.
The floor shall be constructed of concrete or other impervious material which is acceptable to the director. It shall be so constructed as to be watertight and so sloped that all drainage will flow to one or more points of drainage. The floors shall be readily cleanable.
Floor drains shall be provided which are properly trapped to exclude odors and connected to a sewer line that will convey refuse milk, water, and sewage away to a point at least 100 feet distant from the milk products plant.
No milk, its products, or any filth shall be allowed to accumulate, ferment, or decay upon the floor or walls.
No species of animal life other than man shall be permitted in any building which is used in connection with any milk products plant.
No building which is used in connection with any milk products plant shall be used for any purpose except the handling of milk and milk products, equipment, apparatus, or containers of milk or milk products.
The water supply shall be properly located and constructed so as to be easily accessible, adequately operated, and protected against contamination. The bacterial quality shall conform to standards of the State Board of Public Health for public supplies of drinking water.
A cesspool, privy vault, hog yard, slaughterhouse, manure, or any decaying vegetable or animal matter shall not be so located as to become a nuisance or to permit foul odors to reach such milk products plant.
All openings into any milk products plant shall be effectively protected against flies and insects and doors shall be self-closing.
There shall be sufficient light in each room equivalent to not less than one 50-watt electric light per 100 square feet of floor area, reasonably and efficiently distributed. All rooms shall be adequately ventilated.
Tight, sound, and cleanable walls and ceilings shall be provided. The walls shall be constructed of nonabsorbent material, acceptable to the director, sufficiently above the floor to take care of any splash and to prevent the flowing or seepage of water or other fluids underneath or between the wall and the floor or supporting members.
A suitable toilet, with self-closing door, and lavatory facilities, soap, and clean towels shall be provided for employees. A toilet shall not communicate directly with any room which is used for handling milk or its products or with any room which is used for the washing, sterilizing, and storage of containers and supplies.
The bodies or wearing apparel of persons who are employed or come in contact with any milk or its products shall be kept clean and shall be washed from time to time with reasonable frequency.
No person who is connected with, or employed in, a milk products plant and liable to come in contact with milk or milk products or the milk products plant operations, shall be afflicted with any communicable disease or in a condition to disseminate the germs of any communicable disease.
The director, in addition to the authority granted by this section and by Sections 33517, 35862, and 35892, shall require the physical examination and testing of any dairy farm workers or milk products plant employees when there is reasonable cause to believe a worker or employee could be infected with a milk-borne disease.
No equipment or apparatus shall be installed or maintained in such manner so as to prevent thorough and adequate cleaning of walls and floors.
A room in which cheese and cheese products are cut, wrapped, and packaged into individual consumer packages shall be maintained in accordance with the sanitary requirements of this chapter. However, foods which do not affect the flavor or quality of the cheese and cheese products and are not maintained in accordance with the sanitary requirements of this chapter may be handled in such a room.
All of the provisions of this chapter apply to any building or structure in which any product resembling a milk product is manufactured, processed, or compounded. However, food which does not affect the flavor or quality of the products and which is not maintained in accordance with the sanitary requirements of this chapter may be handled in the building or structure.
CHAPTER 8. Pasteurization [34001. - 34091.]
ARTICLE 1. Standards [34001. - 34008.]
Pasteurization of milk or a milk product is a process which consists of one of the following:
Uniformly heating milk or a milk product to a temperature of not less than 145 degrees Fahrenheit and of holding it at such temperature for at least 30 minutes, except a milk product which has a higher fat content than milk, or contains added sweeteners, or both, shall be heated to at least 150 degrees Fahrenheit and held at or above this temperature for at least 30 consecutive minutes.
Uniformly heating milk or a milk product to a temperature of at least 161 degrees Fahrenheit and holding it at such temperature for at least 15 seconds, except a milk product which has a higher fat content than milk, or contains added sweeteners, or both, shall be heated to at least 166 degrees Fahrenheit and held at or above this temperature for at least 15 consecutive seconds.
Each such type of heating shall be conducted in approved and properly operated equipment. The milk or milk product shall be immediately cooled to a temperature of not above 50 degrees Fahrenheit after the completion of either of such heatings.
Nothing contained in this chapter shall be construed as prohibiting any other process which has been demonstrated to be equally efficient and is approved by the director.
When the term “ultra-pasteurized” is used to describe any milk or milk product, it means that such milk or milk product has been thermally processed, either before or after packaging, in accordance with the ultra-pasteurization requirements of regulations established under the Federal Food, Drug and Cosmetic Act, so as to produce a product which has an extended shelf life under refrigerated conditions.
The installation and use of any ultra-pasteurization equipment shall be subject to the approval of the director.
If the process of ripening or starting is to be commenced immediately, each of the following shall be cooled to a degree no lower than necessary for such ripening or starting:
Cream which is pasteurized for use and which is used in the manufacture of butter.
Milk which is pasteurized for use and which is used in the manufacture of cheese.
In the process of producing cream from market milk which is to be used as market cream or for the standardization of market milk, such cream may be heated to a temperature of not to exceed 165 degrees Fahrenheit and immediately cooled to a temperature of 50 degrees Fahrenheit or less. Such heat treatment shall not prevent the subsequent pasteurization of such cream.
Pasteurized skim milk, which is derived from market milk and which is used for standardizing pasteurized market milk, may be repasteurized once.
Market cream which has not been packaged for distribution to consumers may be repasteurized once.
Every person that operates any place where milk is received and byproducts are distributed shall pasteurize any skim milk, whey, or other milk byproduct which is to be used for feeding purposes for farm animals before delivering it. Such pasteurization may be accomplished by heating the byproduct to a temperature of 145 degrees Fahrenheit and holding it at that temperature for not less than 30 minutes, or by heating it to 185 degrees Fahrenheit without holding.
Every person that uses any pasteurizing apparatus for the manufacture of soft fresh cheese varieties that are not cultured shall sample and test the pasteurized milk daily from each pasteurizer to determine the presence of phosphatase enzymes in a manner approved by the director. Records of the tests shall be made and kept on file for not less than one year after they are made. The records shall at all times be open to the inspection of the director and to all state, county, and municipal officers who are required to enforce laws and ordinances regarding milk products or the public health.
In the event of a positive finding pursuant to this section, the milk products plant operator shall immediately notify the department of the findings.
All market milk and market milk products, and all milk for manufacturing purposes and manufactured milk products, shall be pasteurized at the plant where processed and packaged unless otherwise provided in this division.
This section does not apply to any of the following:
Licensed milk products plants that are used exclusively for the preparation of ice cream, frozen yogurt, frozen dairy dessert, or frozen dessert that is manufactured on the premises from ice cream mix, frozen yogurt mix, frozen dairy dessert mix, or frozen dessert mix that is supplied by a licensed milk products plant.
Products sold through soft-serve establishments pursuant to Section 33704, including frozen yogurts and frozen dairy desserts.
Frozen and semifrozen products sold through establishments issued a limited frozen manufacturing permit pursuant to Section 35016.
Goat milk cheese produced at a licensed milk products plant, excluding cottage cheese, manufactured from curds, provided the curds were made only from goat milk that has been pasteurized, ultrapasteurized, or aseptically processed, as defined in Sections 34001, 34001.5, and 39701, respectively, at either of the following:
A licensed milk products plant.
A milk products plant that meets sanitation requirements substantially similar to those established by Article 3 (commencing with Section 33761) of Chapter 6, and that is registered as a food facility with the United States Food and Drug Administration in accordance with the federal Food, Drug, and Cosmetics Act (21 U.S.C. Sec. 350d).
The secretary may, by regulation, provide for additional exemptions from this section.
ARTICLE 2. Sanitation [34031. - 34032.]
Any apparatus which is used for the pasteurization of milk or any milk product shall be kept in strictly clean and sanitary condition.
Any vat, tank, or container which is used to store a milk byproduct shall be kept in a clean and sanitary condition.
ARTICLE 3. Thermometers and Temperature Records [34061. - 34065.]
Each vat, tank, or other receptacle in which milk or any milk product is pasteurized shall be equipped with a recording thermometer device to accurately record the temperature to which, and the length of time for which, the pasteurized product has been heated.
Each vat, tank, or other receptacle in which milk or any milk product is pasteurized shall also be equipped with an indicating thermometer.
Any recording thermometer device and any indicating thermometer which is used in pasteurization shall be of a type which is approved by, and its use is at all times subject to the approval of, the director.
Every person that uses any pasteurizing apparatus within the state shall date, preserve, and keep on file for not less than one year after they are made, all records which have been made by the recording thermometer. The records shall, at all times, be open to the inspection of the director, and all state, county, and municipal officers who are charged with the enforcement of the laws and ordinances respecting milk products or the public health.
Every person who uses any pasteurizing apparatus within the state shall compile and keep on file for not less than one year records relating to pasteurization equipment modifications, maintenance, and repairs. The records shall, at all times, be open to the inspection of the director and all state, county, and municipal officers who are charged with the enforcement of the laws and ordinances regarding milk products or the public health.
ARTICLE 4. Misrepresentation [34091. - 34091.]
It is unlawful for any person to sell any milk or product of milk as and for pasteurized milk or a product of pasteurized milk, or to use the word “pasteurized” or any of its derivatives in connection with the sale, designation, advertising, labeling, or billing of any milk or product of milk, unless the milk and all products of milk which are contained in the milk or the product of milk, or used in its manufacture, consist exclusively of milk, skim milk, or cream which has been pasteurized.
CHAPTER 9. Weighing, Measuring, Sampling, and Loading of Milk [34201. - 34353.]
ARTICLE 1. General Provisions [34201. - 34202.]
A person shall not do any of the following:
Fraudulently manipulate the measure, weight, or test which is used for determining the grade or quality of milk, cream or any fluid derivative of milk or cream.
Fraudulently manipulate the test which is used for determining the percentage of milk fat in milk, cream, or any fluid derivative of milk or cream.
Overread or underread any such test.
Take an unfair sample of milk, cream, or any fluid derivative of milk or cream on which the grade, quality, or amount of milk fat in it is to be determined.
Fraudulently manipulate any such sample, or the record of any measurement, weight, test, or combination of them.
No tolerance in weights, measures, percentages of milk fat, moisture, or any other measure or standard is permitted, except where specific provisions are made for such a tolerance.
ARTICLE 2. Basis for Payment [34231. - 34233.]
Payment for milk, cream, or any fluid derivative of milk or cream shall be made on the basis of weight or measure and percentage of the milk fat or the fluid skim milk components or both contained in it, as determined by samples taken from each farm tank or lot of the milk, cream, or fluid derivative of milk or cream. Market milk samples shall be analyzed on a daily basis or on the smallest lot basis as picked up at the farm.
Determination of the weight or measure and percentage of milk fat and fluid skim milk components shall be made through tests performed in testing facilities approved by the director.
By mutual agreement between producers and a distributor purchasing milk, cream or any fluid derivative of milk or cream from such producers, testing of such products for milk fat content or fluid skim milk components content may be made by the distributor, or by an independent testing facility, or by contract with the director or subject to his approval, with an approved milk inspection service. In the absence of mutual agreement, and upon written application by a majority of the market milk producers or manufacturing milk producers shipping to any milk products plant, or by the distributor operating such plant, the director shall, by procedures established by regulations, designate an employee of the department to perform such tests, or approve a contract with an approved milk inspection service, or in the alternative the director shall designate independent testing facilities to perform such tests. The right of petition and designation of independent testing of milk shall be separate for market milk producers and manufacturing milk producers.
The cost, for testing such milk, cream or any fluid derivative of milk or cream, for any milk inspector or any independent testing facility operated, designated, or approved by the director shall be borne equally by the producer and distributor so affected. Provision for such joint payment shall be set forth by contract between the parties concerned and the approved testing facility. The foregoing cost determinations shall not limit the services which may be performed by the milk inspector as set forth in the contract.
The provisions of subdivisions (c) and (d) shall not apply to the interplant sales or delivery of milk, cream or any fluid derivative of milk or cream to a distributor by a nonprofit cooperative association. Required tests of such products for either milk fat content or fluid skim milk components content or both may be made by the distributor, or the association, or by an independent testing facility, or by contract with the director or subject to his approval, with an approved milk inspection service.
In the event the testing requirements of subdivision (a) of this section impose hardship on a distributor by reason of the location of the processing plant of the distributor in an area where facilities normally used for daily testing are not readily available, the director may, within his discretion, and upon written application by the distributor, approve the exemption of the distributor from such daily testing requirements.
The director shall require, by regulations, testing of packaged fluid products to be performed by such methods as to provide results consistent with, and comparable to, the testing of the raw product.
If the director finds, after investigation by him, that facilities are not available for weighing and testing, upon request of the parties he may issue a written permit which authorizes the purchase and sale of milk, cream, or any fluid derivative of milk or cream upon a gallonage basis.
ARTICLE 3. Milk Tests [34261. - 34265.]
A permanent record in duplicate of every test of milk, cream, or any fluid derivative of milk or cream which is purchased, received, or sold on the basis of the amount of milk fat or the fluid skim milk components or both that is contained in it, shall be made by a licensed tester on a standard form which is in accordance with the specifications for such record which are adopted by, the department.
The director shall, by regulation, adopt methods and procedures for the testing, weighing, and measuring of milk components and for the recording and reporting of such testing.
Each test shall be legibly recorded with indelible pencil or ink in such a manner as to correctly identify the test obtained upon the milk, cream, or fluid derivative of milk or cream.
Each sheet or page shall be authenticated by the signature of the licensed tester. A duplicate record shall be deposited by the licensed tester immediately after completing the test on the day’s samples, in a box which is provided by the purchaser, receiver, or seller of milk, cream, or fluid derivative of milk or cream, as the case may be. The box shall be constructed, sealed, and maintained in accordance with the regulations of the director.
The original record of each test shall be immediately delivered to the purchaser, receiver, or seller of the milk, cream, or fluid derivative of milk or cream, and shall be retained by him for at least three months.
The licensed tester shall retain an unmodified sample of any milk, cream, or fluid derivative of milk or cream which is tested by him for a period of time which is specified in regulations adopted by the director after tests of milk or cream have been made. The purchaser, receiver, or seller of milk or cream or fluid derivative of milk or cream shall provide a suitable place where the samples which are retained by the tester may be kept. Such place shall be acceptable to the department.
ARTICLE 4. Testing, Weighing, Sampling, and Loading [34301. - 34304.]
The secretary shall supervise the weighing, measuring, sampling, bacteriological testing, and sanitary loading and unloading of bulk milk delivered to handlers.
Notwithstanding any other provision of this division, the secretary may, in order to effectuate the purposes of this article, assess all producers, producer-handlers, and handlers a fee which shall be used for the supervision of, and checking the corrections of, bacteriological tests, and the weighing, measuring, sampling, and sanitary loading and unloading of all bulk milk delivered to handlers.
For purposes of this article, the following definitions apply:
“Handler” means a person who, as owner, agent, broker, or intermediary, receives, purchases, or otherwise acquires ownership, possession, or control of milk in unprocessed or bulk form from a producer for the purpose of manufacturing, processing, selling, distributing, or other handling.
“Producer” means a person who operates a dairy farm.
“Producer-handler” means a person who is both a producer and a handler.
A handler, including a producer-handler, shall deduct an assessment from payments made to producers for milk, including the handler’s own production, of a sum not to exceed one-tenth of one cent ($0.001) per hundredweight of milk. The amount of the assessment deducted shall be paid to the secretary on or before the 45th day following the last day of the month during which the milk was received.
A handler that purchases or handles milk from producers, including the handler’s own production, if any, shall pay a fee not to exceed five-hundredths of one cent ($0.0005) per hundredweight of milk. The amount of the fee shall be paid to the secretary on or before the 45th day following the last day of the month in which the milk was received.
Notwithstanding the assessment and fee limits in subdivisions (a) and (b), the secretary may increase the amount of the assessment in subdivision (a) and the fee in subdivision (b) by an amount not to exceed one-hundredth of one cent ($0.0001) per hundredweight per annum.
The director shall annually fix the fees in Section 34302 in an amount not to exceed the actual directly related costs for the supervision and checking required by Section 34301. These costs shall be determined annually from time records and audit procedures set forth in written findings. The written findings shall be available to interested persons for examination.
The director may fix the rate of assessments or fees required by Section 34302 at lesser amounts and may adjust the rates of assessments or fees from time to time whenever he or she finds that the costs of administering this article can be defrayed from the revenues derived from lower rates. However, the rate of assessment deducted from the payments to producers for market milk, including the handler’s own production, and the rate of fees paid by handlers shall at all times be in the ratio of 2 to 1.
The amount of the fee shall be paid to the director on or before the 45th day following the last day of the month in which the market milk was received.
Any assessment or fee payable pursuant to this article is a debt of the person by whom the assessment or fee is payable and is due and payable to the director upon the date set forth in Section 34302. If the person does not pay the assessment or fee by the required date, the director may file a complaint against the person in a court of competent jurisdiction for the collection of the assessment or fee.
If any person does not pay to the director the assessments or fees provided in this article on or before the due date specified in Section 34302, the director may add to the unpaid assessments or fees an amount not exceeding 10 percent of the unpaid assessments or fees.
ARTICLE 6. Fees [34351. - 34353.]
Fees shall be paid by the owner to the department for glassware which is examined for compliance with the prescribed standards.
The director shall establish fees to recover the actual cost of examining Babcock test bottles, Babcock pipettes, and lactometers.
Except as provided in Section 34351, the department shall charge fees for examining glassware and apparatus which is used in methods of testing which are sufficient to cover the actual cost of such examination.
Any money which is received under this article shall be paid into the Department of Food and Agriculture Fund.
CHAPTER 10. Containers [34501. - 34681.]
ARTICLE 1. Definitions and General Provisions [34501. - 34505.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Association” includes nonstock corporations.
“Single service container” means a container which is used only once and is not refilled.
“Milk case” means a rigid, reusable container for packing and transporting or delivering cartons, bottles, jugs, or any other form of packaged milk or milk products. “Container,” as used in this chapter, includes a “milk case.”
This chapter applies to all brands which have been registered with the department.
ARTICLE 2. Brand Registration [34531. - 34537.]
Any person or association located in California that is engaged in receiving, producing, manufacturing, packing, canning, bottling, handling, or selling milk or any product of milk in containers, cabinets, or other dairy equipment which is marked or otherwise identified with the name of the person or association or with any fictitious or other name or word or with any mark or device whatsoever, and any association or corporation, the members or directors of which are so engaged, may, and as to milk cases shall, file with the department a description of the name or word, mark, or device which is so used, and an application for registration of it as a brand. The application shall be accompanied by a fee of ten dollars ($10) for each separate brand.
There shall be included as a part of each brand the words, “Registered in California” or the abbreviation “Reg. Cal.”
The applicant shall also cause such description to be printed once a week for three successive weeks in a newspaper of general circulation which is published in the locality in which the principal place of business of the applicant is situated.
The department may refuse to register a brand if it appears that the same or a similar brand has been previously registered by another person or association unless the prior registrant gives his written consent to the subsequent registration.
If it appears that two or more applicants have applied for the registration of the same or similar brands, the director may, after hearing, determine the right of prior ownership in such brand. When such right of prior ownership is determined, the director shall refuse to register, or shall cancel the registration of, any duplicate or similar brand.
Any certificate of registration which is granted expires on the 30th day of June of the fourth year after it was granted and may be renewed for four years by payment of a renewal fee of five dollars ($5). The renewal shall be made on forms which are supplied by the director.
If renewal of any certificate is not made within 60 days after the expiration of the certificate, such certificate becomes null and void.
ARTICLE 3. Branded Containers [34561. - 34568.]
Except as otherwise provided in this article, every person that finds or receives any container, cabinet, or other dairy equipment which is marked with a brand which is registered pursuant to this chapter shall, return it to the owner or his or her agent. If the finder is unable to locate the owner or his or her agent, he or she shall, notify the director in writing that he or she has in his or her possession the container, cabinet, or other dairy equipment and particularly describe in the notice the trademark or brand which is upon the container, cabinet, or other dairy equipment.
Any person that acquires any container, cabinet, or other dairy equipment which is marked with a brand that is registered pursuant to this chapter, by purchase or by other lawful means, and that has the written consent of the registrant of such brand to use it on the particular container, cabinet, or other dairy equipment which is acquired, or to use such brand on containers generally, shall so notify the department. He shall not thereafter be required again to file and publish the description but shall acquire as a part of such purchase all such benefit as the vendor had under this code as to the particular containers, cabinets, or other dairy equipment so acquired or as to containers generally, dependent on the form of such written consent.
Any person that purchases any container, cabinet, or other dairy equipment which is marked with a brand registered pursuant to this chapter shall submit to the director a copy of the bill of sale or other documentary evidence which supports such purchase.
An “unauthorized person” with respect to possession of containers (including milk cases), cabinets, or other dairy equipment marked with a brand that is registered pursuant to this chapter includes any person in possession of this equipment except the following:
The brand registrant or owner.
A person who, with the consent of the brand registrant or any other authorized person, has temporary possession of branded containers (including milk cases) as a result of the purchase of milk or milk products packaged and transported in the containers.
As to any containers (including milk cases), cabinets, or other dairy equipment marked with a brand registered pursuant to this chapter, the following acts are punishable under the provisions of Chapter 12.6 (commencing with Section 565) of Title 13 of Part 1 of the Penal Code:
If the owner of any container, cabinet, or other dairy equipment which is marked or branded, or any other person that is lawfully entitled to use the container, cabinet, or other dairy equipment, requires a deposit for security for its safekeeping and return, it does not constitute a sale, optional or otherwise, of the container, cabinet, or other dairy equipment.
Any distributor in possession of a milk case having another distributor’s registration shall notify the registered owner, and make the case available to the registered owner for pickup, upon receipt of payment for any case deposit which the distributor in possession may have paid for the case.
ARTICLE 4. Containers for Particular Products [34591. - 34596.]
Except as otherwise provided in this article, it is unlawful for any person to sell or otherwise dispose of any market milk, skim milk, flavored milk, flavored dairy drink, buttermilk, or cultured buttermilk to the retail trade, unless the product is contained in a standard milk bottle or in a single service container which has been mechanically filled and capped or sealed in a milkroom which is properly designed and equipped as approved by the director. The pouring lip of standard milk bottles used to package market milk and milk products sold at retail shall be covered at the time of capping or closure to at least its largest diameter by the cap or cover. A single service container shall meet the specifications of the United States Public Health Service Grade A Pasteurized Milk Ordinance Recommendations.
Market milk which is served by any school, hospital, hotel, boardinghouse, restaurant, soda fountain, lunch counter, or other places where food or drink is served to the public, shall be served in the individual service bottle or container which has been filled and capped or sealed in a milk room, properly designed and equipped as approved by the director, the cap or seal of which shall not be removed except in the presence of the consumer or patron. This section does not:
Apply to market cream or half-and-half.
Prohibit the serving of homogenized market milk from a milk dispensing device which has been approved for such use by the director pursuant to Section 34594.
Apply to any private boarding school which is licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code which is also a private full-time day school within the meaning of Section 48222 of the Education Code.
Apply to any fraternity, sorority, dormitory or eating club, the existence of which is authorized or approved by the board of trustees or other governing agency of a college or university.
Apply to any children’s center, day care program, or preschool program, as such terms are used in Chapter 2 (commencing with Section 8200) of Part 6 of the Education Code.
Market milk or the fluid derivative of market milk which is used in the preparation of milk shakes or other mixed milk drinks shall be dispensed or poured from standard milk bottles or single service containers which have been filled and sealed or capped in a milk products plant.
This section does not prohibit the use of homogenized market milk or flavored dairy drinks drawn from a milk dispensing device that is approved pursuant to Section 34594 in the preparation of milk shakes or other mixed milk drinks.
Homogenized market milk may be sold and served from and by the use of a milk-dispensing device which has been approved for such use by the director. Any such milk-dispensing device shall be installed and located in a place and manner which are acceptable to the local health authority.
Homogenized market milk, which is served from a milk-dispensing device that has been approved for that use by the director, shall be dispensed directly from the dispensing device into the glass or other container from which the customer drinks the milk. It shall be served in minimum quantities of eight ounces in each such glass or container, except that individual servings of less than eight ounces may be served with children’s or junior meals which are sold in a restaurant, as defined in Section 28522 of the Health and Safety Code.
The gift, sale, loan, or furnishing in any manner of any milk-dispensing device is subject to Article 4 (commencing with Section 61371) of Chapter 1 of, and Article 9 (commencing with Section 6204l) of Chapter 2 of, Part 3, Division 20 of this code.
ARTICLE 5. Sanitation [34621. - 34628.]
Every restaurant, school, hospital, soda fountain, or other place where food or drink is served to the public, which sells milk, cream, ice cream, ice milk, buttermilk, or any combination of them for consumption on the premises, upon emptying any container of such a product, which container is to be returned to the milk distributor or manufacturer, shall rinse and drain the container, unless it is a glass container.
Every container of milk, cream, or any product of milk or cream which is delivered to the consumer by any retailer or distributor and which is to be returned to such retailer or distributor shall be rinsed and drained before it is returned.
Every container, except a single service container, of any kind in which milk or any product of milk is kept, stored, transported, or delivered, shall be sound, smooth, free from rust or open seams, and at all times kept in a condition which shall permit thorough cleansing of all surfaces with which the milk or its products come in contact.
Any container, including any ice cream cabinet, which is commonly used or intended for the reception, storage, or delivery of milk, cream, or any product of milk or cream shall be used exclusively for the storage and use of milk and milk products. It shall not be used for any other purpose.
Any empty container which is delivered to any producer, manufacturer, retailer, or distributor for the reception of milk or any product of milk shall be kept in a clean, sanitary, and sterile condition. It shall not be used for any other purpose.
Every receptacle, except a single service container, which is used to contain market milk, skim milk, buttermilk, or cultured buttermilk for sale or disposal to the retail trade, shall be properly washed and sterilized on the premises where it is filled, in a separate room which is designed and equipped for such washing and sterilizing.
A single service container shall be made of sanitary material, in a sanitary manner, and shall be kept in a sanitary condition free from contamination until it is actually filled with milk, skim milk, buttermilk, or cultured buttermilk.
Market milk, skim milk, buttermilk, or cultured buttermilk for sale or disposal to the retail trade shall not be transferred from one receptacle to another upon any highway, any street or sidewalk, or upon any vehicle or in any place except a milk room as specified in Section 34591 or in a place where such product is served for consumption on the premises.
ARTICLE 6. Violations [34651. - 34655.]
It is unlawful for any person to use the words “Registered in California” or the abbreviation “Reg. Cal.” on any container, cabinet, or other equipment unless the brand which appears upon it is registered pursuant to this chapter.
It is unlawful for any person without the written consent which is provided for in Section 34562, except the registrant of the brand and the members of any association which is the registrant, to use or fill with milk or any product of milk, any container, cabinet, or other dairy equipment, which is marked or distinguished with a brand, of which a description has been filed and published.
It is unlawful for any person to do any of the following:
Erase, obliterate, cover up, or conceal any brand without first notifying the director and receiving his approval.
Sell, buy, give, take, or otherwise traffic in such containers, cabinets, or other dairy equipment, except as provided in Section 34562.
It is unlawful for any common carrier or private carrier for hire, except those which are engaged in transporting milk, cream, and containers of milk and cream to and from dairy farms, to receive or transport any empty container, cabinet, or other equipment which is marked with a brand registered pursuant to this chapter unless such carrier has in its possession a bill of lading or invoice which shows all of the following:
The name and address of the consignor.
The name and address of the consignee.
The number of containers, cabinets, or other equipment and the brand which appears upon them.
A consignee shall not accept or receive any empty container, cabinet, or other equipment which he is not authorized to use. Nothing herein shall be construed to derogate from any powers or authority of the Public Utilities Commission of this state.
ARTICLE 7. Condemnation [34681. - 34681.]
Any container which is found to have been used in violation of the requirements of this code shall be condemned and marked with the word “condemned” in any appropriate manner. Such a container shall not be used again in connection with the handling of milk or any product of milk for human consumption, until it has been cleaned or repaired in a manner which is acceptable to the director.
CHAPTER 11. Transportation [34801. - 34806.]
Every carrier of milk, cream, or any product of milk, whether a producer, gratuitous private carrier, private carrier for hire, or common carrier, shall maintain every conveyance which it uses in transporting milk and cream in a clean and sanitary condition.
Every conveyance, while transporting milk or cream or any clean empty container which is intended for milk or cream, and any shipping platform or premises where any such container is held while waiting shipment, shall either be enclosed or provided with a canvas covering or otherwise afforded protection from the direct rays of the sun, from warm air, dust, mud, rain, and other sources of contamination.
Milk, cream, or any product of milk or cream shall not be transported in connection with, or close to, any other commodity from which it may absorb any foreign flavor or which may contaminate it. Milk, cream, or any empty container which is used for milk or cream shall not be hauled in any vehicle which is used for hauling manure or garbage or in any other unclean conveyance.
Every milk or cream can or other shipping container for any product of milk shall be handled carefully and, while it contains milk, cream, or other product of milk, shall be kept right end up.
Nothing herein shall be construed to derogate from any powers or authority of the Public Utilities Commission of the state.
A carrier of milk, cream, or any product of milk, whether a gratuitous private carrier, private carrier for hire, or common carrier, shall not receive or transport any milk, cream, or product of milk after notification by the director or an approved milk inspection service that such product is unclean, polluted, tainted, unwholesome, stale, impure, or adulterated, or has been produced in violation of any provision of this code, except as provided for in Section 32764.
CHAPTER 12. Licenses, Records, and Reports [34951. - 35252.]
ARTICLE 1. Definitions [34951. - 34952.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Milk products plant license” means a license which is issued by the director pursuant to Section 35015 for a milk products plant.
ARTICLE 2. General Provisions [34981. - 34981.]
Every license which is issued pursuant to this chapter, while in force, shall be kept conspicuously displayed in the place of business of the party to whom it has been issued.
ARTICLE 3. Licensing of Milk Products Plants and Other Places of Business [35011. - 35019.]
A person shall not engage in any of the following businesses unless he has obtained a license from the director for each separate milk products plant or place of business:
Dealing in, receiving, manufacturing, freezing, or processing milk, or any product of milk.
Manufacturing, freezing, or processing imitation ice cream or imitation ice milk.
An application for a milk products plant license shall be made on a form which is prescribed by the director. It shall state all of the following:
The name and address of the applicant.
The address of the milk products plant.
Such other information as to the nature of the applicant’s business as the director may require.
Each application shall be accompanied by a fee in an amount which is established for the particular license by Section 35221.
Upon receipt of an application for a milk products plant license, the director shall investigate the equipment and the sanitary condition of the milk products plant for which the application for a license has been made.
If the condition of the milk products plant is found to be satisfactory, a milk products plant license shall be issued by the director to the applicant.
Except as provided in subdivision (b), any hotel, restaurant, food facility, boardinghouse, hospital, or other concern or agency that manufactures a product of milk for the use of, or purchase by, any patron, guest, patient, or employee shall obtain a milk products plant license.
A hotel, restaurant, food facility, boardinghouse, hospital, or other concern or agency that manufactures hard frozen or semifrozen dairy products, or hard frozen or semifrozen nondairy desserts, for the use of, or purchase by, any patron, guest, patient, or employee shall obtain a limited frozen manufacturing permit from the secretary.
The permit may be issued only after the secretary determines that the facility is suitable for manufacturing those products.
A permit issued pursuant to this subdivision may be renewed annually, if the facility is found by the secretary, based on an onsite evaluation, to be in compliance with the conditions specified in subdivision (c).
A hotel, restaurant, food facility, boardinghouse, hospital, or other concern or agency issued a limited frozen manufacturing permit pursuant to this section shall meet all of the following standards:
The hotel, restaurant, boardinghouse, hospital, or other concern or agency shall not manufacture more than 7,500 gallons of hard frozen or semifrozen dairy products and hard frozen and semifrozen nondairy desserts during any year. Records documenting the volume of production of these hard frozen and semifrozen products manufactured during the preceding 12-month period shall be maintained at a facility issued a limited frozen manufacturing permit and shall be available for inspection by the secretary.
Hard frozen dairy products or nondairy frozen desserts manufactured at a facility issued a limited frozen manufacturing permit may be packaged exclusively for sale on the premises to patrons and guests. Packaging of frozen or semifrozen products for purposes of wholesale, resale, or for sale off the premises of the facility is prohibited. All packaged products shall be labeled with the manufacturer’s name, address, and limited frozen manufacturing permit number and comply with all applicable food labeling provisions of state and federal law.
This article does not apply to any of the following:
Any private home that is manufacturing for its own use.
Any retailer that is dealing in finished products which are received from a distributor or producer in final form.
Any producer that is selling milk and cream exclusively at wholesale for manufacturing, freezing, or processing milk and milk products.
Any producer whose business consists exclusively of producing and distributing raw market milk produced by such producer.
Every milk products plant license expires at the end of each calendar year, but shall remain in force during the month of January of the next succeeding year or such part of the month as may be necessary for the renewal of such license by the director.
Any license may be renewed each successive year, if the plant for which a previous license was issued and the business of such plant has been conducted in accordance with the requirements of this division during the year next preceeding that for which the renewal is requested. The correct amount of the fee for the renewal of the license shall be forwarded with the application for renewal.
ARTICLE 4. Diabetic and Dietetic Frozen Milk Products Licenses [35041. - 35042.]
A person shall not engage in the business of manufacturing any diabetic or dietetic frozen milk product or mix unless, in addition to a milk products license, such person has obtained and holds a diabetic or dietetic frozen milk products license from the director.
Each application for a license to engage in the business of manufacturing any diabetic or dietetic frozen milk product or mix shall be accompanied by a statement which describes the method and manner by which the product is made.
ARTICLE 5. Modified Milk, Modified UHT Milk, and Modified UHT Cream Licenses [35071. - 35072.]
A person shall not engage in the business of manufacturing, preparing, or processing modified UHT milk, modified UHT cream or modified milk unless, in addition to the milk products plant license, the person has obtained and holds a modified milk license, modified UHT milk license, or a modified UHT cream license, as the case may be, from the director.
Separate licenses are required for modified milk, modified UHT milk, and modified UHT cream.
Upon receipt of an application for a modified milk license, modified UHT milk license, or modified UHT cream license, the director shall investigate the equipment and sanitary conditions of the place where the modified milk, modified UHT milk, or modified UHT cream is to be manufactured or prepared, and provide the applicant with a copy of the laws of the state which pertain to the product. If the condition of the place is found to be satisfactory, and the special fee for the license which is prescribed by Section 35225 is paid by the applicant, the license shall be issued. A modified milk license, modified UHT milk license, or modified UHT cream license shall normally expire on the 31st day of December of each year.
ARTICLE 6. Oleomargarine and Imitation Ice Cream Licenses [35101. - 35103.]
It is unlawful for any person, unless he has a license to do so, to engage in the business of manufacturing, freezing, or processing any of the following:
Oleomargarine, or margarine, colored oleomargarine or colored margarine, renovated butter, or a substitute for butter.
Imitation ice cream or imitation ice milk.
A person shall first apply each year to the director for a license to engage in any business or occupation for which a license is required by Section 35101. Upon payment of the license fee which is prescribed in Section 35226, the director shall issue a license to engage in the business for which the license is issued. Separate licenses are required for each such business or occupation.
Every license which is issued pursuant to Section 35102 expires on June 30th of each year, and may be issued in periods of one year.
ARTICLE 7. Butter Permits and Licenses [35131. - 35137.]
A person shall not engage in the business of cutting and wrapping butter unless such person, in addition to the milk products plant license, has a butter cutting and wrapping permit.
Every person that distributes butter which is received in packaged form direct from out-of-state points shall obtain a butter distributor’s permit from the director for each plant or place of business.
Every butter cutting and wrapping permit and butter distributor’s permit expires at the end of each calendar year. A permit may be renewed each successive year, if the plant for which the previous permit was issued and the business has been conducted in accordance with the requirements of this division during the year next preceding that for which renewal is requested.
Every person who is in charge of cutting, wrapping, packaging, or distributing butter, or any supervisor of any such person who is responsible for the grading of butter, shall obtain and hold a butter grader’s license.
Application for such license shall be made to the director who shall examine each applicant as to his qualifications and knowledge of butter grades and of the law applicable to him. The fee for a butter grader’s license shall accompany the application.
Every butter grader’s license expires on the 31st day of December. It may be renewed by payment of the renewal fee for a butter grader’s license.
The licensing provisions of this article also apply to butter which is received in package form from out-of-state points.
ARTICLE 8. Licensing of Testers, Samplers and Weighers, Technicians, and Pasteurizers [35161. - 35171.]
Every person who tests milk, cream, or any fluid derivative of milk or cream, which is purchased, received, or sold on the basis of milk fat which is contained in it, shall hold a tester’s license.
Methods or processes of testing shall be approved by the director. A separate license is required for each of the methods or processes of testing.
Every person, except a licensed tester, who takes any sample of milk, cream, or any fluid derivative of milk or cream, which is purchased, received, or sold on the basis of milk fat which is contained in it, on which sample tests are to be made as a basis of payment, and every person who weighs or measures milk, cream, or any fluid derivative of milk or cream, shall hold a sampler’s and weigher’s license if the weight or measure is to be used as the basis of payment.
If one person does both sampling and weighing or measuring, only one license is required.
Any person who takes any sample of milk, cream, or any fluid derivative of milk or cream for testing shall hold the sample in an unchanged condition until it is delivered to a licensed tester.
Every person who makes any bacteriological determination of milk or cream which is to be used as a basis of payment or determining value shall hold a technician’s license.
Every person who operates any equipment wherein milk or any product of milk is pasteurized shall hold a pasteurizer’s license. The pasteurizer’s licenses shall be known as general and limited licenses. The general license shall apply to pasteurization by all of the approved methods or processes of pasteurization, and the limited license shall apply only to the pasteurization by the process or method known as the holding or vat method.
Every person who tests any milk or cream purchased, received, or sold on the basis of the nonfat milk solids contained in it shall hold a nonfat milk solids tester’s license.
An application for a tester's, sampler’s and weigher's, technician's, pasteurizer's, or nonfat milk solids tester’s license shall be made to the director. The director shall examine each applicant for the license that is applied for as to the applicant’s qualifications and knowledge of the law applicable to him. Each application shall be accompanied by the fee which is prescribed for the license by Section 35231.
Every license that is issued pursuant to Article 7 (commencing with Section 35131) and this article expires two years from the date of issue. License renewal fees must be received within 90 days of the license expiration date for renewals to be issued. Each licensee required to be licensed pursuant to Section 35163 must, within six months prior to the expiration of the license, successfully complete a refresher course and proficiency evaluation acceptable to the secretary. Licenses may then be renewed for two-year periods upon payment of the fee which is prescribed by Section 35231.
ARTICLE 9. Reports and Records [35191. - 35196.]
Every person that manufactures or imports any oleomargarine or margarine, or any substance designed as a substitute for butter, or that resembles butter, which is not made wholly from pure milk or cream, or any product resembling a milk product, shall keep a record, which gives the quantity that is sold or purchased, the name and location of the seller and purchaser, the date, and the place to which it was shipped or delivered.
All records which are required to be kept by Sections 35191 and 35192 shall, at all times during business hours, be open to the inspection of the director, any officer of any city or county board of health, and any peace officer of any city or county of the state. A failure to keep any of the records which are required to be kept or a failure to permit any authorized inspection of such records is a misdemeanor.
Every manufacturer of oleomargarine shall submit to the director at the end of each month a report of the amount of oleomargarine which such person sold or distributed.
Every person that holds a butter cutting and wrapping permit or a butter distributor’s permit shall, on or before the fifth day of those months in which a fee is due pursuant to Section 35227 or 35228, file with the director a statement which shows the exact number of pounds of butter cut, wrapped, packaged, or distributed by such person during the preceding three months.
ARTICLE 10. Fees [35221. - 35231.]
Every person that is engaged in the business of dealing in, receiving, manufacturing, freezing, or processing ice cream, ice milk, sherbet, or any similar frozen product, of manufacturing, freezing, or processing imitation ice cream, imitation ice milk, or any similar frozen product, or of processing any other dairy product for which a license is required, shall pay the following fees:
For a license for all frozen milk products and all imitation frozen milk products, one hundred dollars ($100) for the calendar year for which the license is issued. The fee for the renewal of this license is one hundred dollars ($100), plus one dollar ($1) for each additional 10,000 gallons or fraction of 10,000 gallons over and above 20,000 gallons that were manufactured during the preceding year, ending December 31.
For a semifrozen (soft-serve) milk products plant license issued to persons making application under Section 33704, three hundred twenty-five dollars ($325) for the calendar year for which the semifrozen (soft-serve) milk products plant license is issued. The fee for the renewal of this license is three hundred twenty-five dollars ($325).
For a limited frozen manufacturing permit issued to a hotel, restaurant, food facility, boardinghouse, hospital, or other concern or agency pursuant to Section 35016, six hundred dollars ($600) for the initial permit. The fee for the annual renewal of this permit shall be six hundred dollars ($600).
For a person, except a hospital or sanitarium, that is engaged in the business of manufacturing any diabetic or dietetic frozen milk product or mix, one hundred dollars ($100) for the calendar year for which a diabetic or dietetic frozen milk products license is issued. The fee for the renewal of this license is one hundred dollars ($100).
For any other product for which a license is required, one hundred dollars ($100) for the calendar year for which the license is issued. The fee for the renewal of this license is one hundred dollars ($100), plus one dollar ($1) for each additional 10,000 pounds or fraction of 10,000 pounds over and above the first 100,000 pounds of milk fat that was purchased or received during the preceding year, ending December 31.
The license and permit fees required by this section shall be prorated on a quarterly basis for any licensee or permittee that commences operations after the first quarter in any calendar year, regardless of whether or not the milk products plant was licensed or permitted during the preceding calendar year.
Notwithstanding the license and permit fees specified in this section, the secretary may increase the fees by an amount no more than 3 percent per annum, not to exceed the reasonable costs of services provided.
The special fee for a modified milk license, modified UHT milk license, or modified UHT cream license is one hundred dollars ($100).
The fee for issuing the license required by Section 35101 for any manufacturer or processor within this state is one hundred dollars ($100) annually.
Every permittee that is engaging in the business of cutting and wrapping butter shall pay a fee of one dollar ($1), plus twenty cents ($0.20) for each 1,000 pounds, or part of 1,000 pounds, over and above the first 5,000 pounds of butter which such person cut and wrapped during each of the three-month periods ending February 28th, May 31st, August 31st, and November 30th. Such fees shall be paid to the director during the first week of March, June, September, and December, respectively.
Every person that has a permit to engage in the business of distributing butter shall pay a fee of one dollar ($1), plus twenty cents ($0.20) for each 1,000 pounds, or part of 1,000 pounds, over and above the first 5,000 pounds of butter which such person distributed during each of the three-month periods ending February 28th, May 31st, August 31st, and November 30th. Such fees shall be paid to the director during the first week of March, June, September, and December, respectively.
The initial and renewal fees for a tester’s, sampler’s and weigher’s, technician’s, pasteurizer’s, and butter grader’s license are as follows:
For a tester’s license, including a nonfat milk solids tester, one hundred dollars ($100).
For a sampler’s and weigher’s license, one hundred dollars ($100).
For a limited sampler’s and weigher’s license, seventy-five dollars ($75).
For a technician’s license, one hundred dollars ($100).
For a pasteurizer’s license, one hundred dollars ($100).
For a butter grader’s license, one hundred dollars ($100).
ARTICLE 11. Disposition of Funds [35251. - 35252.]
The director, at least once each month, shall report to the Controller the total amount of any money which is collected under Section 35221. He or she shall, at the same time, pay into the State Treasury the entire amount of the receipts which shall be credited to the Department of Food and Agriculture Fund and expended as provided in Section 32704.
The director shall, at least once each month, report to the State Controller the total amount of any money which is collected for fees under Sections 35227 and 35228. He shall, at the same time, pay into the State Treasury the entire amount of such receipts which shall be credited to the Department of Agriculture Fund and expended in carrying out the provisions of this division relating to butter.
CHAPTER 13. Penalties [35281. - 35312.]
ARTICLE 1. Criminal Penalties [35281. - 35283.]
Any violation of any provision of this division, or the regulations for its enforcement, is a misdemeanor. Unless a different penalty is specifically prescribed, it is punishable by a fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000), or by imprisonment in the county jail not less than 10 days nor more than 90 days, or by both.
Offering physical resistance or bodily attack on authorized representatives of the department or of an approved milk inspection service, who are engaged in the proper conduct of their official duties, is a misdemeanor, punishable by imprisonment in the county jail for not less than 10 days, without the alternative of a fine in any case.
Notwithstanding Sections 35281 and 35282, any person who intentionally commits any of the following acts is guilty of a felony and, upon conviction, shall be punished by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by imprisonment of not less than six months nor more than one year, or by both the fine and imprisonment:
Processing without pasteurization any milk or milk product which is required by this division to be pasteurized.
Manufacturing or processing for resale of any milk or milk product in a milk products plant which is not licensed by the director pursuant to Chapter 12 (commencing with Section 34951).
Providing milk or milk products to any person for the manufacturing or processing for resale of any milk or milk product unless that person is licensed by the director pursuant to Chapter 12 (commencing with Section 34951).
ARTICLE 2. Civil Penalties [35311. - 35312.]
Except as otherwise provided in this section, a penalty of 25 percent or five dollars ($5), whichever is greater, shall be added to any portion of the fee for renewal of any license which is required by this division which is not paid by the last day of the month following that in which the preexisting license expired.
A penalty shall not accrue if the licensee operates only seasonally and he has not engaged in the activities for which the license is required between the time his preexisting license expired and the date of the renewal of his license.
To the amount of any fee, except a license fee, which is required by this division, that is not paid by the last day of the month following that in which due, there shall be added a penalty of 25 percent of the unpaid amount of such fee, or five dollars ($5), whichever is greater, for each month or fraction of a month until the entire fee and penalty are paid.
PART 2. MILK AND CREAM [35601. - 36331.]
CHAPTER 1. General Provisions [35601. - 35631.]
ARTICLE 1. Milk [35601. - 35603.]
Milk shall be produced from nonreacting tuberculin and brucellosis tested cows or goats and shall conform to the regulations adopted by the director.
Milk shall be obtained by the complete milking of healthy cows or goats which are properly fed and kept. Milk shall not be obtained or used for human consumption within 15 days prior to or 5 days after parturition.
Milk which has been produced or handled in an insanitary dairy farm or milk products plant or other insanitary place or which has been handled in an insanitary manner is unfit for human consumption.
ARTICLE 2. Cream [35631. - 35631.]
Cream shall be fresh and clean. It shall contain not less than 18 percent of milk fat.
CHAPTER 2. Market Milk and Cream [35751. - 36123.]
ARTICLE 1. General Provisions [35751. - 35757.]
This division does not prohibit the addition of vitamins and minerals to market milk or the sale of market milk to which any vitamins and minerals have been added if such milk is labeled to show the addition of the vitamins and minerals.
A statement of the method and manner of adding vitamins and minerals shall be filed with and approved by the director, and, when offered for sale, such vitamin and mineral milk shall not be of a standard which is below the legal requirements of market milk. When added, vitamin D shall be present in such quantity that each quart of the milk contains 400 International Units thereof within limits of good manufacturing practice. When added, vitamin A shall be present in such quantity that each quart of the milk contains not less than 2,000 International Units thereof within limits of good manufacturing practice.
The requirements of this section shall apply to all fluid market milk products.
This division does not prohibit the freezing and holding in cold storage of market cream or concentrated market cream, its subsequent standardization with market milk or skim milk produced from market milk, and its sale as market cream if the standardized product otherwise conforms to all the standards and requirements in this division for market cream. Payment procedure for market cream so frozen or stored shall be pursuant to Article 22 (commencing with Section 62441), Chapter 2, Part 3, Division 21 of this code.
This division does not prohibit the freezing and holding in cold storage of market goat milk and its subsequent sale as market milk if at the time of sale it meets all the standards and requirements which are specified in this division for market milk.
This division does not prohibit the sterilization of market goat milk by subjecting it to a temperature which is high enough to sterilize it, holding it in storage, and subsequently selling it as market milk if at the time of sale the market goat milk meets all standards and requirements which are specified in this division for market milk.
It is unlawful for any person to sell any market milk other than graded milk as provided in this division in any city or county or any combination of cities and counties in which a milk inspection service has been established, either by or with the approval of the director.
This division, and the regulations of the director are not a limitation on the power of a municipality or county, by ordinance or regulation, to establish compulsory pasteurization of market milk or reasonable higher standards for milk fat and solids-not-fat than those which are established in this division, but such standards shall apply only to market milk after standardization by a milk distributor.
The secretary, in compliance with Section 407 of this code and Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, may adopt regulations pertaining to temperature requirements for market milk delivered to consumers. Notwithstanding any other provision of this chapter, these regulations may establish temperature requirements for market milk delivered to consumers that differ from any or all requirements provided for in this chapter. In adopting these regulations, the secretary shall take into consideration the preservation of high quality market milk for consumers, as well as avoidance of hardship and unreasonable expense for persons engaged in the processing, packaging, and distribution of market milk.
ARTICLE 2. Market Milk Standards and Grades [35781. - 35788.]
Except as otherwise provided in this article, market milk shall not contain any of the following:
More than 15,000 bacteria per milliliter or more than 10 coliform bacteria per milliliter if to be sold as raw milk to the consumer.
More than 50,000 bacteria per milliliter if to be sold as raw milk for pasteurization or more than 750 bacteria per milliliter after having been subjected to laboratory pasteurization which has a time-temperature equivalent to that required in Section 34001 before pasteurization.
More than 15,000 bacteria per milliliter or more than 10 coliform bacteria per milliliter at time of delivery to the consumer, if pasteurized.
More than 750 coliform bacteria per milliliter in raw milk for pasteurization. Samples shall be taken while the milk is on the premises of the producer.
More than 800,000 somatic cells per milliliter, as determined by direct microscopic somatic cell count, electronic somatic cell count, or optical somatic cell count. After January 1, 1990, the maximum somatic cell count shall be 600,000 somatic cells per milliliter, as determined by the methods specified in this paragraph. This paragraph does not apply to market goat milk.
The director may, by regulation, require different standards for raw market milk for pasteurization from the standards in this section if he or she determines, after an administrative hearing, that the standards are necessary to protect or improve milk quality.
A milk producer delivering in cans on delivery to a plant receiving both graded market milk and ungraded market milk or manufacturing milk shall label each can containing market milk as to the producer and grade of such market milk.
Market milk shall be cooled to 45 degrees Fahrenheit or below, whether it is raw or pasteurized, and, except as otherwise provided in Section 35783, shall be so maintained until it is delivered to the consumer.
Market milk shall be cooled as indicated by a recording thermometer to 50 degrees Fahrenheit (10 degrees Celsius) or less within four hours of the commencement of the first milking and to 45 degrees Fahrenheit (7 degrees Celsius) or less within two hours of the completion of milking. The blend temperature after the first milking and subsequent milkings, or milk in transit on bulk milk tankers, shall not exceed 50 degrees Fahrenheit (10 degrees Celsius). The secretary may promulgate regulations to provide for temporary deviations from the requirements of this section that may occur as a result of emergencies arising from equipment failure, or as a result of other unusual circumstances; provided, however, that the quality and safety of the product are not adversely affected.
A recording thermometer shall be installed in each dairy farm milk storage tank used to cool or store market milk during the milking process. If a farm pickup tanker is used in lieu of a dairy farm tank, the recording thermometer shall be installed in the pipeline following an effective cooling device that cools the milk to 45 degrees Fahrenheit (7 degrees Celsius) or less. Nothing in this section shall be construed as meaning that a recording thermometer must be attached when milk tankers are moved over the road. The secretary shall issue regulations providing standards for these thermometers including installation and operation.
Market milk, except as provided in Section 35784.2, at the time of delivery to the consumer, shall contain not less than 3.5 percent of milk fat and not less than 8.7 percent of solids not fat. The minimum percentages of milk fats and solids not fat required by this section may vary by an amount no greater than 0.1 of 1 percent, if the total combined percentages of milk fat and solids not fat, at the time of delivery to the consumer, equals or exceeds 12.2 percent.
Market milk produced and marketed pursuant to Article 7 (commencing with Section 35921) of this chapter and Sections 35861 and 35891 shall contain not less than 3.5 percent of milk fat and not less than 8.5 percent of solids not fat. The minimum percentages of milk fat and solids not fat required by this section, may vary by an amount no greater than 0.1 of 1 percent, provided that the total combined percentages of milk fat and solids not fat, at the time of delivery to the consumer, shall equal or exceed 12 percent.
Notwithstanding any other law, 6 percent milk is a standard of identity and shall contain not less than 6 percent of milk fat and not less than 8.7 percent of solids not fat at the time of delivery to the consumer.
The minimum percentages of milk fat and solids not fat prescribed by this section may vary by an amount no greater than 0.1 of 1 percent, if the total combined percentages of milk fat and solids not fat equals or exceeds 14.7 percent at the time of delivery to the consumer.
The secretary may establish milk standards for 6 percent milk sold in the state.
Six percent milk shall meet all of the following:
All the standards and requirements for market milk as specified in this division, except as provided for in subdivision (a).
The applicable labeling requirements required pursuant to Title 21 of the Code of Federal Regulations. The name used on the label shall be “6 percent milk” or “6% milk.”
Market milk which is produced for sale under the supervision of an approved milk inspection service, or a milk inspection service which is established and conducted by the director, shall be in conformity with the provisions for the respective grades as defined in this chapter.
Market goat milk may be standardized to a milk fat content of not less than 2.8 percent. Market goat milk at the time of delivery to the consumer shall contain not less than 8.0 percent of solids not fat.
Where a milk inspection service has been approved or established pursuant to this code, market milk shall be graded and designated into one of the following classes:
“Certified milk.”
“Guaranteed milk.”
“Grade A milk.”
It is unlawful for any person to sell any milk as, or under the representation of, guaranteed or grade A milk, except under the supervision of a milk inspection service which is approved by the director or which is established and conducted by the director.
ARTICLE 3. Market Cream Standards [35811. - 35811.]
Market cream shall conform to all of the standards which are set for market milk of the same grade except those which relate to milk fat and solids-not-fat, and the optional addition of harmless, edible stablizer-emulsif ier either singularly or in combination not exceeding 0.6 of 1 percent, as approved by the director, and except that the maximum bacterial count for pasteurized market cream shall be 20,000 per gram.
ARTICLE 4. Pasteurized and Raw Market Milk [35831. - 35834.]
Pasteurized market milk shall be cooled to a temperature of 50 degrees Fahrenheit or below immediately after pasteurization and shall be so maintained until it is delivered to the consumer.
Repasteurized milk may only be reprocessed and sold as a “Grade A” product under the following conditions and restrictions:
Milk and milk products drained from processing equipment at the end of a run, collected from a defoamer system, and milk or milk product solids rinsed from equipment, containers, or pipelines shall be repasteurized only if that milk or those milk products are handled in a sanitary manner and maintained at 45 degrees Fahrenheit (7 degrees Celsius) or less. When the handling or cooling, or both, of that milk or those milk products is not in compliance with this requirement, they shall be discarded.
Equipment, designated areas, or rooms utilized for handling, processing, and storage of returned packaged milk or milk products are maintained, operated, cleaned, and sanitized so as to preclude the contamination of Grade A products and equipment and the Grade A operations. The repasteurization of milk and milk products shipped in milk tank trucks, which have been pasteurized at another Grade A milk plant and have been handled in a sanitary manner and maintained at 45 degrees Fahrenheit (7 degrees Celsius) or less, is permitted.
Packaged milk and milk products that have physically left the premises of the processing plant shall not be repasteurized for Grade A use.
Milk and milk products from damaged, punctured, or otherwise contaminated containers, or milk products from out-of-code containers, shall not be repasteurized for Grade A use.
All milk and milk products that have overflowed, leaked, or been spilled or improperly handled shall be discarded.
Notwithstanding subdivision (a), the secretary may, on a specific request, authorize reprocessing of packaged milk and milk products provided all other requirements of this section, including proper storage temperature and container integrity, are complied with.
All pasteurized market milk and market milk products shall be bottled or canned only in the plant where pasteurized, except as otherwise provided in this division.
This section does not apply to market cream or cultured market milk products having a product acidity of not less than 0.20 percent expressed as lactic acid.
Raw market milk and pasteurized market milk shall not be bottled in the same milk products plant for sale and distribution within a city or county which maintains an approved milk inspection service, except where an official representative of such approved milk inspection service is present during the period of handling, processing, or bottling such market milk, or except in those milk products plants where all market milk which is received meets the requirements for grade A raw milk.
This section does not apply to market cream.
ARTICLE 5. Guaranteed Market Milk [35861. - 35863.]
Guaranteed raw milk is market milk which conforms to all of the following minimum requirements:
The health of the cows and goats shall be determined at least once each month by an official representative of an approved milk inspection service, or a milk inspection service which is established by the director.
It shall be produced on dairy farms which score not less than 90 percent on the dairy farm scorecard.
It shall be bottled on the premises where produced and delivered in containers which have the pouring lip completely protected from contamination.
It shall be cooled as provided in Section 35782, and so maintained until it is delivered to the consumer, at which time it shall contain not more than 10,000 bacteria per milliliter or not more than 10 coliform bacteria per milliliter.
It shall be sold to the consumer within 30 hours after production and labeled to indicate the date of sale to the consumer.
All persons who come in contact with guaranteed raw milk shall exercise scrupulous cleanliness and shall not be afflicted with any communicable disease or in a condition to disseminate the germs of any communicable disease which is liable to be conveyed by milk. The absence of such germs in all such persons shall be determined by bacteriological and physical examination by a health department which maintains an approved milk inspection service, or other person or laboratory which is approved in writing by the department, conducted at the time of employment and every six months thereafter in a manner which is approved by the director.
Guaranteed pasteurized milk shall conform to all the requirements for guaranteed raw milk, except that it shall contain not more than 3,000 bacteria per milliliter at the time of delivery to the consumer.
ARTICLE 6. Grade A Market Milk [35891. - 35893.]
Grade A raw milk is market milk which conforms to all the following minimum requirements:
The health of the cows and goats shall be determined at least once in two months by an official representative of an approved milk inspection service, or a milk inspection service which is established by the director.
It shall be produced on dairy farms that score not less than 90 percent on the dairy farm scorecard.
It shall be cooled as provided in Section 35782 and so maintained until delivered to the consumer, at which time it shall contain not more than 15,000 bacteria per milliliter or more than 10 coliform bacteria per milliliter.
All persons who come in contact with grade A raw milk shall exercise scrupulous cleanliness and shall not be afflicted with any communicable disease or be in a condition to disseminate the germs of any communicable disease which is liable to be conveyed by milk. The absence of such germs in all such persons may at the discretion of an approved or established milk inspection service be determined by bacteriological and physical examination in such manner as may be prescribed by the director and by such person or laboratory which is approved in writing by the department, conducted at the time of employment and every six months thereafter in a manner which is approved by the director.
Milk for grade A pasteurized milk is market milk that conforms to all the following minimum requirements:
The health of the cows or goats shall be determined at least once in six months by an official representative of an approved milk inspection service, or a milk inspection service that is established by the director.
The milk shall be cooled as provided in Section 35783.
It shall be produced on dairy farms that score not less than 90 percent on the dairy farm scorecard that is adopted by the director.
Shall meet the standards of Section 35781 or the regulation adopted pursuant thereto.
ARTICLE 7. Certified Milk [35921. - 35928.]
Certified milk is market milk which conforms to the rules, regulations, methods, and standards for the production and distribution of certified milk adopted by the county milk commission established in a county pursuant to this article.
Certified milk shall bear the certification of a milk commission which shall be appointed as provided by this article by the board of supervisors in any county in which certified milk was produced on January 1, 1968. The board of supervisors of any other county may create a commission.
A county milk commission shall consist of six members who reside in the county where the commission is located and who shall be appointed by the board of supervisors for a term of four years and shall be eligible for reappointment. The members shall be appointed as follows:
A physician who is a member of a county medical association organized under and approved by the Medical Society of the State of California.
A physician nominated by the county health department.
A veterinarian, who shall be a member of the county or regional veterinarian association.
A physician nominated by a producer or producers of certified milk in the county.
A physician nominated by the American Association of Medical Milk Commissions, Incorporated.
A public member, appointed by the board of supervisors.
If no nomination is made by a group so authorized to nominate a member under subdivisions (a) to (e), inclusive, the board of supervisors shall appoint a person who is a member of any of the designated organizations authorized to nominate members.
A county milk commission shall adopt rules, regulations, and standards governing the production, distribution, and sale of certified milk, including unpasteurized milk, as it deems necessary to protect public health and safety.
The rules, regulations, and standards adopted by a county milk commission shall conform as nearly as practicable to, or may be more restrictive than, the rules, regulations, and standards for the production, distribution, and sale of milk, including unpasteurized milk, adopted by the American Association of Medical Milk Commissions.
A county milk commission shall give reasonable notice to the public of its meetings, and shall hold its public hearings in public buildings.
Members of the commission shall receive twenty-five dollars ($25) per diem for each day spent on official business of the commission, payable from the fees collected pursuant to this article. No member of the commission shall travel beyond the boundaries of the state on official business without prior approval of the county board of supervisors.
A county milk commission shall certify milk, including unpasteurized milk, for any applicant for certification whose milk complies with the rules, regulations, and standards for production, distribution and sale of milk adopted by the commission and prescribed in this code, irrespective of whether the milk is produced in the county in which the commission is located or in a contiguous county, so long as there is not a milk commission located in such a contiguous county. Provided, however, that the power of a milk commission to certify milk produced in the contiguous county shall terminate at such time as a milk commission is created in such contiguous county.
Nothing in this section shall affect any milk inspection, including an approved milk inspection service pursuant to Chapter 4 (commencing with Section 33051) of this part or any other inspection, for milk which is produced in such contiguous county and certified by the commission.
A county milk commission may establish such fees, and expend funds derived therefrom, as are reasonably necessary to defray the costs of certifying milk.
A county milk commission may conduct any tests that it finds are reasonably necessary to carry out the purposes of this article and may employ personnel to conduct such tests and for such other duties as the commission deems necessary.
All applicants for certification shall submit samples for testing when requested to do so by the commission.
When the director, any health officer acting as an agent of the director, or a milk inspection officer acting as an agent of the director having jurisdiction, determines that the oral ingestion by a human being of any raw milk or certified raw milk supply has caused disease in a human being, he shall prohibit the use, sale, or disposal of such milk, except by a method approved by the director, until such cause has been corrected or eliminated. Application may be made by the director or any such officer to the superior court of the county where the supply is produced or stored in order to obtain an injunction prohibiting the use, sale, or disposal of such milk. If the court determines that it is a reasonable medical probability that the ingestion by a human being of such milk supply was the proximate cause of a case of disease in such human being and that the milk supply is unsafe for human consumption, the court shall take such action as is necessary to enforce the order. When the court thereafter determines that it is a reasonable medical probability that the ingestion by a human being of such milk supply will not be the proximate cause of a case of disease in a human being and that the milk supply is safe for human consumption, such order of prohibition shall be dissolved.
When the director, any health officer acting as an agent of the director, or a milk inspection officer acting as an agent of the director having jurisdiction, has good cause to believe, as a result of either a laboratory test by a laboratory certified by the department or a recognized test, on the animal or the milk from the animal or the herd, that a case of typhoid fever, salmonella infection, bacillary dysentery, diphtheria, respiratory streptococcal infection, brucellosis, or tuberculosis, is present in one or more cows or in the milk of one or more cows of any dairy herd, he shall prohibit the use, sale, or disposal of the raw milk or certified raw milk from the herd containing the diseased cow or cows, except by a method approved by the director, until such cause has been corrected or eliminated. Application may be made by the director or any such officer to the superior court of the county where the milk supply is produced or stored in order to obtain an injunction prohibiting the use, sale, or disposal of such milk. If the court determines that it is a reasonable medical probability that such disease is present in the milk of one or more cows of any dairy herd and that the milk supply is unsafe for human consumption, the court shall take such action as is necessary to enforce the order. When the court thereafter determines that it is a reasonable medical probability that such disease is no longer present on the premises of such dairy and that the milk supply is safe for human consumption, such order of prohibition shall be dissolved.
When the director, any health officer acting as an agent of the director, or a milk inspection officer acting as an agent of the director, has good cause to believe, as a result of a laboratory test by a laboratory certified by the department or a recognized test, on the animal or the milk, that a raw milk or certified raw milk supply under the control of the producer of such milk supply is suspected to be the source of an infection for a communicable disease, or that a raw milk or certified raw milk supply may cause an infection of a communicable disease, he shall prohibit the use, sale, or disposal of such milk, except by a method approved by the director, until such cause has been corrected or eliminated. However, in the case of such a milk supply being under the control of either a retailer or distributor to retailers, the director or his agent may only prohibit the use, sale, or disposal of such milk in a manner used for any other market milk or milk product.
Actions taken pursuant to the provisions of subdivision (c) shall in each instance be subject to judicial review under Section 1085 of the Code of Civil Procedure by the superior court of the county with jurisdiction. Such review shall be conducted for the purpose of determining if the action taken shall be sustained or dissolved. At issue in the review shall be the questions of adequate protection of the public health and safety, and the guarantee of due process of law for the persons controlling, or producer of, the raw or certified raw milk supply affected by the action. The department shall have the burden of proof to sustain the actions of the director or his agents at issue in the review.
In the event the court, after such review, finds that the action by the director shall be dissolved, the department shall bear the actual court costs incurred by the persons controlling, or producers of, the raw or certified raw milk supply, and their actual testing costs for any animal or milk tests previously ordered by the department to determine if such milk supply, which is the subject of such court action, is the source of, or may cause, an infection for a communicable disease.
As used in this subdivision, “testing costs” means the actual cost of obtaining samples to be tested, the actual cost of laboratory tests, and the actual cost for extra labor to confine the cattle for the purpose of testing.
In addition to any procedural requirements of Section 32731, any routine inspection conducted for the purpose of taking samples of milk or inspecting any cow pursuant to subdivision (b) or (c) shall be conducted only after the issuance of an inspection warrant as provided in Title 13 (commencing with Section 1822. 50) of Part 3 of the Code of Civil Procedure, unless such inspection is conducted with the knowledge of the persons controlling the milk supply or cow. In the taking of a sample of milk pursuant to subdivision (a), (b), or (c), a duplicate of any sample of raw milk or certified raw milk shall be left with the persons in control of, or producers of, such milk.
The Legislature finds and declares that the state does not intend to limit or restrict the availability of certified raw milk and certified raw milk products to those persons desiring to consume such milk and such products, provided such milk and products meet standards of sanitation and wholesomeness at least equal to market milk that is grade A raw milk, as defined in Section 35891.
ARTICLE 8. Homogenized Market Milk and Cream [35941. - 35945.]
Homogenized market milk is market milk which has been subjected to a process or treatment in such manner as to insure the breakup of the fat globules to such an extent that no visible cream separation will occur on the milk after 48 hours storage at a temperature of between 40 and 50 degrees Fahrenheit and the fat percentage of the top 100 cc. of milk in a quart bottle, or proportionate volumes in containers of other sizes, does not differ by more than 10 percent of itself from the milk fat percentage of the remaining milk as determined after thorough mixing. In removing the top 100 cc. of milk, it shall be siphoned off. Homogenized market milk shall otherwise conform to all requirements for market milk.
Homogenized market cream is market cream which has been subjected to a process or treatment in such manner as to insure breakage of the fat globules to such an extent that no visible cream separation will occur after 48 hours. Homogenized market cream shall otherwise conform with all other requirements for market cream.
Homogenized market milk or homogenized market cream shall not be mixed with market milk or market cream which has not been homogenized.
Homogenized milk and homogenized cream shall be so labeled.
ARTICLE 9. Half-and-Half [35971. - 35971.]
Half-and-half is a food that complies with Section 131.180 of Title 21 of the Code of Federal Regulations. Half-and-half shall contain not more than 20,000 bacteria per milliliter and not more than 10 coliform bacteria per milliliter.
ARTICLE 9.5. Ultra-Filtered Milk Products [35975. - 35975.]
For purposes of this article, “ultra-filtered milk products” are market milk products resulting from the filtration of milk to alter the relative quantities of milk solids, including proteins, lactose, and minerals, but excluding fat components. When lactose has been completely or partially removed by filtration, the percentage of total milk solids, not including fat components, may be reduced by no more than the percentage of lactose removed.
The secretary shall have the authority to establish milk standards for ultra-filtered milk products sold in the state.
Ultra-filtered milk products shall meet all standards and requirements for market milk that are specified in this division, except as provided in subdivision (a).
Ultra-filtered milk products shall be labeled in accordance with the applicable provisions of Title 21 of the Code of Federal Regulations. The term “ultra-filtered” shall be included in the product name on the product label.
ARTICLE 10. Labeling and Advertising [36001. - 36005.]
The following information shall at all times appear plainly and in a conspicuous place on, or be securely attached to, every cap, bottle, can, or other container of all market milk which is sold:
The class or grade of the market milk, unless the market milk is being sold in bulk to a distributor.
The word “raw,” if the market milk has not been pasteurized.
The word “pasteurized” if the market milk has been pasteurized.
The name and address of the distributor or original bottler.
If the name and address of the distributor is used, the milk products plant license number of the original bottler, as assigned annually by the director, may be used in lieu of the name and address of the original bottler.
All labels which are required by Section 36001 shall be in capital letters of a size and boldness as to be legible by the purchaser or consumer. If the available space on any cap, bottle, or container for such labeling is not sufficient for the full name of the distributor, then a sufficient portion of the distributor’s name which clearly identifies such distributor may be used in lieu of the entire distributor’s name.
At the time of sale to the consumer by a retail store of any product designated in this section, there shall appear on the package or container of the product the date established by the processor as the date by which the product should normally be used to ensure consumer quality.
This section applies to the following products:
Market milk.
Market cream.
Any milk product that is required by this code, or by any regulation adopted by the secretary pursuant to this code, to be made from market milk or any component or derivative of market milk.
This section does not apply to any milk or milk products processed, packaged, and sold by distributors directly to consumers.
This section does not apply to any bulk shipments of milk or milk products between distributors.
The secretary shall, in compliance with applicable provisions of this code and Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, and after public hearing or hearings, adopt regulations pertaining to (1) responsibility for affixing to packages or other containers the quality assurance date provided for in this section, (2) the manner, style, form, and place of affixation of the date to packages and other containers in a conspicuous place in a form that is readily seen and easily understood by the buyer, and (3) the administration and enforcement of the requirements of this section.
If a product is made from goat milk, either the phrase “goat milk” or “made from goat milk” shall immediately precede or follow the name of the product wherever the name appears, and in the same type size and style as the product name.
ARTICLE 11. Bottle Caps and Labels [36031. - 36033.]
It is unlawful for any person that sells or handles market milk, except the original bottler of the market milk, to have in his possession, or under his control, any milk bottle cap or label, except the caps or labels that are affixed to the filled containers at the time of delivery to the seller or handler.
It is unlawful for any person that sells or handles market milk to remove any cap or label from any milk container and attach such cap or label to another milk container.
It is unlawful for any person to sell or use any milk bottle caps which are not packed by the manufacturer in single column in unopened, dustproof tubular packages.
ARTICLE 12. Misrepresentation [36061. - 36065.]
No false, misleading, or deceptive name, picture, symbol, mark, word, or other representation shall appear on any milk bottle, bottle cap, can, or other container, nor on any advertisement for market milk.
A label or advertisement of market milk is false, misleading, or deceptive if in any particular it is untrue, or by ambiguity or inference creates a misleading or deceptive impression regarding the production, handling, processing, quality, composition, merits, or value of such market milk.
It is unlawful for any person to sell, purchase, use, or represent as market milk or market cream any milk or cream which does not meet the requirements and standards of market milk or market cream.
Except as otherwise provided in this division, it is unlawful for any person to sell, purchase, use, or represent as market milk or market cream any milk or cream which is combined with any other substance or compound.
It is unlawful for any person to serve to any customer for consumption on the premises milk or cream which is combined with any other substance or compound and represented as a substitute for or to take the place of market milk or market cream.
ARTICLE 13. Restricted Use and Exclusion Based Upon Dairy Score [36091. - 36092.]
Milk that is delivered by the producer of the milk, to be sold as any grade of market milk, shall not be restricted in use or excluded from the market if a score of the dairy farm on which the milk is produced is below the specified minimum legal requirements unless both of the following occur:
A copy of the score is promptly given to the proprietor or operator of the dairy farm and, if milk is sold in bulk to a distributor or processor, a copy of the notice is also given or mailed to the distributor or processor.
A rescore, after 10 days, shows the score of the dairy farm to be still or again below the specified minimum legal requirements and a copy of the rescore is promptly given to the proprietor or operator of the dairy farm and the purchaser of the milk produced by the dairy farm and until 60 hours has elapsed after the rescore.
If, during the 60 hours following the rescoring of a dairy farm, a protest is filed with the head of the milk inspection service under whose jurisdiction the milk of the dairy farm is sold, the milk which is produced on that dairy farm shall not be restricted in use or excluded from the market until a third score has been made and concurred in by the representative of the milk inspection service and the secretary.
ARTICLE 14. Restricted Use or Exclusion [36123. - 36123.]
Whenever two of the last four consecutive bacteria counts, coliform determinations, or cooling temperatures taken on separate days exceed the limit of the standard for market milk or products of market milk, or both, the health authority or secretary shall send a notice thereof to the producer or distributor concerned. This notice shall be in effect as long as two of the last four consecutive samples exceed the limit of the standard. An additional sample shall be taken within 14 days of the sending of the notice, but not before the lapse of three days. Immediate restricted use of the market milk or product of market milk or exclusion of the market milk or product of market milk shall be instituted whenever the standard is violated by three of the last five bacteria counts, coliform determinations, or cooling temperatures, provided that no action required by this section shall be based upon a sample that is over 180 days old.
Violations of bacterial, coliform, and cooling temperature standards shall be followed promptly by inspection to determine and correct the cause. This inspection shall be made immediately when the notice required by this section is sent.
Samples may be taken from consecutive milking at the producer level and from consecutive lots of processed products and shall be taken when requested by the producer or processor. Analysis of those samples shall commence within 36 hours from their taking.
Reinstatement of the market milk or products of market milk shall be made when two consecutive samples taken within a seven-day period following notice of restricted use again meet the standard. For the purpose of this section sampling for reinstatement and the new compliance series shall begin with the first sample taken after use is restricted.
CHAPTER 3. Restricted Use Market Milk and Manufacturing Milk and Cream [36301. - 36331.]
ARTICLE 1. General Provisions [36301. - 36306.]
Restricted use market milk, manufacturing milk, or manufacturing cream shall be sold only for manufacturing purposes and to be converted into some other form or product.
Restricted use market milk, manufacturing milk, or manufacturing cream shall not be sold for human consumption in a fluid state.
Restricted use market milk, manufacturing milk, or manufacturing cream shall not be sold in quantities of less than three gallons or in containers of less than three gallons capacity. Pasteurized manufacturing cream shall not be sold in quantities of less than one-half gallon or in containers of less than one-half-gallon capacity.
Manufacturing milk or manufacturing cream may be repasteurized once.
ARTICLE 2. Manufacturing Milk Standards [36331. - 36331.]
Manufacturing milk shall comply with all of the following requirements:
It shall be free from foreign substances.
It shall not contain any undesirable flavors or odors.
It shall not contain more than 2,000,000 individual bacteria per milliliter as found by direct microscopic count.
In addition, manufacturing milk shall comply with the rules, regulations, and standards of the United States Department of Agriculture which govern quality standards of raw milk.
PART 3. MANUFACTURED PRODUCTS [36601. - 39912.]
CHAPTER 1. Generally [36601. - 36675.]
ARTICLE 1. Quality Standards [36601. - 36606.]
The director shall adopt, by regulation, quality standards that are necessary for any product which is defined in this division. These quality standards which are adopted by the director shall be not lower than those which are in effect under regulations of the United States Department of Agriculture, but may be higher if found by the director to effectuate the purposes of this part, and of this section, which are, among others, to provide dairy products to the consumers of this state of the highest possible quality.
The director, in determining the quality of any product which is sold, but not produced and processed in this state, shall ascertain that such product will meet the minimum quality requirements which are applicable to such product by the standards which are contained in, or established by, regulations which are adopted pursuant to this division.
Any standard which is established pursuant to this article shall expire on the 61st day after the final adjournment of the second regular session of the Legislature commencing after the establishment or issuance of such standard.
No product for which standards are required to be established pursuant to Section 36601 is required to meet any quality standards which are in excess of those that are in effect under regulations of the United States Department of Agriculture, unless a like product is processed in this state and the processors of such like product in this state are also required to meet such higher standards.
Except as otherwise provided in Section 36604 and notwithstanding any other provisions of this part, no dairy products, as such products are defined in this division, shall be sold within this state unless they are of a quality which is comparable to that of the same product which is manufactured or processed pursuant to this division.
Safe and suitable bacteria standards may be adopted by the director for use in specific dairy products except for varieties of hard and soft cheese. Any bacteria strain approved by the director under this section shall appear in the ingredient list of the product. The name of any bacteria strain approved by the director for use in a dairy product for which the standard does not otherwise require use of one or more bacteria strains shall appear with the product name on the principal display panel or panels of the package in letters not less than one-half the height of the letters used in the product name.
The director shall establish a minimum viable organism count for any bacteria strain approved pursuant to this section in any dairy product for which the standard does not otherwise require use of one or more bacteria strains. The director shall also establish an official test procedure for the purpose of enforcing the minimum bacteria count level in any dairy products for which such a minimum has been established.
ARTICLE 2. Temporary Standards [36631. - 36638.]
The Legislature intends that the director administer this article to accommodate, in a timely fashion, safe and wholesome milk products.
This article applies to products resembling milk products that are processed and sold pursuant to Chapter 6 (commencing with Section 38901) and all milk and dairy products processed and sold pursuant to this division. This article does not apply to any of the following:
Combination milk and food products processed and sold pursuant to regulations adopted pursuant to Article 3 (commencing with Section 36661).
Special varieties of cheese processed and sold pursuant to regulations adopted pursuant to Section 37402.
For purposes of this article, “new milk product” or “new product resembling a milk product” means a product for which no state statutory or administrative regulation standard of identity exists, and may include a product that is classified by the United States Food and Drug Administration as nonstandard.
Upon the request of any interested person, the director may, following a properly noticed hearing, pursuant to subdivision (c) of Section 36634, grant a temporary standard for an initial period of one year. A temporary standard may be granted for a new milk product or a new product resembling a milk product. However, in no case shall a temporary standard be granted for a product for which a definition and standard was contained in a bill which was not enacted during the immediately preceding session of the Legislature. A hearing called pursuant to this section shall be by written brief, unless an oral hearing is specifically requested by an interested person.
The petition shall include a proposed definition, standard, nomenclature, and label for the new product. The petition shall also address the relation between the proposed product and existing definitions and standards established for comparable products.
A hearing called pursuant to this article shall be for the following purposes:
Establishing if the product proposed for a temporary standard qualifies for that standard.
Evaluating whether a temporary standard has been properly sought for the proposed product definition, standard, nomenclature, and label offered by the petitioner.
Following the hearing, the director shall evaluate the temporary standard request on the basis of all of the following:
Testimony submitted by all interested persons.
The health and safety conditions under which the proposed product will be processed and distributed.
Existing definitions and standards which are established for comparable products.
In granting a temporary standard, the director shall establish an appropriate definition and nomenclature as well as quality and labeling requirements applicable to the permitted product.
The processing of a petition for a temporary standard shall conform to the following schedule:
Notice of the requested hearing or denial thereof shall be announced by the director within 15 days after receipt of a temporary standard petition.
A hearing called pursuant to this section shall be held not later than 65 days following receipt of a temporary standard petition.
The hearing shall be conducted in procedural compliance with applicable provisions of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
The petitioner for a temporary standard shall be notified of the director’s decision on the request not later than 30 days following the closing of the hearing. A temporary standard approved by the director shall be effective immediately upon issuance of the director’s decision, subject to Section 36637.
An unsuccessful petitioner for a temporary standard may repetition not earlier than 60 days following written notification of the denial of the original temporary standard request, if the proposed definition and standard have been modified in the interim or other conditions have changed so that a favorable ruling by the director might reasonably be expected.
A temporary standard granted pursuant to this article may be renewed for a period of one year if the director determines that the renewal is necessary to adequately assess the market potential of the product. A second renewal of a temporary standard may be granted at the discretion of the director, except that in no case shall the second renewal be granted if legislation intended to permanently establish a standard and definition for the product currently being marketed pursuant to a temporary standard has not been introduced during the term of the standard.
The maximum duration of a temporary standard, including any renewals, shall not exceed three years.
Upon granting a petition under this article, the director shall adopt the standard as an emergency regulation pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. For the purposes of this chapter, any regulations adopted under this article shall be deemed to be necessary for the immediate preservation of the public peace, health and safety, or general welfare.
If the director fails to respond to a petition for a temporary standard within 65 days following receipt of the petition, the petitioner may thereafter utilize the standard. However, the right of petitioner to utilize the standard shall expire at the end of the calendar year of the Regular Session of the Legislature immediately following the year in which the use of that standard by petitioner commenced, unless that standard is enacted into law during that calendar year of the regular session of the Legislature.
ARTICLE 3. Combination Milk and Food Products [36661. - 36662.]
In addition to the standards for milk and milk products which are adopted pursuant to this division, the director may adopt separate standards and labeling requirements for any milk or milk product to which is added a food product of a kind which is not derived from milk and for which combination of the food product with milk or milk products no standard has been established or otherwise provided for in this division.
Every definition, standard, and labeling requirement which is adopted pursuant to this article expires on the 91st day after the final adjournment of the next general session of the Legislature.
ARTICLE 4. Sweeteners [36670. - 36675.]
Notwithstanding any other provision of law, sweeteners approved by the United States Food and Drug Administration for use in milk products may be added to milk products.
Prior to the use of any sweetener in a dairy product, the sweetener must be approved by the United States Food and Drug Administration for use in that milk product or the applicable milk product category.
Except as otherwise provided in this article, a milk product containing any sweetener shall be in conformance with all provisions of the applicable product definition and the identity standard specified in this division for the product.
A milk product containing any sweetener not included in the product identity standard shall be labeled in accordance with Section 36674 and all federal requirements, including any necessary consumer warning language and all ingredient labeling regulations.
The director shall approve the label and the name for any milk product containing any sweetener not included in the product identity standard.
The director may approve any name which is accurate, descriptive, not misleading, and which is consistent with applicable federal regulations. A milk product containing a sweetener not included in the product identity standard shall use a name that is modified by an appropriate word or words consistent with federal regulations.
All words constituting the name of the product as approved by the director shall be in the same type size, style, and color.
The director shall, within 60 days after the effective date of this article, develop and distribute guidelines applicable to food handling establishments which serve milk products intended for on-premise consumption for which packaging takes place at the point of sale to the consumer. The guidelines shall specify how the use of a sweetener not included in the product identity standard shall be noticed to the consumer, including the posting of any health warning required under federal regulations.
CHAPTER 2. Frozen Dairy Products [36801. - 36992.]
ARTICLE 1. General Provisions [36801. - 36809.]
Pasteurized cream that is sold or used for ice cream, frozen dairy dessert, frozen dessert, or sherbet manufacture shall be clean, sweet, and free from undesirable flavors and odors. It shall contain not more than 75,000 bacteria per milliliter, official plate count.
Milk and any milk product that is used in the manufacture of ice cream, frozen dairy dessert, frozen dessert, or sherbet shall be pasteurized.
Sweet butter that is used in ice cream, frozen dairy dessert, and frozen dessert shall be unsalted butter made from sweet cream that is free from undesirable flavor or odors. It shall have a rating of not less than 92 in accordance with the standards for quality of creamery butter that are established in Article 2 (commencing with Section 37131) of Chapter 3. Cream to which has been added ripener or starter, or cream that has been neutralized, is not sweet cream within the meaning of this section.
Every product which is defined in this chapter shall be advertised and labeled in accordance with regulations which are adopted by the director.
Ice cream, frozen dairy dessert, frozen dessert, sherbet, or quiescently frozen confections when sold in package form shall be labeled with the name, address, and ZIP Code of the manufacturer, the wholesale distributor, or the retailer.
If the name and address is not that of the original milk products processing plant, there shall be stamped, printed, or embossed upon the package, in a manner acceptable to the director, the plant number of the manufacturer or packer. This plant identification shall be consistent with, and not more restrictive than, the National Uniform Coding System for packaging identification of milk and milk products processing plants.
Ice cream mix, frozen yogurt mix, frozen dairy dessert mix, and frozen dessert mix are unfrozen products that are used in the manufacture of ice cream, frozen yogurt, frozen dairy dessert, or frozen dessert. They shall have been pasteurized and comply with all the requirements for ice cream, frozen yogurt, frozen dairy dessert, or frozen dessert, respectively.
The director, by regulations, may authorize the use of wholesome, edible dairy products, as permissible ingredients, in frozen dairy products, in addition to those for which standards are provided for under this code for such frozen dairy products.
Ice cream, frozen dairy dessert, frozen dessert, and sherbet may contain safe and suitable nonmilk-derived ingredients as specified in applicable provisions of the Code of Federal Regulations. If these nonmilk-derived ingredients are used, the minimum quantity of food solids required in this chapter for ice cream, frozen dairy dessert, frozen dessert, and sherbet shall be maintained exclusively of these additives.
Federal nutritional labeling regulations apply to all frozen dairy products, except nutritional labeling provided for any frozen dairy product mix or any frozen dairy product dispensed by a soft serve establishment, shall state, on the basis of weight, the serving size upon which nutritional declarations are based.
ARTICLE 2. Ice Cream [36861. - 36861.]
Ice cream is a food that complies with Section 135.110 of Title 21 of the Code of Federal Regulations. Ice cream shall contain not more than 75,000 bacteria per gram.
ARTICLE 5. Sherbet [36951. - 36952.]
Sherbet is a food that complies with Section 135.140 of Title 21 of the Code of Federal Regulations. Sherbet shall contain not more than 75,000 bacteria per gram.
Yogurt sherbet is a product that meets all the requirements and standards prescribed for sherbet, except as follows:
It shall have an acidity of not less than six-tenths of 1 percent calculated as lactic acid.
Bacteria standards which are specified for sherbet do not apply to yogurt sherbet.
It shall have a yogurt content of not less than 40 percent.
ARTICLE 6. Quiescently Frozen Confections [36981. - 36984.]
Quiescently frozen confections means a clean and wholesome frozen, sweetened, flavored product in the manufacture of which freezing, which is not accompanied with stirring or agitation (generally known as quiescent freezing), has been used. This confection may be acidulated with harmless organic acid, may contain milk solids, may be made with or without added harmless pure or imitation flavoring, and with or without added harmless coloring approved by the secretary. The finished product may contain stabilizers at a level that is necessary to achieve the desired function. Quiescently frozen confections shall contain no more than 75,000 bacteria per gram.
Quiescently frozen confections may be sold under trade names which are not misleading or deceptive.
A quiescently frozen confection shall be manufactured in a form of servings, individually packaged, bagged, or otherwise wrapped, properly labeled, and purveyed to the consumer in their original factory-filled package.
In the production of a quiescently frozen confection, no processing or mixing prior to the quiescent freezing shall be used that develops in the finished confection mix any physical expansion in excess of 10 percent.
ARTICLE 7. Frozen Yogurt [36991. - 36992.]
Frozen yogurt is a frozen dairy product. It shall be made from milk, with or without added milk solids, flavoring, or seasoning, which has been pasteurized and afterwards fermented by one or more strains of Lactobacillus bulgaricus, including yogurt strains, Streptococcus thermophilous and Lactobacillus acidophilus. It shall not be pasteurized following fermentation. It shall contain not more than 10 coliform bacteria per gram, contain not more than 10 colonies per gram each of molds, yeasts, and other fungi, and be free of any other objectionable bacteria that may impair the quality of the product.
Frozen yogurt shall contain not less than 3.5 percent milkfat.
CHAPTER 3. Butter [37101. - 37292.]
ARTICLE 1. General Provisions [37101. - 37104.]
As used in this chapter:
“Package” includes cartons, wrappers, or other containers which are used for the sale of butter to the retail trade.
When “numerals” appear following words which relate to scoring, the numerals represent the score of the butter, 100 being a perfect score.
All scoring of butter shall be in the manner which is specified in the regulations which are adopted by the director.
Quality designations shall be affixed on the package in a manner and fashion which is prescribed in the regulations which are adopted by the director.
Notwithstanding Section 26001 of the Business and Professions Code, butter purchased from a licensed milk products plant or retail location that is subsequently infused or mixed with medicinal or adult-use cannabis at the premises or location that is not subject to licensing as a milk product plant is exempt from the provisions of this division.
ARTICLE 2. Butter Grades [37131. - 37134.]
All butter which is sold or distributed in package form, including such butter which is received from out-of-state points, shall be classified into grades which indicate its quality and shall be labeled and advertised by the use of one of the following designations:
First quality.
Second quality.
First quality butter is butter which scores not less than 92. The minimum requirements for first quality butter are as follows:
It shall be fresh, sweet and clean in flavor if of fresh make, or sweet and clean if storage.
The body shall be firm.
The color shall be either light or medium and shall be uniform, except that it may show small curd specks or slight waviness.
The salt shall be either light or medium, and free from grittiness.
The package shall be clean, uniform, and sound.
The defects in body, color, salt, and package shall not total over one point.
Second quality butter is butter which scores below 92, but not less than 90. The minimum requirements for second quality butter are as follows:
It shall be fresh and fairly sweet and fairly clean in flavor if of fresh make or fairly sweet and fairly clean if storage.
It may also be flat or lacking in flavor.
The body shall be fairly firm, but may show slight defects in grain and texture.
The color may be either light or medium and shall be fairly uniform, but may be wavy.
The salt may be either light, medium or high, and shall be fairly uniform, but may be slightly gritty.
The package shall be clean, uniform, and sound.
Butter which scores less than 90 shall not be sold or served to consumers. Such butter when sold shall be in bulk packages which contain not less than 30 pounds, and are labeled “for cooking and baking purposes only.”
ARTICLE 3. Butter Standards [37161. - 37164.]
Butter is the product made by gathering the fat or fresh or ripened milk or cream into a mass, which also contains a small portion of other milk constituents.
Butter shall be clean and nonrancid and shall contain not less than 80 percent of milk fat.
Butter may contain salt or a harmless coloring matter.
Butter flavored with spices, condiments, garlic, chives, herbs, or other flavoring may be sold in whipped or solid form, provided the product meets the following requirements:
The butter, before flavoring, meets all of the requirements for USDA 93 score (AA Grade) butter.
The principal flavor is identified on the container with equal prominence with the word “butter.”
The principal display panel has a list of all ingredients in the descending order of predominence, and identifies the name and address of the manufacturer.
The product is processed in a licensed milk products plant.
The product contains no preservative.
ARTICLE 4. Retail Packages [37191. - 37192.]
Butter which is sold to the retail trade shall be labeled with the name and address of the manufacturer, the wholesale distributor, or the retailer. The following words shall appear above the name:
The words “manufactured by” if the name of the manufacturer is given.
The words “distributed by,” if the name of the wholesale distributor is given.
The words “put up for” or “put up by,” as the case may be, if the name of the retailer is given.
Butter which is sold to the retail trade shall be labeled with the words “pasteurized” or “raw,” as the case may be.
ARTICLE 5. Bulk Packages [37221. - 37224.]
Butter which is received in this state by brokers, jobbers, and other persons that receive butter in cubes, tubs, firkins, or other bulk packages shall be labeled with all of the following:
The name and address of the manufacturer.
The date on which the butter was manufactured.
The original lot or churn number.
The markings shall remain on the packages until the butter which is contained in the packages is cut and wrapped for the retail trade.
The name of any city, county, or other geographical designation, or any word which may be pronounced the same as any city, county, or other geographical designation, except the address of the manufacturer, wholesale distributor, or retailer, whose name is printed on any package or wrapper, shall not appear upon any package or wrapper.
This article does not prohibit the use of a trademark or brand which has a geographical name if it was copyrighted or registered in the office of the Secretary of State of this state prior to Janaury 1, 1923.
ARTICLE 6. Imported Butter [37261. - 37262.]
Every person that sells, consigns, ships, or presents to any other person any butter that has been shipped or imported into this state from any place outside of the United States shall, before he does so, do all of the following:
Cause to be stamped, marked, or printed upon the wrapper, or other container in blackface letters which are not less than one-eighth of an inch in height the word “imported.”
Display in a conspicuous place in his public salesroom a sign, which shall be not less than one foot in height and two feet in length, which bears the words “imported butter sold here” in blackface letters not less than three inches in height and one-half inch in width upon a white ground.
Violation of this article is punishable by imprisonment in the county jail for not more than six months, or by a fine of not more than five hundred dollars ($500), or by both.
ARTICLE 7. Renovated Butter [37291. - 37292.]
Renovated butter is the product made from impure or rancid butter reduced, for the purpose of cleansing and renovating, to a liquid state by melting and draining off the liquid milk fat and afterwards churning or otherwise manipulating it in connection with milk or any product of milk.
It is unlawful for any person to sell any renovated butter unless there is printed upon the label of each and every package, or other container in which such renovated butter is put up for sale or sold at retail, all of the following:
The words “renovated butter” in letters which are at least as large as any other type or lettering on such label.
The name and address of the manufacturer or distributor.
The net weight of the contents of the package.
A full and accurate statement of all the ingredients which are contained in the renovated butter.
CHAPTER 4. Cheese [37401. - 37601.]
ARTICLE 1. Varieties of Cheese [37401. - 37414.]
Varieties of cheese are foods that conform to the applicable standards of identity provided for in Part 133 of Title 21 of the Code of Federal Regulations. Varieties of cheese that do not conform to these standards are special varieties and shall conform to the standards of composition adopted by the secretary by regulation and that are not inconsistent with the standards of identity in Part 133 of Title 21 of the Code of Federal Regulations.
Cheddar cheese is a food that complies with Section 133.113 of Title 21 of the Code of Federal Regulations.
Washed-curd cheese is a food that complies with Section 133.136 of Title 21 of the Code of Federal Regulations.
Colby cheese is a food that complies with Section 133.118 of Title 21 of the Code of Federal Regulations.
Monterey cheese or monterey jack cheese is a food that complies with Section 133.153 of Title 21 of the Code of Federal Regulations.
High-moisture jack cheese is a food that complies with Section 133.154 of Title 21 of the Code of Federal Regulations.
Cream cheese is a food that complies with Section 133.133 of Title 21 of the Code of Federal Regulations.
Cream cheese with other foods is a food that complies with Section 133.134 of Title 21 of the Code of Federal Regulations.
Pasteurized neufchatel cheese spread with other foods is a food that complies with Section 133.178 of Title 21 of the Code of Federal Regulations.
Pasteurized process cheese is a food that complies with Section 133.169 of Title 21 of the Code of Federal Regulations.
Pasteurized process cheese food is a food that complies with Section 133.173 of Title 21 of the Code of Federal Regulations.
Pasteurized cheese spread is a food that complies with Section 133.175 of Title 21 of the Code of Federal Regulations.
Cold-pack cheese is a food that complies with Section 133.123 of Title 21 of the Code of Federal Regulations.
Cold-pack cheese food is a food that complies with Section 133.124 of Title 21 of the Code of Federal Regulations.
ARTICLE 2. Cottage Cheese [37501. - 37505.]
Dry curd cottage cheese is a food that complies with Section 133.129 of Title 21 of the Code of Federal Regulations.
Cottage cheese is a food that complies with Section 133.128 of Title 21 of the Code of Federal Regulations. Lowfat cottage cheese is a food that complies with Section 133.131 of Title 21 of the Code of Federal Regulations.
For the purposes of this article, dry curd cottage cheese or cottage cheese made from goat’s milk are special varieties of cheese.
If dry curd cottage cheese or cottage cheese is made from certified raw milk, it shall be labeled as being made from certified raw milk.
The packaging of dry curd cottage cheese or cottage cheese, and the addition of milk products to dry curd cottage cheese to make cottage cheese shall take place only in a licensed milk products plant.
ARTICLE 3. Labeling [37601. - 37601.]
Any cheese sold in this state shall be labeled in compliance with Title 21 of the Code of Federal Regulations.
CHAPTER 5. Miscellaneous Dairy Products [38151. - 38895.2.]
ARTICLE 1. Milk Fat or Butter Fat [38151. - 38152.]
As used in this article, “Reichert-Meissl number” means the number of milliliters of decinormal alkali which are required to neutralize the acidity of the distillate from five grams of fat treated in the manner specified in the regulations adopted by the director. Such regulations shall conform as closely as possible to the methods which are described in the book, entitled “Official and Tentative Methods of Analysis of the Association of Official Analytical Chemists,” published from time to time by that association.
Milk fat or butterfat is the fat of milk. It shall have a Reichert-Meissl number not less than 24 and a specific gravity not less than 905/1000. In determining the specific gravity, milk fat at 40 degrees centigrade shall be compared with water at 40 degrees centigrade.
ARTICLE 2. Skim Milk, Nonfat Milk, or Fat-free Milk [38181. - 38186.]
Skim milk, nonfat milk, or fat-free milk is the product that results from the complete or partial removal of milk fat from milk. It shall contain not more than twenty hundredths of 1 percent of milk fat and not less than 9 percent of milk solids not fat, except that milk produced and marketed pursuant to Article 7 (commencing with Section 35921) of Chapter 2 of Part 2 of this division as skim milk shall contain not more than twenty hundredths of 1 percent of milk fat and not less than 8.5 percent of milk solids not fat.
Skim milk, nonfat milk, or fat-free milk shall conform to the bacterial standards, coliform bacteria standards, and temperature standards of the grade or class of milk from which the skim milk is derived.
All fluid skim milk which is sold for human consumption as such shall be derived from market milk.
Every container in which skim milk, nonfat milk, or fat-free milk is sold shall be plainly and conspicuously labeled with all of the following:
The words “skim milk,” “nonfat milk,” or “fat-free milk.”
The word “raw” or “pasteurized,” as the case may be.
The grade or class of the milk.
The name and address of the distributor.
Every label which is required by this article shall be in letters of a size or boldness as to be legible by the purchaser or consumer. If the available space on any cap, bottle, or container for such labeling is not sufficient for the full name of the distributor, a sufficient portion of the distributor’s name which clearly identifies such distributor may be used in lieu of the entire distributor’s name.
Every container of skim milk, nonfat milk, or fat-free milk, except a glass container, shall be labeled with the words “skim milk,” “nonfat milk,” or “fat-free milk” in letters not less than one-quarter inch in height and one-eighth inch in width.
ARTICLE 2.5. Lowfat Milk or Light Milk [38191. - 38192.]
Lowfat milk or light (lite) milk is a market milk product with added milk solids derived from market milk. Lowfat milk or light milk shall contain not less than 0.9 percent milk fat, not more than 1.1 percent milk fat, and not less than 11 percent of milk solids not fat.
Except as otherwise provided in this article, lowfat milk or light (lite) milk shall meet all standards and requirements that are specified in this division for market milk.
ARTICLE 3. Reduced-fat Milk [38211. - 38213.]
Reduced-fat milk is a market milk product. It shall contain not less than 1.9 percent milk fat, not more than 2.1 percent milk fat, and not less than 10 percent of milk solids not fat.
Except as otherwise provided in this article, reduced-fat milk shall meet all standards and requirements that are specified in this division for market milk. It shall be labeled “reduced-fat milk.”
ARTICLE 3.5. High Nutrient Lowfat Milk [38221. - 38224.]
High nutrient lowfat milk is a market milk product with added milk solids derived from market milk. It shall contain not less than 1.0 percent milk fat or more than 1.2 percent milk fat and not less than 13.1 percent of total milk solids.
In addition to any other vitamins and minerals which may be added, it shall contain the following vitamins and minerals: vitamin C, niacinamide, pyridoxine hydrochloride, calcium panothenate, magnesium, and zinc. When added, each of the above listed vitamins and minerals shall provide at least 25 percent of the United States Recommended Daily Allowance in an eight ounce serving.
Except as otherwise provided in this article, high nutrient lowfat milk shall meet all standards and requirements which are specified in this division for market milk.
High nutrient lowfat milk shall be labeled in accordance with statutes and regulations applicable to vitamin and mineral addition. The phrase “multiple vitamins and minerals added” shall appear with the product on the principal display panel or panels.
ARTICLE 4. Evaporated Milk [38231. - 38231.]
Evaporated milk is a food that complies with Section 131.130 of Title 21 of the Code of Federal Regulations.
ARTICLE 5. Evaporated Cream or Clotted Cream [38241. - 38241.]
Evaporated cream or clotted cream is cream from which a considerable portion of moisture has been evaporated.
ARTICLE 5.5. Evaporated Reduced-Fat Milk or Condensed Reduced-Fat Milk [38251. - 38253.]
Evaporated reduced-fat milk or condensed reduced-fat milk is the liquid food obtained by the partial removal of water and milk fat from milk. The milk fat and total milk solids content of the food shall not be less than 2 percent and 19.5 percent, respectively. Evaporated reduced-fat milk shall contain added vitamins A and D as prescribed in Section 38252. These products shall be homogenized and packaged in hermetically sealed containers and so processed by heat, either before or after sealing, so as to prevent spoilage.
The following vitamin requirements shall be followed:
Vitamin A shall be present in such quantity that each fluid ounce of the food contains not less than 125 International Units thereof, within limits of good manufacturing practice.
Vitamin D shall be present in such quantity that each fluid ounce of the food contains 25 International Units thereof within limits of good manufacturing practice.
The following safe and suitable optional ingredients may be used:
Carriers for vitamins A and D.
Emulsifiers.
Stabilizers, with or without dioctyl sodium sulfosuccinate (when permitted by and complying with the provisions of Section 172.810 of Title 21 of the Code of Federal Regulations).
Characterizing flavoring ingredients, with or without coloring as follows:
Fruit and fruit juice, including concentrated fruit and fruit juice.
Natural and artificial food flavoring.
ARTICLE 6. Evaporated Skimmed Milk [38261. - 38261.]
Evaporated skimmed milk is a food that complies with Section 131.132 of Title 21 of the Code of Federal Regulations.
ARTICLE 11. Dry Whole Milk [38361. - 38361.]
Dry whole milk is a food that complies with Section 131.147 of Title 21 of the Code of Federal Regulations.
ARTICLE 12. Extra Grade Edible Dry Whey, Dry Buttermilk, and Modified Dry Whey [38391. - 38401.]
Extra grade edible dry whey is the product which results by spray drying sweet, fresh cheese whey which has been pasteurized, either before or during the process of manufacture at a temperature of 145 degrees Fahrenheit for 30 minutes or its equivalent in bacterial destruction, and to which no alkali or other chemical has been added.
Extra grade edible dry whey and its reliquefied form shall have a clean whey flavor, free from objectional and nonwhey flavors and odors.
Extra grade edible dry whey shall contain not more than 50,000 bacteria per gram, not more than 1.25 percent of milk fat, not more than 5.00 percent of moisture, and not more than 0.16 percent of titratable acidity.
The alkalinity of ash which is contained in extra grade edible dry whey shall not exceed 225 ml. 0.1 normal hydrochloric acid (0.1 N HCl) per 100 grams. The scorched particle content shall be not more than 15.0 mg. and the solubility index shall be not more than 1.25 ml.
Extra grade edible dry whey shall have a uniform light color, free from lumps that do not break up under moderate pressure, and practically free from brown and black scorched particles.
Each container of extra grade edible dry whey shall be labeled with the full name of the product and with the word “pasteurized” when filled.
Buttermilk for drying shall be fresh, sweet and from the churning of sweet cream butter, with or without the addition of harmless lactic culture and unless cultured, shall be held at 45 degrees Fahrenheit or lower until processed. No neutralizing agent or chemical preservative may be added. The product shall be labeled “Extra Grade Dry Buttermilk.”
Modified dry whey means the class of foods manufactured from fresh, pasteurized, cheese whey by various processes and procedures under conditions prescribed by the director.
Safe and suitable substances, as defined in Section 130.3 of Title 21 of the Code of Federal Regulations, may be used in the chemical, physical, or microbial processing of whey during the manufacture of modified whey products.
The maximum standard plate count for modified dry whey shall not exceed 50,000 per gram, and the maximum coliform bacteria count shall not exceed 10 per gram. All other chemical, physical, and bacteriological standards for modified dry whey shall be consistent with, but shall not exceed, requirements established under the Federal Food, Drug, and Cosmetic Act.
Each container of modified dry whey shall be labeled “Modified Dry Whey.” The label shall also contain a descriptive term of the modification, approved in writing by the director, and a compositional analysis of the finished product. Except for bacterial counts, the compositional analysis shall include those values commonly associated with determining the grade of dry whey.
ARTICLE 13. Nonfat Dry Milk [38421. - 38421.]
Nonfat dry milk is a food that complies with Section 131.125 of Title 21 of the Code of Federal Regulations. Grade A nonfat dry milk shall contain not more than 30,000 bacteria per gram and not more than 10 coliform bacteria per gram. Manufacturing grade nonfat dry milk shall comply with standards of the United States Department of Agriculture.
ARTICLE 14. Milk Drink Mix [38451. - 38455.]
Milk drink mix is a market milk product. It shall contain not less than 12 percent total milk solids, not less than 4 percent butterfat, and not more than one-half of 1 percent of pure and harmless edible stabilizer.
Milk drink mix shall contain no milk or milk products except market milk and milk products which are derived from market milk.
Milk drink mix may contain sweetening and harmless flavoring and coloring.
Milk drink mix shall be pasteurized and shall contain not more than 75,000 bacteria per gram.
Each manufacturer of milk drink mix shall, upon request of the department, submit the names and delivery locations of all persons that receive milk drink mix from such manufacturer.
ARTICLE 16. Milk Drink [38511. - 38512.]
Milk drink is the product which is made from milk drink mix or UHT milk drink mix and which contains not less than 3.5 percent of milk fat nor more than 75,000 bacteria per gram.
No milk or milk products, except market milk, market skim milk, or market cream, shall be combined with, or added to, milk drink mix or UHT milk drink mix in the freezing device in the making of milk drinks.
ARTICLE 17. Milk, Reduced-Fat Milk, Lowfat Milk, or Light Milk, and Nonfat Milk, Skim Milk, or Fat-Free Milk with Lactobacillus Acidophilus Culture Added [38522. - 38523.]
Milk with lactobacillus acidophilus culture added, reduced-fat milk with lactobacillus acidophilus culture added, lowfat or light (lite) milk with lactobacillus acidophilus culture added, and nonfat or fat-free milk with lactobacillus acidophilus culture added means a market milk product that has been pasteurized, cooled to a temperature not exceeding 45 °F, and afterwards inoculated with a pure culture of lactobacillus acidophilus.
The manufacture, labeling, and sale of acidophilus milk and milk, reduced-fat milk, lowfat or light (lite) milk, and nonfat or fat-free milk with lactobacillus acidophilus culture added shall be in accordance with regulations adopted by the secretary after a hearing that is duly called. Interested parties shall be notified of the hearing.
ARTICLE 18. Modified Milk [38531. - 38531.]
Modified milk is market milk, evaporated milk, or powdered milk which has been altered in composition to conform to special nutritional requirements and which contains no fat or oil except milk fat.
ARTICLE 19. Cultured Milks [38541. - 38542.]
Cultured milks are foods that comply with Section 131.112 of Title 21 of the Code of Federal Regulations.
Every container in which buttermilk is sold shall be labeled with a label containing all of the following information:
The name and address of the distributor.
The factory license number of the manufacturer, if the manufacturer is not the distributor.
A statement that the product is pasteurized, if pasteurized.
A statement that the product is cultured.
A list of ingredients added, such as salt, stabilizers, and flavoring.
If the principal label uses descriptive modifying terms, such terms shall not be false or misleading.
ARTICLE 21. Pasteurized Concentrated Milk [38601. - 38602.]
Pasteurized concentrated milk is market milk which has been reduced to a semiliquid state by the removal of a portion of its water content by the aid of heat or the product derived from combining concentrated skim milk derived from market milk with market cream. It shall contain not less than 9.9 percent of milk fat and not less than 24 percent of milk solids not fat. It shall otherwise meet and be subject to all the requirements and standards for market milk, except as follows:
It may be pasteurized before concentration but shall be pasteurized after concentration.
It shall contain not more than 20,000 bacteria per gram.
Pasteurized concentrated milk shall be packaged in containers other than hermetically sealed containers.
ARTICLE 22. Concentrated Skim Milk [38631. - 38633.]
Concentrated skim milk is skim milk which is derived from market milk that has been reduced to a semiliquid state by the removal of a portion of its water content by the aid of heat.
Concentrated skim milk shall contain not less than 24 percent of milk solids not fat.
When concentrated skim milk is made entirely from grade A milk, its manufacturer may label it grade A.
ARTICLE 23. Flavored Milk [38651. - 38655.]
Flavored milk is market milk to which has been added a stabilizer, sugar, syrup, or flavor made from wholesome ingredients. Flavored milk may be sold as flavored milk, flavored reduced-fat milk, flavored lowfat or light (lite) milk, flavored high nutrient lowfat milk, and flavored nonfat skim or fat-free milk. Flavored milk shall be labeled with the name of the product. The principal flavor may be substituted for the word “flavored” in the name of the product as, for example, “chocolate nonfat milk” in substitution for “flavored nonfat milk.” Flavored milk shall be so colored or contain ingredients that cause it to differ distinctly from milk in appearance and other characteristics.
Flavored milk is pasteurized, homogenized milk which meets all standards and requirements which are specified in this division for pasteurized, homogenized milk, and which are specified in Section 38651, except flavored milk shall contain not less than 3.25 percent milk fat.
Flavored milk made from goat milk need not be homogenized, and shall contain not less than 2.8 percent fat.
Flavored lowfat milk shall contain not more than 1.2 percent milk fat. Flavored reduced-fat milk shall contain not more than 2.1 percent milk fat, and shall otherwise meet all standards and requirements that are specified in this division for lowfat or reduced-fat milk, and which are specified in Section 38651.
Flavored nonfat skim or fat-free milk shall contain not more than twenty hundredths of 1 percent of milk fat, and shall otherwise meet all standards and requirements that are specified in this division for skim milk, nonfat milk or fat-free milk, and which are specified in Section 38651.
Flavored high nutrient lowfat milk shall contain not more than 1.2 percent milk fat, and shall otherwise meet all standards and requirements which are specified in this division for high nutrient lowfat milk, and which are specified in Section 38651.
ARTICLE 25. Sour Cream [38671. - 38671.]
Sour cream is a food that complies with Section 131.160 of Title 21 of the Code of Federal Regulations. Sour cream shall contain not more than 10 coliform bacteria per gram.
ARTICLE 26. Sour Cream Dressing [38701. - 38703.]
Sour cream dressing is a product which is made from pasteurized market cream, with added milk solids derived from market milk, to which any strain, or two or more strains, of lactic acid producing organisms has been added to give it a distinct lactic acid flavor. It shall contain not less than 16 percent of milk fat and not less than 24 percent of total milk solids. It may contain salt and harmless edible stabilizers, emulsifiers, and coagulating enzymes as specified in Title 21 of the Code of Federal Regulations.
Sour cream dressing shall be labeled with the term “sour cream dressing” and with the name and address of the distributor.
At the time of sale to consumers, sour cream dressing shall be in containers of at least 12-gallon or 4-pound capacity.
ARTICLE 27. Yogurt [38731. - 38732.]
Yogurt is a food that complies with Section 131.200 of Title 21 of the Code of Federal Regulations. Yogurt shall contain not more than 10 coliform bacteria per gram, and shall contain not more than 10 colonies per gram each of molds, yeasts, and other fungi.
Whipped topping made from nonfat yogurt shall comply with the following standards:
The product shall contain not less than 25 percent nonfat yogurt by weight.
The product shall contain edible oil or fat other than milkfat and not less than 4 percent or more than 10 percent edible oil or fat from all sources.
The product shall be sold in the frozen state and thawed prior to use. It shall weigh not less than two pounds per gallon.
The product may contain nutritive carbohydrate sweeteners and may be characterized by the addition of flavoring ingredients.
The product may contain harmless edible stabilizers and emulsifiers as specified in Title 21 of the Code of Federal Regulations.
The product may contain fruit juices, harmless flavoring, and harmless coloring.
The product shall be pasteurized.
ARTICLE 29. Light Cream, Heavy Cream, Whipping Creams, and Whipped Cream [38761. - 38765.]
For the purposes of this article light cream, light whipping cream, heavy cream, and whipped cream are market cream products and shall contain not more than 20,000 bacteria per gram and not more than 10 coliform bacteria per gram.
Light cream, coffee cream, or table cream is a food that complies with Section 131.155 of Title 21 of the Code of Federal Regulations.
Light whipping cream or whipping cream is a food that complies with Section 131.157 of Title 21 of the Code of Federal Regulations.
Heavy cream or heavy whipping cream is a food that complies with Section 131.150 of Title 21 of the Code of Federal Regulations.
Whipped cream is a food that complies with Section 131.25 of Title 21 of the Code of Federal Regulations.
ARTICLE 31. Eggnog [38791. - 38791.]
Eggnog is a food that complies with Section 131.170 of Title 21 of the Code of Federal Regulations. Eggnog shall contain not more than 20,000 bacteria per gram and not more than 10 coliform bacteria per gram.
ARTICLE 35. Milk Products Made by Acidified Processes [38861. - 38861.]
Acidified milk products are foods that comply with Section 131.111 or 131.162 of Title 21 of the Code of Federal Regulations.
ARTICLE 36. Kefir Milk—A Cultured Milk [38871. - 38874.]
Market milk or market milk combined with nonfat milk from market milk, with or without added market milk solids, flavoring, or seasoning, which is certified raw milk or has been pasteurized and afterwards fermented by Lactobacillus bulgaricus, Lactobacillus acidophilus, and Lactobacillus caucasicus may be sold as kefir, reduced-fat kefir, lowfat or light (lite) kefir, or nonfat, skim, or fat-free kefir, or such names as may be characteristic for the product and approved by the secretary. The product may contain harmless edible stabilizers not to exceed six-tenths of 1 percent. It shall contain no more than 10 coliform bacteria per gram and shall be free of molds, yeasts, and other fungi, and other objectionable bacteria that may impair the quality of the product.
Kefir shall contain not less than 3.5 percent milk fat. Reduced-fat kefir shall contain not more than 2.1 percent milk fat. Lowfat kefir shall contain not more than 1.2 percent milk fat. Nonfat, skim, or fat-free kefir shall contain a maximum of twenty hundredths of 1 percent milk fat.
Kefir made from goat milk shall contain not less than 2.8 percent of milk fat.
When offered for sale, kefir, reduced-fat kefir, lowfat or light (lite) kefir, and nonfat, skim, or fat-free kefir shall be labeled, on a principal panel of the container, with the name of the product, the name and address of the manufacturer or distributor, and a statement whether it is made from pasteurized milk or certified raw milk. If the name and address of the distributor are used, the factory license number of the manufacturer shall also appear on the carton or container. Kefir shall be labeled “Kefir a Cultured Milk.” Reduced-fat kefir shall be labeled “Reduced-fat Kefir a Cultured Milk.” Lowfat or light (lite) kefir shall be labeled “Lowfat Kefir a Cultured Milk” or “Light (Lite) Kefir a Cultured Milk.” Nonfat, skim, or fat-free kefir shall be labeled “Nonfat Kefir a Cultured Milk,” “Skim Kefir a Cultured Milk,” or “Fat-free Kefir a Cultured Milk.”
Kefir, reduced-fat kefir, lowfat or light (lite) kefir, or nonfat, skim, or fat-free kefir, in liquid form, and with or without fruit added, shall be made from market milk and may be labeled as “Certified Raw,” “Certified Pasteurized,” or “Grade A.”
ARTICLE 37. Fruit Kefir—A Cultured Milk [38875. - 38876.]
Fruit kefir is kefir, reduced-fat kefir, lowfat or light (lite) kefir, or nonfat, skim, or fat-free kefir that contains not less than 8 percent by weight of clean, mature, sound fruit or its equivalent in other forms. The milk fat content of fruit kefir shall be not less than 2.8 percent. Lowfat or light (lite) fruit kefir shall contain not more than 1.2 percent milk fat. Reduced-fat kefir shall contain not more than 2 percent of milk fat. Nonfat, skim, or fat-free fruit kefir shall contain a maximum of twenty hundredths of 1 percent milk fat. Harmless coloring may be added to fruit kefir.
The milk fat content of fruit kefir made from goat milk shall not be less than 2.0 percent.
When fruit is added to kefir, reduced-fat kefir, lowfat or light (lite) kefir, or nonfat, skim, or fat-free kefir, the name of the fruit shall appear on a panel of the carton or container immediately preceding the name of the product.
The words “Certified Raw,” “Certified Pasteurized,” or “Grade A” when used in the label of the product, shall precede the name of the fruit.
Fruit kefir in its composition and labeling shall otherwise comply with all the requirements of Article 36 (commencing with Section 38871).
ARTICLE 38. Lactose Reduced Milk, Reduced-Fat Lactose Reduced Milk, Lactose Reduced Lowfat or Light Milk, and Lactose Reduced Nonfat, Skim, or Fat-Free Milk [38881. - 38881.]
Lactose reduced milk, reduced-fat lactose reduced milk, lactose reduced lowfat or light (lite) milk, and lactose reduced nonfat, skim, or fat-free milk are market milk products resulting from the treatment of milk, reduced-fat milk, lowfat or light (lite) milk, or nonfat, skim, or fat-free milk by the addition of safe and suitable enzymes to convert sufficient amounts of the lactose to glucose or galactose so that the remaining lactose is less than 30 percent of the lactose in milk, reduced-fat milk, lowfat or light (lite) milk, or nonfat, skim, or fat-free milk.
ARTICLE 39. Fromage Frais or Soft Fresh Cheese [38885. - 38888.]
Nonfat market milk, with or without added market milk solids, which has been pasteurized and afterwards fermented by one or more strains of streptococcus lactis, streptococcus cremoris, streptococcus diacethylactis, or leuconostoc sp., and rennet with or without pasteurized market cream, flavoring, or seasoning may be sold as fromage frais or soft fresh cheese. These products may contain nutritive carbohydrate sweeteners. They shall contain no more than 10 coliform bacteria per gram.
Fromage frais or soft fresh cheese shall have at least 70 percent of the lactose in the original milk solids removed through the whey. Fromage frais or soft fresh cheese shall have a maximum dry matter content of 24.5 percent prior to the addition of any bulky flavors.
Fromage frais or soft fresh cheese, without the addition of bulky flavors, shall contain not less than 3.5 percent of milk fat.
Fromage frais or soft fresh cheese made from goat milk, without the addition of bulky flavors, shall contain not less than 2.8 percent of milk fat.
When offered for sale, fromage frais or soft fresh cheese shall be labeled on a principal panel of the container, with the name of the product, the name and address of the manufacturer or distributor. If the name and address of the distributor are used, the factory license number of the manufacturer shall also appear on the carton or container. Fromage frais or soft fresh cheese shall be labeled as “fromage frais” or “soft fresh cheese.”
ARTICLE 40. Bulky Flavored Fromage Frais or Bulky Flavored Soft Fresh Cheese [38891. - 38892.]
Bulky flavored fromage frais or bulky flavored soft fresh cheese is fromage frais or soft fresh cheese that contains clean, mature, sound fruit or its equivalent in other forms, or other bulky flavoring ingredients.
When bulky flavor is added to fromage frais or soft fresh cheese, the name of the bulky flavor shall accompany the name of the product on the principal panel or panels of the label. Bulky flavored fromage frais or bulky flavored soft fresh cheese in its composition and labeling shall otherwise comply with all the requirements of Article 39 (commencing with Section 38885).
ARTICLE 41. Lactose Reduced Dairy Products [38895.1. - 38895.2.]
Safe and suitable enzymes, as approved by the director, may be added to dairy products for the purpose of conversion of lactose to glucose or galactose. Any added enzyme shall appear in the ingredient list of the product.
“Lactose reduced” may be included in the nomenclature of the product if there has been conversion of sufficient amounts of lactose to glucose or galactose so that the remaining lactose is less than 30 percent of the original lactose of the dairy product. Lactose reduced dairy products shall meet all other compositional standards for the products except that the minimum solids-not-fat content for reduced-fat, lowfat, or light (lite) milk, and flavored reduced-fat, lowfat, or light (lite) milk, labeled as “lactose reduced” shall be 8.7 percent.
CHAPTER 6. Products Resembling Milk Products [38901. - 38992.]
ARTICLE 1. General Provisions [38901. - 38908.]
The production and distribution of products resembling milk products, is hereby declared to be a business affected with a public interest. The provisions of this chapter are enacted in the exercise of the police powers of this state for the purpose of protecting the health, safety, and welfare of the people of this state.
The Legislature further finds and declares all of the following:
There is an increasing advent into the marketplace of food products which in appearance, taste and other physical characteristics resemble milk products, which are frequently mistaken by consumers for milk and milk products, which are used for the same or similar purposes as milk and milk products, which are frequently manufactured, transported and sold in the same places as milk and milk products, which are frequently packaged in the same types, sizes and shapes of containers as milk and milk products, which are suitable media for the growth and multiplication of micro-organisms; but which food products contain fats and oils other than milk fat in combination with milk products or contain no milk products.
It is necessary in order to prevent and avoid false, misleading and deceptive marketing of such products resembling milk products, and in order to prevent deception and confusion among consumers, and in order to protect public health, that this chapter be enacted, and that the director from time to time promulgate regulations governing the labeling, identification and sanitary production of all such products.
This chapter does not apply to:
Margarine, dairy spread, or spread subject to Chapter 8 (commencing with Section 39351).
A distinctive proprietary food compound which complies with all of the following requirements:
Not readily mistaken in taste for milk, or for evaporated, skim, condensed, or dried milk.
Prepared and designed for feeding infants and young children.
Sold exclusively by druggists, orphanages, child welfare associations, hospitals, and similar institutions or for shipment outside of this state.
Imitation ice cream and ice milk subject to Chapter 7 (commencing with Section 39151).
Any product resembling a milk product which resembling product is subjected to a temperature high enough to sterilize the product and is packaged in an hermetically sealed container.
Imitation cheese or substitute for cheese are subject to the provisions of this chapter.
Nondairy frozen dessert is subject to the provisions of this chapter.
Except as provided in this section, no products resembling milk products shall be used in any of the charitable or penal institutions that receive assistance from the state. If the state is informed in writing that government holdings of milk or milk products cannot be purchased or acquired by the state, the Department of General Services may purchase for use in state institutions such products if requested to do so by the director of the department which has control of any state institutions for which such product is intended.
It is unlawful for a restaurant or any other place where food is served to the public for consumption on the premises to misrepresent products resembling milk products as milk products.
If a provision of this chapter and a provision of the Health and Safety Code are applicable to the same person and subject matter, the provisions of this chapter shall prevail.
If any article, section, subdivision, sentence or clause of any provision of this chapter is for any reason adjudged unconstitutional or unenforceable, such decision does not affect the validity of the remaining provisions of this chapter. The Legislature hereby declares that it would have enacted all provisions of this chapter irrespective of the fact that one or more of such provisions is adjudged unconstitutional or unenforceable.
The provisions of this chapter shall not be construed as necessitating any alterations or deviations in the normal and traditional methods of manufacturing, distributing, and selling products resembling milk products, except insofar as such methods specifically violate provisions of this chapter.
ARTICLE 2. Definitions [38911. - 38915.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Products resembling milk products” means any food product for human consumption, except those referred to in Section 38903, which has the appearance, taste, smell, texture or color of a milk product and which, taken as a whole, bears resemblance to a milk product, could be mistaken for a milk product, or could be used as a substitute for a milk product.
“Imitation milk product” means a product resembling a milk product which contains oils, fats, or other ingredients, other than milk or milk products, in combination with milk or milk products. An imitation milk product may be referred to as a “filled product,” or by such other name or names as may be established from time to time by the director by regulation.
“Nondairy product” means a product resembling a milk product, but which nondairy product contains no milk or milk solids.
ARTICLE 3. Standards [38924. - 38926.5.]
The director shall adopt regulations providing for the healthfulness and standard of purity of products resembling milk products. The regulations shall be those reasonably necessary to ensure that the products are safe for human consumption under the circumstances under which they are likely to be offered for sale and consumed. The standards of purity, including bacterial standards, shall not be less than those of the milk products imitated or substituted.
When the use of market milk or any derivative or component of market milk is required in any milk product, any fluid milk, fluid skim milk, fluid cream, milk fat or milk solids used in an imitation milk product imitating the milk product shall be market milk.
Nondairy frozen dessert shall comply with the following standards:
The product shall contain not less than one-half of 1 percent of edible oil or fat other than milk fat.
The product shall contain 1.3 pounds of food solids per gallon at the time of sale to the consumer.
The product may contain harmless edible stabilizers and emulsifiers as specified in Title 21 of the Code of Federal Regulations.
The product may contain nutritive carbohydrate sweeteners.
The product may contain fruit or fruit juices, nut meats, harmless flavoring, and harmless coloring.
The product shall not contain more than 75,000 bacteria or 10 coliform bacteria per gram.
Nondairy frozen dessert mix is a product in a final, dry, or concentrated form used in the manufacture of nondairy frozen dessert. It shall comply with all the requirements of nondairy frozen dessert. It shall have been pasteurized or otherwise subjected to a process that has been proven, to the satisfaction of the director, to be equally effective.
ARTICLE 4. Plant Licensing [38931. - 38937.]
It is unlawful to engage in the manufacture of products resembling milk products, unless a license for the then current calendar year for each separate plant or place used for such business is issued by the director pursuant to this article.
Applications for a license shall be in the form which shall be prescribed by the director.
The application shall be accompanied by a fee of one hundred dollars ($100). The fee shall be prorated on a monthly basis for any licensee that commences operations after the first quarter in any calendar year whether or not such plant was licensed during the preceding calendar year.
The director shall issue to each applicant that satisfies the requirements of this chapter a license which entitles the applicant to manufacture, sell, or distribute products resembling milk products for the then current calendar year for which the license is issued, unless the license is sooner revoked or suspended.
The license shall expire at the end of each calendar year, but shall remain in force during the month of January of the next succeeding year or such part of the month as may be necessary for the renewal of the license by the director.
It is unlawful for any person to sell, give away, deliver, or to knowingly purchase or receive any product resembling milk products which has been produced in a plant that is in an insanitary condition, or that is handled by any carrier or any store or depot that is in an insanitary condition.
ARTICLE 5. Product Registration [38941. - 38946.]
Any person engaged in the manufacture of products resembling milk products, shall register the products with the department as provided by this article.
Application for a registered product shall be in the form which shall be prescribed by the department and shall include the ingredients of the product, and the proposed label or labels for the product. The director shall grant such application if he determines that the product will comply or has complied with the provisions of this chapter.
The application shall be accompanied by a fee of twenty-five dollars ($25). The information required by Section 38942 shall be kept current and amended whenever any change is made.
Each registration which has been approved expires on December 31st of the second year after it was approved and may be renewed for two years by payment of a renewal fee of ten dollars ($10). The renewal shall be made on forms which are supplied by the director.
No product resembling milk products shall be sold unless it has an active registration on file with the department.
If renewal of any registration is not made within 60 days after expiration of the registration, the registration becomes null and void.
In addition to any other penalty, the department may revoke or suspend the registration of any product resembling milk products for any violation of this chapter or the regulations adopted pursuant to this chapter.
All product registration made pursuant to this article shall be confidential. No information contained in the application for any such registration, or in the registration, shall be divulged by the director except if necessary for the proper determination of any court proceedings or hearing before the director.
ARTICLE 6. Labels [38951. - 38956.]
Any person or association or corporation engaged in the manufacture, sale, or distribution of products resembling milk products shall label such products in accordance with the provisions of this article and with regulations which shall be adopted by the director. The labels may be submitted to the director for approval.
Each container which contains a product resembling a milk product, shall be labeled with the name and address of the manufacturer or distributor, and in the event the address is not the address of the manufacturer or final packaging plant, the label shall include the national uniform federal information processing standards state code number to be immediately followed by a hyphen and the plant number assigned by the appropriate state regulatory agency. The list of ingredients of any product resembling a milk product shall be immediately preceded by the product name, such as “Imitation ____,” “Nondairy Product,” “Filled Product,” or any other applicable term the director has established for the products by regulation. In addition, the director may, by regulation, require any other information to be included on the label which the director determines to be in the public interest.
Any product labeled as a “nondairy product” and containing one or more ingredients derived from milk shall clearly indicate upon such label, in a manner established by the director through regulation, which ingredients are milk derivatives.
An imitation milk product, the composition and physical characteristics of which closely resemble those of a milk product or a specified variety of a milk product may be labeled “imitation,” followed by the name of the milk product imitated; for example, “imitation milk,” “imitation coffee cream,” “imitation cheddar cheese.”
An imitation milk product, the composition and physical characteristics of which do not closely resemble those of a milk product or a defined variety of a milk product shall be labeled as “imitation” or “filled” or by any other term approved by the director, followed by a term which generally describes that category of milk product; for example, “imitation milk product,” “imitation cream product,” “imitation cheese product.”
Labels or products resembling milk products may contain references and comparisons of the products with milk products as long as such statements are reasonable, relevant, truthful, complete, and not deceptive or misleading. The director may require satisfactory proof of the compliance of any statement with the provisions of this section.
On the labels of imitation milk products the use of pictures and symbols depicting dairy or agricultural activities, or associating the product with such activities, and use of dairy or agricultural terms or words, or derivations or cognates thereof, shall be subject to restriction or prohibition by the director by regulation. The basis for such regulations shall be the degree to which such symbols or words make or fail to make a significant contribution to a truthful and complete representation of the product, or appear to be likely to be deceptive and misleading to the purchaser.
Nondairy product containers and labels shall not contain any combination of words, symbols, marks, designs, or representations commonly used or associated with the sale, advertising, or distribution of milk products. The labels shall not contain statements regarding milk products except those permitted by Section 38954 and any necessary factual statement regarding any ingredient milk products.
ARTICLE 7. Advertising and Display [38971. - 38972.]
No product resembling a milk product shall be advertised, displayed for sale, or sold in any manner or under any circumstances or conditions that is likely to mislead, deceive, or confuse consumers into believing such products are milk products.
The director may adopt regulations to enforce the provisions of this article. In adopting the regulations, the director shall consider and follow, insofar as practical, the provisions of Sections 38952, 38954, 38955, and 38956, as well as any other relevant considerations. In addition the director may distinguish between different products or types of products on the basis of the nature of the product, its labeling, the manner in which it is customarily presented or is likely to be presented to the consumer, and any other relevant factors, if he or she determines the differentiation is warranted and in the public interest.
ARTICLE 8. Administration [38981. - 38987.]
The director shall enforce the provisions of this chapter.
The director may adopt any regulations necessary for the implementation and adequate enforcement and administration of the provisions of this chapter and that he determines are necessary to protect the public health and to prevent deception and confusion among consumers.
The regulations shall be adopted after a public hearing in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
Notwithstanding any other provisions of this chapter to the contrary, the director shall by regulation waive any of the provisions of this chapter as they apply to products resembling milk products manufactured for sale and distribution exclusively outside of this state, provided that the regulations contain provisions ensuring that the products will not be made available or sold to consumers in this state.
If the director determines that fees established to enforce and administer this chapter exceed the cost of enforcing and administering this chapter, he or she may by regulation reduce the fees accordingly. If he or she determines that the fees are insufficient to defray the costs, he or she may use funds for the administration and enforcement of this chapter which are collected from producers and distributors pursuant to Article 14 (commencing with Section 62211) of Chapter 2 of Part 3 of Division 21 and which have been appropriated from the Department of Food and Agriculture Fund for this purpose.
Any moneys which are received by the director or the department pursuant to this chapter shall be paid into the State Treasury to the credit of the Department of Agriculture Fund to be expended as provided by the provisions of this chapter.
ARTICLE 9. Civil Remedies and Penalties [38991. - 38992.]
The director may bring an action to enjoin the violation, or the threatened violation, of any provision of this chapter or any regulation adopted under this chapter in the superior court in the county in which the violation occurs or is about to occur. There may be enjoined in one proceeding any number of defendants alleged to be violating the same provisions or regulations, although their properties, interests, residences, or places of business may be in several counties and the violations separate and distinct. Any proceeding which is brought pursuant to this section shall be governed in all other respects by the provisions of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure.
Any person that violates any provision of this chapter or any regulation adopted under this chapter, is liable civilly in the amount of five hundred dollars ($500) for each and every violation. The penalty is to be recovered by the director in any court of competent jurisdiction. Any sum which is recovered under this section shall be deposited in the State Treasury to the credit of the Department of Food and Agriculture Fund.
CHAPTER 7. Imitation Ice Cream and Ice Milk [39151. - 39214.]
ARTICLE 1. General Provisions [39151. - 39153.]
The ingredients, except fruits, nuts, and flavors, which are used in the manufacture of imitation ice cream or imitation ice milk, shall be pasteurized.
Imitation ice cream and imitation ice milk shall otherwise be manufactured, advertised, and sold pursuant to regulations which are adopted by the director.
It is unlawful for any person to sell imitation ice cream or imitation ice milk in bulk for purpose of resale.
ARTICLE 2. Imitation Ice Cream and Ice Milk Standards [39181. - 39184.]
Imitation ice cream and imitation ice milk are substances, mixtures, or compounds which are made in the imitation of, or which have the appearance of, ice cream or ice milk, and which contain any edible oil or fat, except milk fat, or which contain solids other than milk solids not fat except stabilizer, fruits, nuts, chocolate syrup, or sweetening.
Imitation ice cream shall contain not less than 10 percent of edible oil or fat.
Imitation ice milk shall contain not less than 2 percent of edible oil or fat, and harmless edible stabilizer as specified in Title 21 of the Code of Federal Regulations.
Imitation ice cream or imitation ice milk, at the time of sale by the manufacturer or retailer, shall not contain more than 75,000 bacteria per gram. Imitation ice cream and imitation ice milk shall otherwise conform to the composition and weight requirements which are specified in regulations of the director.
ARTICLE 3. Labels and Signs [39211. - 39214.]
Every container of imitation ice cream or imitation ice milk shall be conspicuously so labeled, and every place where imitation ice cream or imitation ice milk is sold, shall display a conspicuous, legible sign which contains the words “imitation ice cream sold here” or “imitation ice milk sold here”, as the case may be, in plain, block letters that are not less than six inches high. The sign display requirements of this section shall not apply to any place, except any vending machine whether mobile or otherwise, where imitation ice cream or imitation ice milk is sold in properly labeled consumer packages or containers for off-premises consumption.
If a trade name is used on any vehicle which conveys, or any place where imitation ice cream or imitation ice milk is sold, the words “imitation ice cream” or “imitation ice milk”, shall be the same size as the largest letters used in the trade name and as conspicuously placed. In no case shall the letters in the words “imitation ice cream” or “imitation ice milk” be less than six inches high.
A person shall not use the name “creamy,” “creamery,” or “dairy,” or the representation of a cow or any breed of dairy cattle, or any combination of such words, symbols, marks, designs, or representations commonly used in the sale, advertising, or distribution of ice cream.
Milk shakes, malted milks, or malts, as such terms are commonly used in the restaurant, confectionary, or soft drink trade shall not be made from imitation ice cream or imitation ice milk or served to any customer for consumption upon the premises where they are made unless there is displayed upon such premises and visible to all customers a sign, which, as the case may require, shall read: “Imitation ice cream used in the milk drinks served here” or “Imitation ice milk used in the milk drinks served here.”
Each such sign shall be printed in plain block letters not less than six inches high.
CHAPTER 8. Margarine, Dairy Spread, and Spread [39351. - 39521.]
ARTICLE 1. General Provisions [39351. - 39353.]
Except as otherwise provided, the provisions of this code which relate to margarine, dairy spread, or spread are likewise applicable to colored margarine, colored dairy spread, or colored spread.
It is unlawful for any person knowingly to ship, or for any carrier for hire knowingly to receive for shipment, any margarine, dairy spread, or spread unless it is labeled in conformity with this chapter and shipped and receipted for in its true name, or unless it is in transit between foreign states.
It is unlawful for any person knowingly to possess or have under his or her control any margarine, dairy spread, or spread, except for actual consumption by himself or herself or his or her family, unless it is labeled in conformity with this chapter.
ARTICLE 2. Labeling of Shipping Containers [39381. - 39382.]
Each person that manufactures any margarine, dairy spread, or spread shall comply with this article.
There shall be printed, stamped, or stenciled in a clear and durable manner upon one side of each tub, firkin, box, or other outer package in which margarine, dairy spread, or spread is removed from the place where it is produced or put up, as distinguished from the package in which it is to be put up for sale or sold at retail, all of the following:
The words “oleomargarine,” “margarine,” “dairy spread,” or “spread,” as the case may be, in plain roman letters of not less than 36-point type.
A statement, which is printed in plain roman type, of a size not smaller than pica, which states the name and address of the manufacturer or of the distributor.
ARTICLE 3. Labeling of Retail Packages [39411. - 39411.]
It is unlawful for any person to sell any margarine, dairy spread, or spread, unless there is printed upon the label of each and every package, or other container in which the margarine, dairy spread, or spread is put up for sale or sold at retail all of the following:
The words “oleomargarine,” “margarine,” “dairy spread,” or “spread,” as the case may be, in letters which are at least as large as any other type or lettering on the label. The word “oleomargarine,” “margarine,” “dairy spread,” or “spread” shall be of a color in strong contrast to the color of the container.
The name and address of the manufacturer or distributor.
The net weight of the contents.
A full and accurate statement of all the ingredients which are contained in the substance in the package.
ARTICLE 4. Misrepresentation [39431. - 39432.]
A person shall not sell or take orders for the future delivery of any margarine, dairy spread, or spread under the name of butter, or under the pretense that the substance is butter.
A person shall not, in connection or association with the sale or advertisement of any margarine, dairy spread, or spread represent or suggest by any means whatsoever that the substance is a dairy product. Nothing contained in this section shall, however, prevent an accurate and full statement of all of the ingredients which are contained in such substance.
ARTICLE 6. Margarine [39471. - 39471.]
Margarine (oleomargarine) is a substitute for butter which contains not less than 80 percent edible oils or fat and otherwise conforms to Part 166 (commencing with Section 166.40) of Title 21 of the Code of Federal Regulations.
ARTICLE 7. Colored Margarine, Dairy Spread, or Spread [39491. - 39491.]
Colored margarine, dairy spread, or spread is margarine, dairy spread, or spread which has a tint or shade that contains more than 1.6 degrees of yellow, or of yellow and red collectively, but with an excess of yellow over red, measured in terms of the Lovibond tintometer scale or its equivalent.
ARTICLE 8. Dairy Spread [39501. - 39502.]
Dairy spread is a substitute for butter which is made from a blend of milkfat, cultured buttermilk, milk solids-not-fat, and edible oil or fat, other than milk fat. Dairy spread may contain one or more of the following optional ingredients: salt, harmless flavor and color, any safe and suitable stabilizers and emulsifiers, and vitamins.
Dairy spread shall contain a minimum of 40 percent fat and a minimum of 15 percent milk solids-not-fat; (60 percent of the blended fat ingredients shall be of milk fat origin) and may contain not more than 0.01 percent potassium sorbate to retard spoilage. Dairy spread shall be pasteurized.
ARTICLE 9. Spread [39521. - 39521.]
Spread is a substitute for butter consisting of mixtures of compounds which may include milk solids-not-fat and edible oils and fats that is made in imitation or semblance of butter and does not meet the definition for margarine or dairy spread.
CHAPTER 9. UHT Milk Products [39701. - 39842.]
ARTICLE 1. General Provisions [39701. - 39702.]
“UHT” when used to describe a dairy product or a product resembling a milk product means that the product has been hermetically sealed in a container and so thermally processed in conformance with Section 113 of Title 21 of the Code of Federal Regulations and the provisions of the Grade A Pasteurized Milk Ordinance as to render the product free of microorganisms capable of reproducing in the product under normal nonrefrigeration conditions of storage and distribution. The product shall be free of viable microorganisms, including spores, of public health significance. UHT products, as defined in this chapter, shall meet the definition for aseptically processed milk and milk products in the Grade A Pasteurized Milk Ordinance.
All products defined in this chapter shall be labeled in accordance with the applicable general labeling requirements of the Grade A Pasteurized Milk Ordinance for aseptically processed milk and milk products.
Except as otherwise provided in this section, all products defined in this chapter shall conform to the labeling requirements for market milk and applicable labeling provisions of the Code of Federal Regulations.
ARTICLE 2. UHT Milk and Cream [39711. - 39715.]
UHT milk and UHT cream is market milk or market cream processed and packaged pursuant to Section 39701. A harmless edible stabilizer as specified in Title 21 of the Code of Federal Regulations may be added to UHT milk or UHT cream.
UHT milk or UHT cream shall be made from market milk or market cream which meets all the requirements of this division for the respective class or grade of milk and cream which is used. However, the milk or cream need not be cooled if it has been demonstrated to the satisfaction of the director that this cooling is not required for the proper processing of the product.
UHT milk shall contain not less than 3.25 percent milk fat and not less than 8.25 percent milk solids-not-fat.
UHT cream shall contain not less than 18 percent milk fat.
UHT milk or UHT cream which has been altered in composition to conform to special nutritional requirements or special dietary purposes shall include “modified” in its name. If the alteration is due to the use of additives, the additives shall be approved by the director and shall be stated on the label.
ARTICLE 3. UHT Reduced-Fat Milk and UHT Lowfat or Light Milk [39721. - 39723.]
UHT lowfat milk is market milk, evaporated market milk, condensed market milk, or dried market milk, or any combination thereof, processed and packaged pursuant to Section 39701. It may contain harmless edible stabilizers as specified in Title 21 of the Code of Federal Regulations. UHT lowfat milk shall be homogenized.
UHT reduced-fat milk shall contain not more than 2.1 percent milk fat and not less than 8.25 percent milk solids-not-fat. UHT lowfat or light (lite) milk shall contain not more than 1.2 percent milk fat and not less than 8.25 percent milk solids-not-fat.
Except as otherwise provided in this article, UHT lowfat milk shall meet all the standards and requirements which are specified in this division for market milk.
ARTICLE 4. UHT Nonfat Milk, Skim Milk, or Fat-Free Milk [39731. - 39733.]
UHT nonfat, skim, or fat-free milk is the product that results from the complete or partial removal of milk fat from market milk. It shall be processed and packaged pursuant to Section 39701. It may contain harmless edible stabilizers as specified in Title 21 of the Code of Federal Regulations. UHT nonfat milk shall be homogenized. The product may be called “nonfat milk,” “skim milk,” or “fat-free milk.”
UHT nonfat, skim, or fat-free milk shall contain not more than twenty hundredths of 1 percent of milk fat and not less than 8.25 percent milk solids-not-fat.
Except as otherwise provided in this article, UHT nonfat, skim, or fat-free milk shall meet all the standards and requirements that are specified in this division for market milk.
ARTICLE 5. UHT Flavored Milk [39741. - 39742.]
UHT flavored milk is market milk, evaporated market milk, condensed market milk, or dried market milk, or any combination of them, which contains harmless sweetening, chocolate, chocolate syrup, or other harmless syrup or flavoring, or any combination of these syrups or flavorings, and harmless edible stabilizers as specified in Title 21 of the Code of Federal Regulations. It is homogenized, processed, and packaged pursuant to Section 39701.
UHT flavored milk shall contain not less than 3 percent milk fat and not less than 1612 percent total solids.
ARTICLE 6. UHT Flavored Cream [39751. - 39752.]
UHT flavored cream is market cream to which nonfat dry milk solids derived from market milk have been added, which contains harmless flavoring or syrup, or any combination of harmless flavorings or syrups, and harmless edible stabilizers as specified in Title 21 of the Code of Federal Regulations and harmless stabilizing salts. It is homogenized, processed, and packaged pursuant to Section 39701.
UHT flavored cream shall contain not less than 20 percent milk fat.
ARTICLE 7. UHT Flavored Reduced-Fat Milk and UHT Flavored Lowfat or Light Milk [39761. - 39762.]
UHT flavored reduced-fat, lowfat, or light (lite) milk is market milk, evaporated market milk, condensed market milk, or dried market milk, or any combination thereof, which contains harmless sweetening, chocolate, chocolate syrup, or other harmless syrup or flavoring, or any combination of these syrups or flavorings, and harmless edible stabilizers as specified in Title 21 of the Code of Federal Regulations. UHT flavored reduced-fat, lowfat, or light (lite) milk shall be homogenized, processed, and packaged pursuant to Section 39701.
UHT flavored reduced-fat milk shall contain not more than 2.1 percent milk fat and not less than 8.25 percent milk solids-not-fat. UHT flavored lowfat or light (lite) milk shall contain not more than 1.2 percent milk fat and not less than 8.25 percent solids-not-fat.
ARTICLE 8. UHT Flavored Drink [39771. - 39771.]
UHT flavored drink is milk or skim milk, evaporated, condensed, or dried milk, or nonfat milk solids, or any combination thereof, which contains harmless sweetening, chocolate, chocolate syrup, or other harmless syrup or flavoring, or any combination of these syrups or flavorings, and harmless edible stabilizer as specified in Title 21 of the Code of Federal Regulations. It may be homogenized and shall be processed and packaged pursuant to Section 39701.
ARTICLE 9. UHT Half-and-Half [39781. - 39782.]
UHT half-and-half is a product consisting of market milk, market cream, nonfat dry milk derived from market milk, and market skim milk to which edible stabilizers and stabilizing salts may be added. It shall be processed and packaged pursuant to Section 39701.
UHT half-and-half shall contain not less than 10.5 percent milk fat and not more than six-tenths of 1 percent stabilizer by weight.
ARTICLE 10. UHT Sour Flavored Half-and-Half [39791. - 39792.]
UHT flavored reduced-fat sour cream is a product consisting of market milk, market cream, and market skim milk to which edible stabilizers, stabilizing salts, and acidified flavoring may be added. It shall be processed and packaged pursuant to Section 39701.
UHT sour flavored half-and-half shall contain not less than 9.4 percent milk fat and not more than six-tenths of 1 percent stabilizer by weight.
ARTICLE 11. UHT Sour Cream [39801. - 39802.]
UHT sour cream is market cream cultured with the addition of pure cultures of one or more strains of lactic acid bacteria. It may include one or more of the following optional ingredients: milk solids-not-fat derived from market milk, salt, or lactose. Harmless edible stabilizers and emulsifiers may be added to the extent required to accomplish the necessary physical effect. It shall be processed and packaged pursuant to Section 39701.
UHT sour cream shall contain not less than 18 percent milk fat and not less than one-half of 1 percent acidity, expressed as lactic acid.
ARTICLE 12. UHT Milk Drink Mix [39811. - 39812.]
UHT milk drink mix is a market milk product which has been processed and packaged pursuant to Section 39701.
UHT milk drink mix shall contain not less than 12 percent total milk solids, not less than 4 percent butterfat, and not more than one-half of 1 percent pure and harmless edible stabilizer by weight. It may contain sweetening and harmless coloring and flavoring.
ARTICLE 13. UHT Dairy Spread [39821. - 39822.]
UHT dairy spread is a product made from milk, cream, skim milk, or nonfat milk solids, or any combination thereof, to which may be added lactose, sodium caseinate, emulsifiers, stabilizers, stabilizing salts, and harmless coloring. The product shall be processed and packaged pursuant to Section 39701.
UHT dairy spread shall contain not less than 30 percent milk fat and not more than six-tenths of 1 percent stabilizer and emulsifier combined by weight, unless otherwise stated on the label.
ARTICLE 14. UHT Eggnog [39831. - 39833.]
UHT eggnog is an unfrozen product which is made with milk, cream, evaporated or condensed milk, evaporated or condensed skim milk, dry milk solids, nonfat dry milk solids, buttermilk, whey, lactose, lactalbumins, lactoglobulins, and modified whey, or any combination thereof, egg yolk or whole eggs, sweetening, and harmless flavoring with or without harmless coloring. Harmless edible stabilizers may be added. UHT eggnog may contain ingredients authorized by the director, by regulation, under Section 38791.5. It shall be processed and packaged pursuant to Section 39701.
UHT eggnog shall contain not less than 6 percent milk fat and not less than 8.25 percent milk solids-not-fat. It shall contain not less than one-half of 1 percent by weight of wholesome fresh egg yolk solids or the equivalent amount of egg yolk solids obtained from wholesome frozen egg yolks or from wholesome dried egg yolks or the equivalent amount in other approved form.
Except as otherwise provided in this article, UHT eggnog shall meet all the standards and requirements which are specified in this division for eggnog.
ARTICLE 15. UHT Flavored Nonfat Milk [39841. - 39842.]
UHT flavored nonfat, skim, or fat-free milk is market milk from which has been removed all or part of the milk fat and to which has been added any harmless syrup or flavoring, harmless sweetening, and harmless edible stabilizer. It is homogenized and processed and packaged pursuant to Section 39701. The product may be called “UHT flavored nonfat milk,” “UHT flavored skim milk,” or “UHT flavored fat-free milk” and the principal flavor may be substituted for the word “flavored” in the name of the product.
UHT flavored nonfat, skim, or fat-free milk shall contain not more than twenty hundredths of 1 percent of milk fat and not less than 8.25 percent of milk solids-not-fat.
CHAPTER 10. Dairy Beverages [39901. - 39912.]
Dairy beverages are milk and dairy food beverages resembling milk or milk products. However, dairy beverages do not conform to the compositional standards for milk or milk products as established in this code or Title 21 of the Code of Federal Regulations because they contain safe and suitable ingredients or combinations of ingredients not specified in those standards. Dairy beverages are products intended for consumption as a beverage. Milk or the components of milk shall comprise at least 15 percent of the product on a dry matter basis or at least 2 percent on a total weight basis.
For purposes of establishing compliance with the minimum dairy ingredient criteria, dairy ingredients shall include all products, components, and derivatives of milk, including, but not limited to, whey and whey products and caseinates specified in subdivision (c) of Section 135.110 of Title 21 of the Code of Federal Regulations, but excluding added lactose.
The product may not contain any added fats or oils other than milkfat, except those fats present in incidental amounts that are naturally occurring in, or contributed by, flavorings or characterizing food ingredients. When the product contains water as an ingredient, water shall be declared in the ingredient list.
The product shall be pasteurized, ultra-pasteurized, or UHT processed and packaged, pursuant to the specifications and procedures for the applicable process contained in the Code of Federal Regulations. The labeling shall comply with any applicable labeling requirements contained in the Code of Federal Regulations applicable to the heat treatment used on the product.
The product may be cultured with safe and suitable bacterial cultures following pasteurization, ultra-pasteurization, or UHT processing.
This article does not apply to any product regulated under Chapter 6 (commencing with Section 38901) as a product resembling a milk product or any dairy product for which a standard is established in this division.
The label of all products subject to this standard shall be submitted to the secretary for approval prior to sale. In addition to the labeling requirements specified in this article, the secretary may, by regulation, require or prohibit any other information, format, or design for the label that the secretary determines to be in the public interest.
The term “dairy beverage” or “a dairy beverage” may appear on the principal display panel of the product only when milk and the components or derivatives of milk comprise at least 30 percent of the product on a dry matter basis, or at least 4 percent on a total weight basis.
When the term “dairy beverage” or “a dairy beverage” appears on the principal display panel, it shall be in letters not exceeding the height of the largest letters on the principal display panel.
Notwithstanding subdivision (a), when the term “dairy beverage” or “a dairy beverage” appears on the information panel of the label of the product, it shall be clearly and conspicuously labeled in bold type and of a type size equal to that used in the ingredient list.
The product shall be labeled with a common or usual name of the beverage or a fanciful name that does not mislead, deceive, or confuse the consumer. Use of the name “dairy beverage” or “a dairy beverage” is restricted to products that conform to the requirements of Section 39907. The name shall not cause the consumer to believe that the product is a milk product for which a standard is established in this division.
Each container that contains the product shall be labeled with the name and address of the manufacturer or distributor, and in the event the address is not the address of the manufacturer or final packaging plant, the label shall include the national uniform federal information processing standards state code number to be immediately followed by a hyphen and the plant number assigned by the appropriate state regulatory agency.
If the product is labeled “Grade A,” all dairy ingredients shall be derived from market milk.
The label of the product may contain references to, and comparisons with, a milk product if those statements, symbols, marks, designs, or representations are reasonable, relevant, truthful, complete, and not deceptive or misleading. The secretary may require satisfactory proof of the compliance of any label with this section.
No product subject to this standard shall be advertised, displayed for sale, or sold in any manner or under any circumstances or conditions that are likely to mislead, deceive, or confuse consumers into believing the products are products defined in this division. The secretary may require satisfactory proof of the compliance of a dairy beverage with this section.
DIVISION 16. CERTIFICATION, PROCESSING AND CANNING, AND CANNED FOODS [40501. - 41867.]
CHAPTER 1. Certification of Agricultural Products [40501. - 40577.5.]
ARTICLE 1. General Provisions [40501. - 40502.]
This chapter does not apply to any investigation which is made or any certificate which is issued by any of the following:
Any person, firm, or corporation in respect to canned or dried fruit which is shipped, packed, or stored by it.
Any bona fide chamber of commerce, board of trade, or other bona fide nonprofit association of producers or merchants in respect to canned or dried fruit which is sold, shipped, packed, or stored by any of its members or other persons for whom it may make any such inspection or issue any such certificate.
The director may cooperate with the United States Department of Agriculture in carrying out this chapter.
ARTICLE 2. Investigation and Certification [40531. - 40535.]
The department may investigate and certify to other states and countries, shippers, or other financially interested parties the analysis, classification, grade, quality, or condition of any fruit, vegetable, or other agricultural product, either raw or processed, under regulations that the department may adopt, including the payment of reasonable service charges, the frequency of payment of the service charges, the procedure for payment, the procedure for refunds, and the penalties for late payment. The department may accredit persons or business entities to conduct the investigation or certification, or both the investigation and certification.
Every certificate which relates to the analysis, classification, condition, grade, or quality of any agricultural product, either raw or processed, and every duly certified copy of such certificate, is prima facie evidence of the truth of the statements which are contained in it, if duly issued in accordance with any of the following:
By the director under authority of this code.
In cooperation between federal and state agencies, authorities, or organizations under authority of an act of Congress and an act of the legislature of any state.
Under authority of a federal statute.
The presumption established by this section is a presumption affecting the burden of proof, but it does not apply in a criminal action.
Any certificate which is issued by the state pursuant to this chapter or by any person shall truly state the grade, quality, and condition of the product which is certified. A true copy of any such certificate shall be furnished to the director or to the commissioner of the county where the shipment originated, on demand which is made in writing.
The director may contract with the United States Department of Agriculture to provide inspection and certification service for eggs and egg products and poultry meat classification pursuant to United States Department of Agriculture standards. The director may also contract with commissioners to perform such inspection and certification services pursuant to such contracts with the United States Department of Agriculture and for the enforcement of egg and poultry meat classification standards of this state.
There is hereby created in the Department of Food and Agriculture Fund, the Analytical Laboratory Account, into which the residual balance of all reimbursements collected by the Secretary of Food and Agriculture for services rendered by the Center for Analytical Chemistry shall be deposited at the end of each fiscal year.
Notwithstanding Section 221, upon appropriation by the Legislature, funds deposited in the Analytical Laboratory Account shall be used to fund services rendered, laboratory equipment repair or replacement, make modifications or upgrades to existing facilities, or for other uses that maintain the laboratory infrastructure.
ARTICLE 3. Funds [40561. - 40562.]
Any money which is collected pursuant to this chapter shall be paid into the Department of Food and Agriculture Fund.
Within 90 days after the end of each fiscal year, the director shall prepare a statement which shows the receipt and expenditure during the fiscal year of funds provided for in this chapter. He shall, upon written request, forward a copy of this report to any party that is financially interested in the inspection work which is conducted pursuant to this chapter.
ARTICLE 4. Shipping Point Advisory Committee [40571. - 40577.5.]
There is in the department a Shipping Point Advisory Committee consisting of nine members. The committee shall be appointed by the director and shall be composed of shippers of fruits and vegetables using inspection and certification services of the department. The director may appoint one additional member on the committee, who shall be a public member. Members of the committee shall receive no salary.
Upon the director’s request, the committee shall submit to the director the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, or processor nor financially interested in any producer, shipper, or processor, for appointment by the director as a public member of the committee. The director may appoint one of the nominees as the public member on the committee. If all nominees are unsatisfactory to the director, the committee shall continue to submit lists of nominees until the director has made a selection. Any vacancy in the office of the public member of the committee shall be filled by appointment by the director from the nominee or nominees similarly qualified submitted by the committee. The public member of the committee shall represent the interests of the general public in all matters coming before the committee and shall have the same voting and other rights and immunities as other members of the committee.
It is hereby declared, as a matter of legislative determination, that shippers of fruits and vegetables appointed to the Shipping Point Advisory Committee pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such committee, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The term of office of the members of the committee is three years. Appointment of the first members shall be made so that the terms of office of three members shall expire at the end of one year and three at the end of two years and three at the end of three years. Thereafter appointment shall be for full three-year terms. Vacancies shall be filled for an unexpired term.
The committee shall be advisory to the director on all matters pertaining to this chapter and shall make recommendations concerning the inspection and certification services rendered, including the annual budget and fees necessary to provide adequate inspection and certification services.
The director shall appoint an alternate for each committee member. In making these appointments, the director shall use the same criteria in selecting alternates as the regular members.
Alternate members shall serve at committee meetings only in the absence of the member for whom the alternate is designated to serve in place of.
Each member of the committee, or any alternate member serving in the absence of a regular member, may, with the approval of the director, be reimbursed for the actual and necessary expenses incurred in the performance of his or her official duties. However, a member or alternate member may not receive any other consideration for serving on the committee. The reimbursement shall be made at the rate permitted under the rules of the Department of Human Resources.
In order to operate economically and reduce expenses that may adversely impact persons subject to this chapter, on or before May 1 of any year, the committee may request the secretary, and the secretary may utilize any appropriate entity, to supply the field staff, office facilities, and supplies necessary to provide inspection services.
Notwithstanding subdivision (a), the secretary is responsible for the administration of this chapter, the establishment of administrative procedures, and the uniformity, accuracy, and integrity of the inspection.
The secretary may establish rules and procedures to guide the entity described in Section 40577. The procedures may provide for all of the following:
Employment, training, supervision, and compensation of inspectors.
Use of existing, and acquisition of additional, equipment and supplies for field or office use.
Leasing of facilities to support inspection activities.
The committee shall not request that the secretary utilize, and the secretary shall not utilize, an entity a majority of whose officers and employees are persons utilizing services provided by the department pursuant to this chapter.
The entity shall keep an accurate record of expenses incurred in performing its responsibilities. Those records shall be available for audit during regular business hours upon request of the secretary.
The secretary may require an entity to correct or cease any activity or function that is determined by the secretary not to be in the public interest, or that is in violation of this chapter, and shall notify the entity in writing of these specific acts.
The secretary shall reimburse the entity for its actual and necessary expenses upon receipt of an invoice approved by the secretary.
CHAPTER 2. Standards for Tomatoes [40701. - 41010.]
ARTICLE 1. Definitions [40701. - 40703.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Processing purposes” means tomatoes intended for the commercial production of processed products such as sliced, diced, quartered, halved, and whole tomatoes, tomato paste, puree, pulp, catsup, sauce, tomatoes in oil, juice, powder, flakes, and similar manufactured tomato products.
“Committee” means the Processing Tomato Advisory Committee.
ARTICLE 2. General Provisions [40730. - 40732.]
The director shall not enforce this article during the period that any marketing order or commission covering the same subject is in effect.
The standards which are established as authorized by this chapter are the only standards of quality for processing tomatoes that the director shall enforce.
Tomatoes for processing purposes, except hard green tomatoes for use in the manufacture of green tomato products, shall conform to the standards established under this chapter.
ARTICLE 3. Regulations [40760. - 40761.]
The director shall not enforce this article during the period that any marketing order or commission covering the same subject is in effect. Section 58601) of Division 21 covering the same subject.
The committee may submit to the director proposed regulations under this chapter. The director may adopt and enforce regulations for the following:
Minimum standards and tolerances, for processing tomatoes which shall be cause for rejection by the director. However, no emergency regulations shall be established which raise or lower standards and tolerances.
Minimum standards for color of processing tomatoes based on a comminuted raw product sample which shall be cause for rejection by the director. However, no emergency regulations shall be established which tend to raise or lower the comminuted color readings.
Standards for processing tomatoes which shall not be cause for rejection by the director.
Sampling and inspection procedures for processing tomatoes.
Fees calculated to cover expected costs involved in the department performing the services specified in this chapter and in carrying out the regulations adopted under this chapter.
Sanitation, equipment, inspection stations, and load identification data.
Other regulations which are reasonably necessary for the administration and enforcement of this chapter.
ARTICLE 4. Powers of the Director [40781. - 40782.]
The director may, for the purpose of inspection, enter any place where processing tomatoes may be found. The director may take for inspection samples as may be necessary to determine if any uncertified lot, load, or container of processing tomatoes complies with the standards established pursuant to this chapter. The director may subject samples to any method of inspection or testing as prescribed by regulation.
The director may cause the prosecution of any person violating any provision of this chapter, and may seize and hold the portion of any lot or load of tomatoes for processing purposes involved in a violation as may, in his or her judgment, be necessary as evidence.
ARTICLE 5. Inspection and Certification by the Director [40810. - 40815.]
The director shall not enforce this article during the period that any marketing order or commission covering the same subject is in effect.
The director shall inspect deliveries of tomatoes for processing purposes.
If the director finds that the tomatoes which are being delivered conform with the standards prescribed by regulations, the director shall issue a certificate to that effect.
If the director finds that the tomatoes delivered do not conform with the standards prescribed by regulations, the director shall issue a notice of rejection.
The director is not required to perform inspection at any place where adequate inspection facilities are not provided.
The inspection certificate which is issued pursuant to this chapter is prima facie evidence of the percentage of defects according to the definition of such defects as defined by regulations. The presumption established by this section is a presumption affecting the burden of proof, but it does not apply in a criminal action.
ARTICLE 6. Contract Inspection [40871. - 40874.]
Loads of tomatoes which are offered for delivery by a producer to a processor in accordance with the terms of a contract between them shall be given inspection as may be required without undue delay and within a reasonable time after the load arrives at the processor or other point which is specified for the inspection.
Any load of tomatoes which is so offered for inspection and delivery that is rendered unsuitable for processing purposes as a direct result of unwarranted delay in inspection, willfully or negligently caused or permitted by the processor, shall be paid for by the processor at the full price that is agreed upon for tomatoes suitable for processing purposes and on the basis that the tomatoes were of the grade, quality, and condition which is stipulated in the contract.
If no price is stipulated in the contract, payment shall be made by the processor to the producer on the basis of the then prevailing market price for tomatoes of the grade, quality, and condition which is specified in the contract.
In addition to any other remedy, the producer so offering for inspection and delivery any load of tomatoes that has incurred any added handling costs as a direct result of the unwarranted delay in inspection and delivery, willfully or negligently caused or permitted by a processor, may recover the amount of the added handling costs by an action at law against the processor.
No producer shall have any rights under this article unless he shall register each load of tomatoes with the processor at the time he offers the load for inspection and delivery. The registration shall be made by obtaining from the processor a certificate, which the processor is, by this provision, required to furnish, that states the time of arrival of the load at the processor or other specified inspection point.
ARTICLE 7. Discrimination in Furnishing Raw Product Containers [40901. - 40902.]
The failure of a processor willfully and without due cause to furnish raw product containers to a producer as agreed upon, or any willful discrimination against any producer in this regard, shall subject such processor to an action for all damages which are sustained by the producer as a direct result of the failure or discrimination, and judgment against any processor may be entered in the discretion of the court either for the amount of the damages sustained or for three times the amount. Treble damages may, however, only be awarded if the producer has furnished the processor written notice of the claimed failure or discrimination within 48 hours after the claimed failure or discrimination.
This article does not affect existing remedies for the violation of a contract but is in addition to such existing remedies.
ARTICLE 8. Fees [40930. - 40935.]
The director shall not enforce this article during the period that any marketing order or commission covering the same subject is in effect.
Each processor that receives deliveries of tomatoes for processing purposes is hereby designated as the authorized agent of the director to collect the inspection and certification fees which are chargeable to the processor and to each producer that delivers tomatoes.
The cost of the inspection and certification shall be borne equally by both the processor and the producer.
Any money which is collected pursuant to this article shall be remitted to the director weekly during the tomato processing season for deposit into the Department of Food and Agriculture Fund to be used in carrying out the purposes of this chapter.
Except as otherwise provided in this article, any money which is so collected and not used for the purposes of this chapter shall be returned to the processors from whom it was received for distribution to the processors and producers from whom the money was originally collected, in proportion to their several interests.
If the director determines, as to any money heretofore or hereafter collected as inspection and certification fees, that the return of the money with respect to any processing season is impracticable because of the smallness of the amounts returnable, or for any other reason, the money so collected shall not be so returned but shall remain in the Department of Food and Agriculture Fund and be available for expenditure for the purposes of this chapter in any subsequent year.
ARTICLE 9. Violations [40961. - 40963.]
It is unlawful for any person to deliver or to accept tomatoes for processing purposes, or to process any tomatoes, which have not been certified as meeting the requirements of this chapter or the regulations established pursuant to this chapter.
It is unlawful for any person to deliver to a processor or for any processor to accept delivery of any load of tomatoes which has been rejected for failing to comply with the standards established pursuant to this chapter, until the load has been reconditioned to comply with the standards, reinspected, and a certificate issued by the proper enforcing officer.
It is unlawful for any person to remove, deface, or destroy, any warning tag or notice which has been placed by a proper enforcing officer upon a rejected lot or load of tomatoes for processing purposes.
ARTICLE 10. Processing Tomato Advisory Committee [41000. - 41010.]
The director shall not enforce this article during the period that any marketing order or commission covering the same subject is in effect.
There is in the department the Processing Tomato Advisory Committee, which consists of 10 members. The director shall appoint five members who shall be producers of tomatoes for processing and five members who shall be representatives of processors engaged in the processing of tomatoes. The director may appoint one additional member of the committee, who shall be a public member.
Upon the director’s request, the committee shall submit to the director the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, or processor nor financially interested in any producer, shipper, or processor, for appointment by the director as a public member of the committee. The director may appoint one of the nominees as the public member on the committee. If all nominees are unsatisfactory to the director, the committee shall continue to submit lists of nominees until the director has made a selection. Any vacancy in the office of the public member of the committee shall be filled by appointment by the director from the nominee or nominees similarly qualified submitted by the committee. The public member of the committee shall represent the interests of the general public in all matters coming before the committee and shall have the same voting and other rights and immunities as other members of the committee.
It is hereby declared, as a matter of legislative determination, that producers of tomatoes for processing and processors engaged in processing tomatoes appointed to the Processing Tomato Advisory Committee pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that the representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the committee, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
In making selection of the membership of the committee, the director shall take into consideration the recommendations of organizations and associations of producers of tomatoes for processing and of processors of tomatoes for processing.
The committee member’s term of office shall be three years. Any vacancies which occur during an unexpired term shall be filled by appointment for the unexpired term.
The committee shall be advisory to the director on all matters pertaining to standards for tomatoes for processing purposes. The committee may do any of the following:
Recommend to the director administrative regulations which relate to the administration and enforcement of this chapter.
Recommend to the director the institution and promotion of scientific research.
Recommend to the director the sampling for conditions not currently provided for in this chapter or regulations adopted pursuant to this chapter.
Advise the director on all matters pertaining to this chapter including the annual budget and revenue necessary to accomplish the purpose of this chapter.
The committee shall meet at the call of its chairman or at the request to the director of any three members of the committee. It shall meet at least once each year.
The meetings of the committee shall be held in the office of the department at Sacramento, or elsewhere within the state, if necessary for the proper performance of its duties.
Each member of the committee, any alternate member serving in the absence of a regular member, and any member of an advisory committee appointed by the chairman of the committee, may, with approval of the director, be reimbursed for the actual and necessary expenses incurred in the performance of their official duties. However, members may not receive any other consideration. Any of these reimbursements shall be made at the rate permitted under the rules of the Department of Human Resources.
The director shall appoint an alternate member for each committee member. In making the appointments the director shall appoint a producer as alternate for each producer member and a processor representative as alternate for each processor representative, and shall give consideration to the representative of the member for whom the alternate is designated to serve.
Alternate members shall serve at committee meetings only in the absence of the member for whom they are designated as alternate.
CHAPTER 3. Grapes for Wine and Byproducts [41101. - 41211.]
ARTICLE 1. General Provisions [41101. - 41102.]
The director shall have supervision and control over the commissioners and their deputies or inspectors in the performance of their duties under this chapter.
The certificates which are provided for in this chapter are prima facie evidence of the true average soluble solids test of all of the grapes in the lot or load under consideration. The presumption established by this section is a presumption affecting the burden of proof, but it does not apply in a criminal action.
ARTICLE 2. Exceptions [41131. - 41132.]
This chapter does not apply to grapes which are marketed by or through a nonprofit cooperative marketing association unless the board of directors of the association elects to have the soluble solid determination of the grapes of its members determined as provided in this chapter and notifies the agricultural commissioner of each county in which the association operates any winery of such election.
This chapter does not affect the right of a purchaser of grapes for wine and byproducts purposes to specify a minimum percentage of soluble solids as a definition of maturity of the grapes if the price which is to be paid is to be determined other than on the basis of the soluble solid contents of the grapes.
ARTICLE 3. Determination of Soluble Solids Generally [41161. - 41164.]
In order to prevent fraud and deception in any transaction which involves fresh grapes for wine and byproducts purposes, that requires the extraction or pressing out of the juice, in which the average percentage of soluble solids in the juice of such grapes is the basis for the amount of the purchase price, the determination of such average percentage of soluble solids shall be made by the commissioner or his deputies or his inspectors.
Each lot or load of such grapes which is delivered shall be tested at or immediately after the time of delivery and the average soluble solids test of the juice of such grapes shall be certified to by such officer, in accordance with regulations which are prescribed by the director.
Each commissioner shall provide for the taking of samples, making tests, and issuing the certificates which are required in this chapter.
The board of supervisors of the county shall establish a scale and method of collection of fees, to be paid for each certificate which is provided for in this chapter. The scale of fees which are established for the certificates shall be based upon the approximate cost of the inspection, sampling, and testing which is necessary to the certification of the percentage of the soluble solids in each lot or load of grapes. The certification fee shall be paid by the person that accepts delivery of the grapes. One-half of the fees may be deducted from funds owed to the person who delivered the grapes.
ARTICLE 4. Determination of Soluble Solids, Rot, and Foreign Material by the Director [41191. - 41195.]
Notwithstanding any other provisions which are contained in this chapter and in lieu of such determinations by the commissioner, the director may make determinations of the average percentage of soluble solids in the juice of fresh grapes and certify, by the issuance of a certificate, to marketing order advisory boards, handlers, associations, or financially interested persons the determinations and findings which are so made if both of the following conditions are satisfied:
A marketing order is made effective or the director is requested to determine the average percentage of soluble solids as required by this chapter by any person that is engaged in the business of purchasing fresh grapes for wine and byproducts or processing purposes which require the extraction or pressing out of the juice of the grapes.
The director and the commissioner determine that such determinations can be more effectively made by the director.
In order to prevent fraud and deception in any transaction which involves fresh grapes for wine and byproducts purposes, when the percentage of rot or foreign material has any effect on the amount of the purchase price, the determination of such percentage shall be made by the director.
When any transaction involves fresh grapes for wine and byproducts purposes, the purchaser shall notify the seller, in writing, prior to delivery, of the conditions relating to soluble solids, rot, and foreign materials affecting the purchase price to be paid for such grapes.
For the purpose of carrying out this article, the director may establish necessary regulations, including reasonable fees which are to be charged for the services and for the acceptance of advance fees to effectuate the determination. Any fees which are so established shall be based upon the approximate cost of the service which is rendered. Fees shall be paid by the person that accepts delivery of the grapes. One-half of the fees may be deducted from money owed to the person who shipped the grapes.
Any money which is received pursuant to this article shall be paid into the Department of Food and Agriculture Fund to be expended in carrying out this article.
ARTICLE 5. Wine Grape Inspection Advisory Committee [41201.5. - 41211.]
There is in the department a Wine Grape Inspection Advisory Committee consisting of eight wine producers and eight wine grape growers appointed by the director. The director shall appoint one additional member to the committee, who may be a public member. The members of the committee shall receive no compensation.
In making appointments to the committee, the director shall appoint only one person to represent any one winery or growers’ firm, and shall make every effort to ensure that there is geographical representation from the major wine grape production areas in the state.
This section shall become operative on January 1, 1996.
The Legislature hereby declares that it intends that the wine producers and wine grape growers appointed to the Wine Grape Inspection Advisory Committee pursuant to this article shall represent and further the interests of the grape industry. The Legislature also declares that this representation and furtherance of the grape industry serves the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed as members of the committee, the grape industry is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The term of office of each member of the committee is three years.
The members of the committee, alternate members when acting as members or when requested to perform certain actions by the committee, and subcommittee members, may be reimbursed, upon request, for necessary expenses incurred by them in the performance of their duties.
The members of the committee, or their voting alternates, consisting of at least five producers and five processors, shall constitute a quorum. Any action of the committee shall require not less than five affirmative votes of the processor members and five affirmative votes of the producer members.
This section shall become operative on January 1, 1996.
The committee shall select a chairperson and a vice chairperson from among its members, and other officers as it deems necessary. The committee may adopt such regulations as it deems necessary for the conduct of its meetings and functions to carry out the objectives of this article.
The office of the chairperson and vice chairperson shall alternate annually between the producer and processor members. In any year that a processor member is the chairperson, a producer member shall be the vice chairperson, and in any year that a producer member is the chairperson, a processor member shall be vice chairperson. The committee may recommend such subcommittees as it deems necessary to assist the committee and the director.
The committee shall be advisory to the director on all matters pertaining to this chapter and certification of the quality of grapes used for processing pursuant to Section 40531 and shall make recommendations concerning the inspection and certification services rendered, including the annual budget and fees necessary to provide adequate inspection services. All recommendations for budgets and assessment fees shall be submitted to the director on or before May 1 of each year.
The committee’s primary goal shall be to recommend to the director objective criteria and inspection procedures for all quality conditions that have an effect on the acceptance of, or on the amount of the purchase price of, fresh grapes for wine and byproduct purposes.
This section shall become operative on January 1, 1996.
In order to operate economically and reduce expenses that may adversely impact persons subject to this chapter, the committee may, on or before January 15 of any year, request the director to utilize an appropriate entity, rather than personnel of the department, to supply the field staff and supplies necessary to provide inspection services.
Notwithstanding subdivision (a), the director shall be responsible for the enforcement of this chapter, the establishment of enforcement procedures, and the uniformity, accuracy, and integrity of inspection.
This section is not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
The director may provide rules and procedures to be used by the entity in administering this chapter. The procedures may include:
Employment, training, supervision, and compensation of inspectors.
Use of existing, and acquisition of, additional equipment and supplies.
The committee shall not recommend and the director shall not utilize, an entity a majority of whose officers and employees are persons regulated by this chapter.
The entity shall keep an accurate record of expenses incurred in performing its responsibilities. Those records shall be available for audit during regular business hours upon request of the director.
The director may require an entity to correct or cease any activity or function that is determined by the director not to be in the public interest or in violation of this chapter, and shall notify the entity in writing of these specific acts.
The director shall reimburse the entity for its actual and necessary expenses upon receipt of an approved invoice.
The committee shall meet at the call of the chairperson or at the request to the director of any three members of the committee. The committee shall meet at least once a year. The meetings of the committee shall be held at locations in California which will tend to ensure industry participation and productive meetings.
The director shall appoint an alternate member for each committee member. In making the appointments, the director shall appoint a wine producer as the alternate for each wine producer member and a wine grape grower as the alternate for each wine grape grower member, and shall consider persons suggested by the member for whom the alternate is designated to serve.
Alternate members shall serve at committee meetings only in the absence of the member for whom they are designated as the alternate.
The director, in consultation with the University of California and the California State University, shall conduct a study on the feasibility of establishing a public or private program, or a combination thereof, for the development of new grape-based products and their uses and for promoting and marketing these new products.
The Wine Grape Inspection Advisory Committee, created pursuant to Section 41201, shall form a subcommittee, consisting of five grower members of the committee who shall each represent geographically different grape growing regions of the state, to advise the director with respect to the study described in subdivision (a).
The director shall report his or her findings to the Governor, the Assembly Committee on Agriculture, and the Senate Committee on Agriculture and Water Resources, not later than January 1, 1992.
CHAPTER 4. Canned Foods [41301. - 41582.]
ARTICLE 1. General Provisions [41301. - 41303.]
This chapter provides certain standards of quality, condition, or fill of container and requirements for marking of fruits and vegetables, including olives, which are packed in tin or glass containers.
Any act that is made unlawful by Part 5 (commencing with Section 109875) of Division 104 of the Health and Safety Code is not made lawful by reason of this part. This part does not limit the powers of the State Department of Health Services.
Any person or any common carrier may refuse to accept for shipment or transportation, and may refuse to ship or to transport, any canned fruit, including olives, which upon inspection are found to be, or to be packed, in violation of this chapter. Any such person or common carrier may reserve the right in any receipt, bill of lading, or other writing which is given to the consignor, to reject for shipment or transportation and to return to such consignor, or to hold at the expense and risk of the consignor, all canned fruit, including olives, which upon inspection are found to be, or to be packed, in violation of this chapter.
ARTICLE 2. Enforcement [41331. - 41332.]
The State Director of Health Services shall be charged with the enforcement of this chapter and for that purpose he shall have all the powers heretofore conferred upon the Director of Agriculture.
The State Director of Health Services, for the purpose of enforcing this chapter, may do all of the following:
Enter and inspect every place within the state where canned fruits or vegetables, including olives, are canned, stored, shipped, delivered for shipment, or sold, and inspect all fruits or vegetables, including olives, and containers that are found in that place.
Seize and retain possession of any canned olives or canned fruits or vegetables that are packed, shipped, delivered for shipment, or sold in violation of this chapter, and hold them pending the order of the court.
Cause to be instituted and to be prosecuted in the superior court of any county of the state in which may be found canned olives or canned fruits or vegetables that are packed, shipped, delivered for shipment, or sold, in violation of this chapter, an action for the condemnation of canned olives or canned fruits or vegetables as provided by Part 5 (commencing with Section 109875) of Division 104 of the Health and Safety Code.
ARTICLE 3. Standards Generally [41361. - 41362.]
The following fruits and vegetables shall not be canned, packed, shipped, or sold within this state:
Fruits or vegetables which are unclean, immature, mouldy, overripe, infested with brown rot, scab, shothole fungus, or other defects to the extent of rendering the product unwholesome.
Olives which are unclean, immature, mouldy, overripe, infested with fungus, rot, or other defects to the extent of rendering the product unwholesome.
Olives which are processed or artificially colored to the extent that the meat has been turned black, or the flavor has been impaired.
In addition to the standards and requirements which are prescribed by Section 41361, the standard of quality, condition, and fill of container and requirements for marking of canned fruits and vegetables are those which are promulgated or to be promulgated by the Secretary of the United States Department of Agriculture.
ARTICLE 4. Size Standards Generally for Canned Ripe Olives [41421. - 41421.]
Tolerances above or below the count per pound of a designated size of olives shall be established which conform to the tolerances adopted by the United States Department of Agriculture in its United States Standards for Grades of Canned Ripe Olives.
ARTICLE 5. Disposition of Ripe Olives Which Are Below Specified Sizes [41441. - 41441.]
The following varieties of ripe olives shall not be packed, shipped, delivered for shipment, or sold within this state, as whole or pitted or broken pitted canned ripe olives, if they are below the following specified sizes:
Mission and Manzanillo varieties of small size, and any mutations, sports, or other derivations of these varieties.
Obliza variety of medium size, and any mutations, sports, or other derivations of this variety.
Ascolano, St. Agostino, and Barouni varieties of extra large size, and any mutations, sports, or other derivations of these varieties.
Sevillano variety having a count range of 75 per pound.
ARTICLE 6. Violations [41551. - 41553.]
Except as otherwise provided in Section 41552, any person, firm, company, or corporation that violates any provision of this chapter is guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than ten dollars ($10) nor more than one thousand dollars ($1,000), or shall be imprisoned in the county jail for a term not exceeding six months, or by both such fine and imprisonment.
A person shall not be convicted of a violation of any provision of this chapter if such person establishes a guaranty, which is signed by the person that resides or is lawfully engaged in business in the state, by or for whom the canned fruit, including olives, in question were originally packed, to the effect that the product in question complies in all respects with the provisions of this chapter. Such guaranty, to afford protection, shall contain the name and address of the party that made such guaranty. Such guarantor shall be amenable to all of the prosecutions, fines, and penalties which are provided for by this chapter.
One-half of all fines which are collected by any court or judge, for the violations of the provisions of this chapter shall be paid to the State Treasurer for credit to the General Fund.
ARTICLE 7. Abatement [41581. - 41582.]
If the State Director of Health Services finds, after investigation and examination, that any canned fruits or vegetables, including olives, that are found in the possession of any person, firm, company, or corporation are misbranded or mislabeled within the meaning of this chapter, he or she may seize the canned fruits or vegetables, including olives, and tag them “embargoed.” The canned fruits or vegetables, including olives, shall not thereafter be sold, removed, or otherwise disposed of pending a hearing and final disposition as provided by Part 5 (commencing with Section 109875) of Division 104 of the Health and Safety Code.
Canned fruits or vegetables, including olives, which are found to be mislabeled or misbranded within the meaning of this chapter may, by order of any court or judge, be seized and destroyed.
CHAPTER 5. Standards for Garlic and Onions forDehydration [41701. - 41867.]
ARTICLE 1. Definitions [41701. - 41703.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Dehydrating garlic or onions” means garlic or onions which are suitable for dehydration purposes.
“Dehydration purposes” means the commercial dehydration of garlic and onions.
ARTICLE 2. General Provisions [41710. - 41713.]
The secretary shall not enforce this article, Article 3 (commencing with Section 41721), Article 5 (commencing with Section 41751), Article 6 (commencing with Section 41801), or Article 8 (commencing with Section 41861), during the period that any marketing order covering the same subject is in effect.
The secretary shall initially adopt the American Dehydrated Onion and Garlic Association quality standards for garlic and onions suitable for dehydration purposes. Those standards shall be subject to subdivision (a) of Section 41865.
Except as otherwise provided in Section 41713, quality standards which are established pursuant to this chapter are the only standards of quality for dehydrating garlic or onions. The provisions of any contract entered into on or after January 1, 1979, to sell dehydrating garlic or onions, or to deliver such garlic or onions on consignment, which prescribe other or different quality or maturity requirements, are ineffective, and in such contracts the quality standards which are prescribed pursuant to this chapter shall be implied by law.
The quality standards which are established pursuant to this chapter shall be considered as a grade under Chapter 1 (commencing with Section 40501). If a marketing order is issued pursuant to Chapter 1 (commencing with Section 58601) of Part 2 of Division 20, which established uniform grading and inspection for dehydrating garlic and onions, then and so long as it is effective, the provisions of such marketing order shall control and the provisions established by regulations are ineffective as to garlic or onions which are covered by such marketing order.
ARTICLE 3. Regulations [41721. - 41721.]
The secretary by regulation may do all of the following:
Prescribe methods of selecting samples of lots, loads, or containers of garlic and onions for dehydration purposes, which shall be reasonably calculated to produce by sampling fair representations of the entire lot, load, or container sampled.
Prescribe the methods and procedures for determination of moisture content in deliveries of garlic or onions for dehydration purposes.
Establish and record on the certificate items or conditions affecting lots, loads, or containers of garlic or onions for dehydration purposes, other than those defects established by regulation.
Adopt and enforce other regulations as reasonably necessary for the enforcement of this chapter.
ARTICLE 4. Powers of the Secretary [41731. - 41732.]
The secretary, for the purpose of inspection, may enter any place where garlic or onions for dehydration purposes may be found and take for inspection such representative samples as may be necessary to determine whether or not any uncertified lot or load of garlic or onions complies with the quality standards established pursuant to this chapter, and the percentage of garlic or onions that are not suitable for dehydration purposes. The secretary may subject samples of garlic or onions to any method of inspection or testing prescribed by regulation.
The secretary may cause the prosecution of any person violating any provision of this chapter, and may seize and hold a portion of any lot or load of garlic or onions for dehydration purposes involved in a violation, that may in the secretary’s judgment be necessary as evidence.
ARTICLE 5. Weighing, Inspection, and Certification [41751. - 41758.]
By mutual agreement between the grower and the dehydrator, deliveries of garlic or onion for dehydration purposes may be weighed by a certified weighmaster and issued a valid weight certificate in the area of production. Cost of weighing and transportation involved in moving such deliveries to and from the weigh station shall be shared equally by the grower and dehydrator. The weight shall be for the grower’s information and shall not be in lieu of any contractual provision between grower and dehydrator concerning delivered weights at the dehydrator’s plant or receiving station.
The secretary shall inspect all sale or contract deliveries of garlic or onions for dehydration purposes, except garlic or onions grown and dehydrated by a common principal owner, and garlic or onions specifically exempted by regulation.
The secretary, by regulation, shall exempt from inspection and certification any type of delivery of garlic or onions to a dehydrator, if the secretary finds that inspection of the delivery would not serve the purposes of this chapter.
Upon inspection of each load or lot, the secretary shall issue a certificate that shows the weight or percentage of garlic or onions by defect in the sample that does not conform to the standards established pursuant to this chapter.
The secretary may adopt regulations concerning the place of inspection and location of inspection stations after notice and public hearing. In adopting regulations, the secretary shall consider all of the following:
The proximity to the area of production.
The distance to alternative inspection facilities or dehydrators.
Any burden imposed upon growers, dehydrators, or the inspection service.
Any equity that may be advanced between growers and dehydrators.
Until the secretary adopts regulations concerning the location of inspection stations, except as otherwise provided in Sections 41754, 41755, and 41756, inspection shall be performed at the dehydrator or at a receiving station that is established or designated by the operator of the dehydrator.
The secretary may review the operation of any inspection station that is not located at a dehydrator during a period beginning November 1st of any year and ending not less than 30 days before the date inspection began at that station in the preceding year and, if the secretary determines that the interest and economy and efficient operation of the inspection service would be served, the secretary, with the consent of each operator of a dehydrator that is involved, may terminate inspection at that place.
If the operators of dehydrators do not consent to termination prior to the date that is set forth in Section 41754, the secretary may hold a hearing to consider the termination of inspection at that place. At the hearing testimony of the operators of dehydrators and growers that use the station shall be heard.
The secretary may announce to all of the parties of record who will be affected by the action that inspection is terminated for the ensuing season at an inspection station that is not located at a dehydrator if the secretary makes all of the following findings:
Termination of inspection at the station will satisfactorily accomplish the objectives of the inspection service and tend to provide economical and efficient operation.
No unreasonable burden will be imposed upon dehydrators or growers.
Garlic or onions that are normally inspected at the station will not have to be hauled an unreasonable distance to be inspected at another point.
The secretary is not required to perform inspection at any place where adequate inspection facilities are not provided.
The inspection certificate which is issued pursuant to this chapter is prima facie evidence of the percentage of defects according to the definition of such defects in this chapter or in the regulations adopted pursuant to this chapter. The presumption established by this section is a presumption affecting the burden of proof, but it does not apply in a criminal action.
ARTICLE 6. Fees [41801. - 41806.]
The secretary shall adopt a schedule of uniform fees to defray the cost of administering this chapter.
Each operator of a dehydrator that receives deliveries of garlic or onions for dehydration purposes is hereby designated as the authorized agent of the secretary to collect the inspection and certification fees that are chargeable to the dehydrator and to each grower that delivers garlic or onions.
The cost of such inspection shall be borne equally by both the operator of a dehydrator and the grower.
Any money that is collected pursuant to this article shall be remitted to the secretary weekly during the garlic and onions dehydration season for deposit into the Department of Food and Agriculture Fund to be used in carrying out the purposes of this chapter.
Except as provided in this article, any money which is so collected and not used for the purposes of this chapter shall be returned to the operators of dehydrators from whom it was received for distribution to the operators of dehydrators and growers from whom the money was originally collected, in proportion to their several interests.
If the secretary determines, as to any money collected as inspection and certification fees, that the return of the money with respect to any dehydration season is impracticable because of the smallness of the amounts returnable, or for any other reason, the money so collected shall not be returned but shall remain in the Department of Food and Agriculture Fund and be available for expenditure for the purposes of this chapter in any subsequent year.
ARTICLE 7. Violations [41831. - 41832.]
It is unlawful for any person to make delivery or for any person to accept delivery of garlic or onions for dehydration purposes, or to process any garlic or onions, which have not first been inspected and certified as provided in Article 4 (commencing with Section 41731) and Article 5 (commencing with Section 41751).
Except as provided in regulations adopted pursuant to this chapter, until each such shipment or delivery of garlic or onions for dehydration purposes has been weighed and samples have been taken for inspection purposes, it shall be unlawful for any person to transfer garlic or onions from one lot, load, or container to another, unless each such lot, load, or container is owned by the same grower.
ARTICLE 8. Garlic and Onion Dehydrator Advisory Committee [41861. - 41867.]
As used in this article, “committee” means the Garlic and Onion Dehydrator Advisory Committee.
There is in the department the Garlic and Onion Dehydrator Advisory Committee, which consists of 11 members and their alternates. The secretary shall appoint five members and their alternates, who shall be growers of garlic or onions for dehydrating, five members and their alternates, who shall be representatives of handlers engaged in the dehydrating of garlic or onions, and one public member and an alternate, both of whom shall have no direct economic interest in the growing or dehydrating of garlic or onions. An alternate member shall serve at a committee meeting only in the absence of, and shall have the same powers and duties as, the member for whom he or she is designated as alternate.
In selecting the membership of the committee, the secretary shall take into consideration the recommendations of organizations and associations of producers of garlic and onions for dehydrating and of handlers of garlic or onions for dehydrating.
The term of office of the members of the committee is three years. Appointment of the first members of the committee shall be so made that the terms of office of three of such members, of which one shall be a public member, shall expire at the end of one year, four at the end of two years, and four at the end of three years. Thereafter appointments shall be for full three-year terms. Any vacancies which occur during an unexpired term shall be filled by appointment for the unexpired term.
The committee shall be advisory to the secretary on all matters pertaining to quality standards for garlic and onions for dehydrating purposes. The committee may do any of the following:
Recommend to the secretary the adoption or amendment of the quality standards for garlic or onions suitable for dehydration purposes.
Recommend to the secretary administrative regulations that relate to methods and procedures of selecting samples of lots, loads, or containers of garlic or onions for dehydrating purposes.
Recommend to the secretary administrative regulations that relate to the methods and procedures for the determination of moisture content in deliveries of garlic or onions for dehydration purposes.
Recommend to the secretary administrative regulations that relate to the administration and enforcement of this chapter.
Recommend to the secretary administrative regulations concerning the place of inspection and location of inspection stations.
Recommend to the secretary the institution and promotion of scientific research.
Recommend to the secretary whether or not there shall be sampling and inspection for conditions not shown on the certificate of inspection for dehydrated garlic or onions.
Advise the secretary on all matters pertaining to this chapter, including training and supervision of inspectors and the annual budget and revenue necessary to accomplish the purposes of this chapter.
In order to operate economically and reduce the expenses that may adversely impact persons subject to this chapter, the committee may, on or before January 15 of any year, request the secretary to contract with any government agency or private entity, to provide services, as determined by the secretary, to be necessary for carrying out the purposes of this chapter. Those services may include, but are not limited to, both of the following:
Providing staff for inspection and research.
Providing office space, equipment, and other necessary supplies.
Notwithstanding subdivision (a), the secretary shall be responsible for the enforcement of this chapter, the establishment of enforcement procedures, and the uniformity, accuracy, and integrity of inspection.
The secretary may establish rules and procedures to be used by the government agency or private entity in administering this chapter. The procedures may include both of the following:
The employment, training, supervision, and compensation of inspectors.
The use of existing, and the acquisition of additional, equipment, supplies, and office space.
This section is not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
The committee shall not recommend and the secretary shall not utilize, a private entity a majority of whose officers and employees are persons regulated by this chapter.
The government agency or private entity shall keep an accurate record of expenses incurred in performing its responsibilities. Those records shall be available for not less than three years for audit during regular business hours upon request of the secretary.
The secretary may require the government agency or private entity to correct or cease any activity or function that is determined by the secretary not to be in the public interest or is in violation of this chapter, and shall notify the government agency or private entity in writing of these specific acts.
The secretary shall reimburse the government agency or private entity, upon receipt of an invoice approved by the secretary, for the actual and necessary expenses incurred by the agency or entity in performing the services contracted for pursuant to this chapter.
All expenses incurred in carrying out Section 41865.1 shall be paid from fees collected under this chapter.
The committee shall meet at the call of its chairperson or at the request to the secretary of any three members of the committee. It shall meet at least once each year.
Each member of the committee, any alternate member serving in the absence of a regular member, and any member of an advisory committee appointed by the chairman of the committee, with approval of the secretary, may be reimbursed for the actual necessary expenses incurred in the performance of their official duties. Any reimbursement shall be made at the rate permitted under the rules of the Department of Human Resources and a member shall not receive any other compensation.
DIVISION 17. FRUIT, NUT, AND VEGETABLE STANDARDS [42501. - 49025.8.]
CHAPTER 1. Definitions [42501. - 42520.]
Unless the context otherwise requires, the definitions in this chapter govern the construction of this division.
“Agent” means broker, commission merchant, auctioneer, solicitor, seller on consignment, and any other person that is acting upon the actual or implied authority of another.
“Bulk lot” or “bulk load” of any fresh or dried fruit, nut, or vegetable means any one group of specimens of such product which is not in a container and which is set apart or is separate from any other group.
“Byproduct” means any product which is commercially processed, preserved, or manufactured from fruits, nuts, or vegetables, except fresh citrus fruit juices, with or without the addition of other ingredients.
“Closed container” means lidded container, as defined in Section 42511.
“Container” means any box, crate, lug, chest, basket, carton, barrel, keg, drum, sack, or other receptacle.
“Cross section” means the section of the fruit or vegetable that is taken at a right angle to a straight line which is drawn from the stem end to the distal end of the fruit or vegetable.
“Deceptive arrangement” or “deceptive display” of fresh or dried fruits, nuts, or vegetables means any bulk lot or load, arrangement, or display of such products which has in the exposed surface, fresh or dried fruits, nuts, or vegetables which are so superior in quality, size, condition, or in any other respect so superior to those which are concealed, or the unexposed portion, as to materially misrepresent any part of the bulk lot or load.
“Deceptive pack” means any container or subcontainer which has in the outer layer or any exposed surface, fruits, nuts, or vegetables which are in quality, size, condition, or in any other respect so superior to those in the interior of the container or subcontainer or in the unexposed portion as to materially misrepresent the contents. Such pack is deceptive if the outer or exposed surface is composed of products whose size is not an accurate representation of the variation of size of the products in the entire container, even though the fruits, nuts, or vegetables in the container are virtually uniform in size or comply with the specific commodity size variation requirements of this part.
“Fruits, nuts, or vegetables” means the food product of any tree, vine, or plant.
“Lidded container” and “closed container” are synonymous and, unless otherwise specifically defined in this part, mean any container of which 40 percent or more of the opening is covered by any material in the form of a lid, cover, or wrapping of any kind.
“Manufacturing” means processing, as defined in Section 42519.
“Mature,” except when otherwise specifically defined, means having reached that stage of ripeness which will insure the completion of the ripening process to a degree which will insure palatability, after the removal of the product from the tree, plant, or vine.
“Mislabel” means the placing or presence of any false or misleading statement, design, or device, upon any of the following:
Any container.
The label or lining of any container.
The wrapper of any fresh or dried fruit, nut, or vegetable.
Any fruit, nut, or vegetable.
Any placard which is used in connection with, and which has reference to, any fresh or dried fruits, nuts, or vegetables.
A statement, design or device is false or misleading, if the fresh or dried fruit, nut, or vegetable, or container to which it apparently or actually refers, does not conform in every respect to such statement, design, or device.
“Overripe” means having reached an advanced state of maturity which causes the product to be undesirable for human consumption in a fresh state.
“Pack,” “packing,” or “packed” means the regular compact arrangement of all or part of the fruit or vegetables in any container or subcontainer.
“Placard” means any sign, label, or designation, except an oral designation, which is used in connection with any fresh or dried fruit, nut, or vegetable as a description or identification of it.
“Preserving” means processing, as defined in Section 42519.
“Processing” means canning, preserving, or fermenting, which materially alters the flavor, keeping quality, or any other property, the extracting of juices or other substances, or the making of any substantial change of form. It does not include refrigeration at temperatures which are above the freezing point nor any other treatment which merely retards or accelerates the natural processes of ripening or decomposition.
“Subcontainer” means any container which is being used within another container.
CHAPTER 2. General Provisions [42651. - 43100.]
ARTICLE 1. Enforcement [42651. - 42654.]
The director and the commissioners of each county of the state, their deputies and inspectors, under the supervision and control of the director shall enforce this division.
The refusal of any officer who is authorized under this division to carry out the orders and directions of the director in the enforcement of this division is neglect of duty; provided that the failure of any such officer to carry out such orders and directions shall not be neglect of duty if funds necessary to carry out such orders and directions are not provided.
The secretary, through the chief of the branch of the department that has jurisdiction over the enforcement of this division, or any deputy, inspector, or agent of the department, may enforce and make inspections of grade, standard of quality, and other provisions of any raw unprocessed fruit, nut, or vegetable marketing, food safety, or enforcement program that is adopted under the authority of the United States or of this state.
All proprietary information obtained for the purposes of the produce safety program, regardless of the source of that information, is confidential and shall not be disclosed except when required by court order in a judicial proceeding or as provided in subdivision (c).
The information that is contained in individual reports of produce safety program inspections shall not be made public by the secretary in that form, but the information that is contained in those reports may be prepared in combined form for use by the secretary, the agents of the secretary, or other interested persons in the formulation, administration, and enforcement of the produce safety rule, or may be made available pursuant to court order or as provided in subdivision (c). The information shall not be made available to anyone for private purposes.
All proprietary information obtained pursuant to the produce safety program by the secretary from any source, including, but not limited to, the names and addresses of farmers, growers, producers, handlers, or cooler operators, and data collected during inspections or investigations conducted under the produce safety rule, shall be confidential and shall not be disclosed except when required by court order in a judicial proceeding or as provided in subdivision (c). In addition, sales data and noncompliance observations obtained during a produce safety program inspection shall not be disclosed except when required by court order in a judicial proceeding or as provided in subdivision (c).
Information on crops or any other related information that is required for reports and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed.
Any information, data, or observations, including, but not limited to, proprietary information, obtained pursuant to the produce safety program may be shared with any local, state, or federal authority for the purpose of evaluating, inspecting, or investigating an imminent or potential food safety hazard or risk in order to protect public health and safety.
For purposes of this section, the following definitions apply:
The director may maintain state inspection stations at such places as he deems necessary for the purpose of enforcing the standardization provisions of this code.
ARTICLE 2. Regulations [42681. - 42685.]
The director by regulation may do all of the following:
Prescribe methods of selecting samples of lots or containers of fruits, nuts, and vegetables on a basis of size or other specific classification, which are reasonably calculated to produce by such sampling fair representations of the entire lots or containers which are sampled.
Establish and issue official color charts which depict the color standards and requirements which are established in this division.
Make such other regulations as are reasonably necessary to secure uniformity in the enforcement of this division.
The director may, upon a petition of a person that the director finds has a substantial interest in the growing or handling of the particular fruit, nut, or vegetable involved, establish, modify, or rescind by regulation, which initially took effect January 1, 1971, standard container, lid, marking, sizing requirement for commodities, and packing arrangement for any fruits, nuts, or vegetables, for which specific quality standards have otherwise been provided by law or regulation.
The director shall not, by regulation, adopt any new container or packing requirement, unless the new container or packing requirement has previously been authorized by regulation of the director as an experimental pack or container.
The director shall, upon the petition of 10 persons that the director finds have a substantial interest in the growing or handling of the particular fruit, nut, or vegetable involved, hold a hearing to establish if the requested standard container, lid, marking, sizing requirement for commodities, or packing arrangement for any fruit, nut, or vegetable for which specific quality standards have otherwise been provided should be adopted by regulation.
All regulations shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
It is the intention of the Legislature that the director, in promulgating regulations concerning standard containers, lids, marking, sizing, consumer packages or packing requirements for fruits, nuts, and vegetables, will consider such factors as the ease of handling, identification, federal laws, rules or regulations, containers, lids and packs in substantial use in the industry and the competitive position of the California fruit, nut, and vegetable industry.
It is hereby declared that the establishment and maintenance of minimum standards of quality and maturity for fruits, nuts, and vegetables is essential to ensure that products of acceptable and marketable quality will be available to the consumer.
Any quality and maturity standards adopted by the director pursuant to this division shall apply to the particular fruit, nut, or vegetable involved regardless of whether the item was produced in this state or outside of this state.
The director may, upon a petition of a commercial producer or handler that the director finds has a substantial interest in the growing or handling of the particular fruit, nut, or vegetable involved, hold a hearing to establish, modify, or rescind, by regulation, quality and maturity standards for any fruits, nuts, or vegetables.
The director shall, upon a petition of 10 commercial producers or handlers, each of whom the director finds has a separate and substantial interest in the growing or handling of the particular fruit, nut, or vegetable involved, or a petition by the Director of Consumer Affairs, hold a hearing to establish, modify, or rescind, by regulation, quality and maturity standards for any fruits, nuts, or vegetables.
In establishing, modifying, or rescinding any quality and maturity standard for any fruit, nut, or vegetable pursuant to this chapter, the director shall do all of the following: (1) find that the regulation will provide the consumer with acceptable quality fruits, nuts, and vegetables, which will also provide stability in the marketing of these products, (2) find that the regulation will tend to prevent waste in the production and marketing of fruits, nuts, and vegetables, (3) consider the impact of the regulation upon the agricultural industry, and (4) find that the regulation is necessary to accomplish the purposes of this chapter.
All regulations shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. However, the director, when adopting any emergency regulations for quality and maturity standards for any fruits, nuts, and vegetables, shall hold a public hearing. Notice of the hearing shall be given to all persons known to the director to be interested in the proposed emergency regulations, not less than three days prior to such hearing. This public hearing on emergency regulations is not in place of, and shall not preclude the director from holding, a public hearing within 120 days after adoption of emergency regulations to make the emergency regulations permanent.
Upon recommendation of the commissioner and upon making a finding that extraordinary circumstances have resulted in the need for inspection of imported fruits, nuts, or vegetables pursuant to this division, the board of supervisors of a county may establish a schedule of fees to be charged to the importer, by the commissioner, for the recovery of costs connected with the commissioner’s inspection in order to assure compliance with this division. This authority applies only to inspections conducted at ports of entry or points of initial availability inspected by the commissioner.
The authority of the board of supervisors to establish a schedule of fees under this section applies only when a mandatory inspection or certification program presently exists in the state for the same commodity and where a fee is collected pursuant to authority granted in Article 5 (commencing with Section 42761) or Article 6 (commencing with Section 42791).
In no case may the fees established for inspection of imported fruits, nuts, and vegetables exceed the fees set for the mandatory inspection or certification program.
The secretary may adopt regulations, including, but not limited to, establishing recommended county enforcement cost recovery fees.
In addition to any other penalties available under the law, the commissioner may place a hold order on any lot of fruits, nuts, or vegetables on which he or she has assessed a fee pursuant to this section if the importer has failed to pay that fee.
ARTICLE 5. Inspection and Certification by the Director [42761. - 42763.]
The director may inspect and certify to any marketing order advisory board, handler, association, or financially interested person the analysis, classification, quality, or condition of any fruits, nuts, vegetables, or other agricultural commodities. The director may adopt necessary regulations for the purpose of carrying out this article.
The regulations may include reasonable fees which are to be charged for such services and for the acceptance of advance fees to effectuate such inspection. Any fees so established shall be based upon the approximate cost of the service to be rendered.
Any money which is received pursuant to this article shall be paid into the Department of Food and Agriculture Fund to be expended in carrying out this article.
ARTICLE 6. Inspection and Certification by a County Commissioner [42791. - 42796.]
The commissioner of each county and any qualified representative of the commissioner may, upon request, issue certificates which state that the fruits, nuts, or vegetables which have been inspected meet all the requirements of this division or the requirements of the state or country of intended destination.
The certificate shall contain a description of the fruits, nuts, or vegetables which were inspected, including quantity, indentifying marks on containers, identification of location or vehicle, and any other facts which are necessary to readily identify such lot.
The board of supervisors of a county with a mandatory inspection ordinance for any commodity may by county ordinance, in lieu of the certificate authorized by Sections 42791 and 42792, certify compliance of a product by means of a county certification stamp or device. The certification stamp or device shall be affixed to a bill of lading, invoice, or other document which shall bear the information required by Section 42792, and which shall accompany each lot or load during transportation.
The commissioner may issue the county certification stamp or device, or may authorize its use by a grower, shipper, packer, or financially interested person. Any such person shall maintain records of shipments which shall inform when the stamp or device was used and the number of containers in each lot or load represented as being so certified. The records shall be presented upon demand of the commissioner, the commissioner’s representative, or any representative of the director.
It shall be unlawful for any person who has been authorized to use a county certification stamp or device to do any of the following:
Alter the stamp or device.
Use the stamp or device to represent any lot or load of a product which is not in compliance with this division.
Use the stamp or device in a manner other than provided in this section.
The commissioner shall revoke or suspend the right of any person to use any certification stamp or device when that person violates any provision of this section.
It shall be unlawful for any person whose right to use any certification stamp or device has been revoked or suspended to refuse to surrender to the commissioner, upon demand, any unused stamps or other device issued to that person.
Any county ordinance authorized by this section shall conform with the provisions of this division and regulations adopted pursuant thereto.
The board of supervisors of the county may establish a schedule of fees for the certification inspection or certificates to be paid by owners, shippers, or other interested parties that request such certification inspection or certificates. The schedule of fees which is established for such certification inspection or certificates shall be based upon the approximate cost of the inspection which is necessary to determine that the fruits, nuts, or vegetables have met the requirements of this division or the requirements of the state or country of intended destination.
The schedule of fees may include fees for certification of fruits, nuts, or vegetables which are exempted from the general standards of the state, as provided by statute, or by regulation pursuant to Section 42682 or 42684 when shipped out of the state for commercial processing, preserving, or manufacturing under a permit of the county commissioner.
Any lot of fruits, nuts, or vegetables which bears or is accompanied by a certificate of inspection that readily identifies such lot which was issued by any commissioner or the qualified representative of the commissioner shall not be rejected from transportation or sale within this state for the purported violation of any provision of this division.
Such certified lot of fruits, nuts, or vegetables may, however, be held for inspection at any time by any enforcing officer who holds a valid standardization certificate. If such enforcing officer shall find that the certified lot of fruits, nuts, or vegetables is in violation of any provision of this division he may appeal to the director who shall within 24 hours cause a reinspection to be made of the certified lot of fruits, nuts or vegetables. The lot of certified fruits, nuts, or vegetables shall be released or rejected in accordance with the findings upon such reinspection.
The board of supervisors of the county may establish reasonable fees to cover the cost incurred by commissioners in the enforcement of standards for salad products as defined by regulations established pursuant to Section 42684.
The fees shall be based on the approximate cost of the inspection necessary to enforce the standards, and shall be paid by persons engaged in the preparation of salad products.
The director may adopt regulations, including, but not limited to, all of the following:
Establishing recommended county enforcement fees.
Establishing inspection fees applicable to processors not subject to county inspection fees.
Establishing inspection and reporting requirements for enforcement of salad product standards by the commissioners and the director.
This section applies to lots of fruits, nuts, and vegetables imported into California which have not been sold, offered for sale, distributed in this state, or have not otherwise entered commercial distribution channels in this state.
When the director or a commissioner finds a lot of fruits, nuts, or vegetables which fails to comply with this division, or regulations adopted pursuant thereto, and the person in possession requests permission to hold the lot for shipment out of state, the director or commissioner may, by permit, authorize the lot to be so held and transported, in full or as partial lots. The director or commissioner may charge a fee to cover any costs incurred for the permit and related inspections to determine compliance with this division.
ARTICLE 6.5. Standardization Program [42801. - 42813.]
Notwithstanding any other provision of this division, the director shall create an industry-funded standardization program for the purposes of implementing and enforcing this division.
The director shall adopt regulations he or she determines are reasonably necessary to carry out this article, including, but not limited to, establishing assessment rates and procedures for payment of assessments. The director shall consult with the committee created pursuant to Section 42809 prior to the adoption, amendment, or repeal of any regulations under this article.
Commencing on January 1, 1997, and until March 31, 1997, producers of commodities subject to this article may file a petition with the secretary requesting that the commodity be exempted from this article.
Upon a finding by the secretary that the petition represents not less than 51 percent of the producers of the commodity who produce not less than 51 percent of the total quantity of the commodity marketed in the preceding marketing season, the secretary shall do all of the following:
Declare the commodity exempt from this article.
Immediately repeal all regulations pertaining to the commodity adopted by the secretary pursuant to this division.
Make a determination concerning a refund of any assessments collected pursuant to this article.
Commodity exemptions granted pursuant to this section shall be effective immediately on the date of the finding specified in subdivision (b).
On and after March 31, 1997, the secretary shall exempt any commodity subject to this article and repeal all regulations pertaining to the commodity adopted by the secretary pursuant to this division if:
A written petition requesting exemption is filed with the secretary during the period commencing July 1 and ending December 31 of any year.
The secretary finds that the petition represents not less than 51 percent of the producers directly affected who have produced not less than 51 percent of the total quantity of the commodity marketed in the preceding marketing season.
The petition, prior to being submitted to the secretary, was circulated among the producers directly affected for a period not exceeding 90 days and was on a form approved by the secretary.
Exemptions granted under this section shall be effective on July 1 following the year in which the petition is filed with the secretary.
Any costs incurred by the department in processing any petition for exemption filed pursuant to this section shall be borne by the producers representing the commodity for which the petition is filed.
This section also applies to producers of any commodity who request the secretary to rescind a previously granted exemption.
All producers directly affected by this section shall provide the following information to the secretary upon filing of the written petition requesting exemption:
The correct name and address of each producer or handler.
The quantity of each commodity produced by the producer during the previous marketing season.
The secretary also may require handlers of commodities subject to this article to report quantities received from each producer in the previous season.
Any determination of compliance with this section may be based upon information provided by producers or handlers of commodities subject to this article. Failure or refusal to provide that information within the specified time does not invalidate the secretary’s findings.
A commodity producer or handler subject to Article 1 (commencing with Section 44971) of Chapter 9, or any other similar provision in this division that provides for collection of assessments and reimbursement to the director for inspection and certification activities related to the commodity may seek an exemption for that commodity pursuant to Section 42803 or 42804 and remain subject to all regulations pertaining to the commodity in effect at the time the petition for exemption is filed with the director, and thereafter until the regulations are amended or repealed.
Any producers of commodities who elect to request an exemption pursuant to this section shall pay any charges mutually agreed upon by the producer and the department for administrative services relating to the regulation of the commodity, including, but not limited to, the adoption, amendment, or repeal of regulations.
The director shall adopt regulations establishing assessment rates set by the committee established pursuant to Section 42809. The committee shall set the rates on or before March 1. The rates shall become effective the following July 1.
The establishment, alteration, rescission, or elimination of assessment rates or the repeal of regulations of exempt commodities pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. An order to repeal the regulations of exempt commodities pursuant to this section shall be transmitted within 30 days by the director to the Office of Administrative Law. The Office of Administrative Law shall file the order promptly with the Secretary of State without further review pursuant to Article 6 (commencing with Section 11349) of Chapter 3.5 of Division 1 of Title 2 of the Government Code. The order shall do all of the following:
Indicate that the regulations are being repealed pursuant to this article.
State that the order is being transmitted for filing.
Request that the Office of Administrative Law publish a notice of the filing of the order and print an appropriate reference in Title 3 of the California Code of Regulations.
All assessments collected pursuant to this article shall be deposited in the Department of Food and Agriculture Fund and shall be used only for implementing and enforcing this division.
Those commodities that are otherwise subject to a mandatory inspection fee shall pay a lower rate of assessment than those commodities that are not otherwise subject to a mandatory inspection fee.
Assessment rates for commodities that are not otherwise subject to a mandatory inspection fee shall not exceed six mills ($0.006) per container.
Assessment rates for commodities that are otherwise subject to a mandatory inspection fee shall not exceed three mills ($0.003) per container.
Notwithstanding Section 42806, on January 1, 1997, and thereafter until altered, rescinded, or eliminated, the assessment rate for those commodities that are not otherwise subject to a mandatory inspection fee shall be three mills ($0.003) per container and the assessment rate for those commodities that are otherwise subject to a mandatory inspection fee shall be one mill ($0.001) per container.
Every person acting as a handler of commodities subject to this division shall do all of the following:
Register with the director and submit reports and assessments required pursuant to this article and the regulations adopted thereunder.
Keep a complete and accurate record of commodities shipped by him or her. The records shall be in simple form and contain information as prescribed by the director.
Maintain records for a period of two years that shall be offered and submitted for inspection and audit at any reasonable time upon written demand of the director.
Every person acting as a handler of commodities subject to this division, shall be personally liable for the payment of assessments. Any handler who fails to file the required reports or pay any assessment or inspection fee by the last day of the month immediately following the month in which the commodities were shipped shall pay to the director a penalty of 10 percent of the assessment or fee determined to be due, and in addition, 112 percent interest per month on the unpaid balance.
Handlers shall maintain and file the records required pursuant to this article even if no assessments are due for a reporting period.
For the purposes of this article, “handler” means any person engaged in marketing commodities subject to this article that the person has purchased or acquired from a producer and who first prepares the commodities for market on behalf of the producer, whether as owner, agent, broker, processor, or otherwise. A producer engaged in marketing commodities subject to this article directly to a person who purchases the commodity solely for retail sale is deemed to be the handler and is subject to this section.
The secretary shall appoint a committee pursuant to subdivision (b) to provide recommendations and advice on all matters pertaining to the implementation and enforcement of this division.
The committee shall be composed of 13 voting members who have a financial interest, either personal or through their employment, in a commodity represented. The secretary shall appoint the members of the committee from a list of nominees provided by the commodity groups subject to this article, as follows:
Four members shall be appointed from the fresh fruit commodity group consisting of oranges, other citrus fruits, strawberries, and table grapes.
Two members shall be appointed to represent other fresh fruit commodities.
Four members shall be appointed from the fresh vegetable commodity group consisting of broccoli, tomatoes, and lettuce.
Two members shall be appointed to represent other vegetable commodity groups.
One member shall be appointed from other commodity groups subject to this article.
A county agricultural commissioner may be appointed by the secretary as a nonvoting member.
The committee shall meet at the request of the secretary, the committee chairperson, or upon the request of four committee members.
Any committee member who represents a commodity that has been exempted from the application of this article shall be replaced with a member chosen to maintain the balance between the commodity groups.
The committee shall appoint its own officers, including a chairperson, one or more vice chairpersons, and any other officers it deems necessary.
Committee members may participate in meetings of the committee by means of telephone conference calls.
Except as provided in subdivisions (b) and (c), the term of office of any member of the committee shall be two years.
With respect to the initial voting members of the committee, six members shall serve for one year and six members shall serve for two years, with the determinations of the term of each voting member to be made by lot. No member of the committee shall serve more than four full consecutive two-year terms. The term of the initial nonvoting member shall be two years.
Any vacancy which occurs during an unexpired term shall be filled for the unexpired term following the same procedures for initially nominating and appointing committee members.
The members of the committee shall serve without compensation, but shall be reimbursed for reasonable expenses incurred in the performance of their duties as determined by the committee and approved by the director.
The director shall adopt regulations establishing assessment rates set by the committee as required by Section 42806. In addition, the director shall seek the advice of the committee on all matters pertaining to the implementation and enforcement of this division, including, but not limited to, the annual budget, fees necessary to provide adequate inspection services, inspection procedures, work load standards, performance measures, training and supervision of inspectors, enforcement actions, and subvention of funds to counties necessary to provide uniformity in inspections throughout the state.
Except as otherwise provided in Section 42807 with respect to assessments, in adopting, amending, or repealing regulations pursuant to this article, the director shall accept the recommendations of the committee if the director determines that the recommendations are practicable and in the interests of the industry and the public. The director shall, within 30 days, provide the committee with a written statement of reasons if the director does not accept a recommendation of the committee.
ARTICLE 7. Powers of Enforcing Officers [42821. - 42825.]
An enforcing officer may enter and inspect any place or conveyance within the county or district over which he has jurisdiction, where any fresh or dried fruits, nuts, or vegetables are produced, stored, packed, delivered for shipment, loaded, shipped, being transported, or sold.
He may inspect all fresh or dried fruits, nuts, and vegetables and their containers and equipment found in any such place or conveyance. He may also take for inspection, such representative samples of the produce and such containers, as may be necessary to determine whether or not this division has been violated and may subject such samples of produce to any method of inspection or testing.
An enforcing officer shall cause the prosecution of any person whom he knows or has reason to believe is guilty of violating any provision of this division.
Any enforcing officer may, while enforcing this division, seize and hold as evidence all or any part of any pack, load, bulk lot, consignment or shipment of fresh or dried fruits, nuts, or vegetables which is packed, delivered for shipment, loaded, shipped, or being transported, or sold in violation of this division, or any container of such product, as may in his judgment be necessary to secure the conviction of the party he knows or believes has violated or is violating any provision of this division.
Any prosecution for the violation of any provision of this division may be made in any county where any part of the offense occurred.
Any evidence which is taken by an enforcing officer in any county may be admitted in evidence in any prosecution in any other county.
ARTICLE 8. Samples [42851. - 42852.]
Any sample which is taken pursuant to this division is prima facie evidence of the true conditions of the entire lot in the examination of which the sample was taken. The presumption established by this section is a presumption affecting the burden of proof.
A written notice of violation, which is issued by a duly qualified representative of the director or by any commissioner or any qualified representative of the commissioner, which states that a certain lot of produce violates any provision of this division and based upon the examination of such sample, is prima facie evidence of the true condition of the entire lot. The presumption established by this section is a presumption affecting the burden of proof, but it does not apply in a criminal action.
ARTICLE 9. Warning Notices and Disposal Orders [42881. - 42886.]
The enforcing officer may, and if requested by an enforcing officer of the county of destination shall, affix a warning notice to any vehicle or other means of transportation, or to any load or lot, of fruits, nuts, or vegetables which do not conform to the standards which are established by this division, whether or not the fruits, nuts, or vegetables are exempt from such standards, and serve a disposal order upon the owner or person that has custody or possession of any such load or lot.
The warning notice, the disposal order which directs the proper disposition of such products, and the disposal order receipt to be signed by an enforcing officer at destination which confirms such disposition, shall be in the form which is specified by, and provided by, the director.
The enforcing officer at the point of destination of such load or lot shall determine that the load or lot has been delivered to the consignee at the destination which is specified in the order and shall then release the load or lot and contersign the disposal order receipt so given to him. He shall immediately forward the receipt to the enforcing officer who served the disposal order.
It is unlawful for any person to deliver any load or lot of fruits, nuts, or vegetables which is subject to a disposal order to any person or destination except the person or destination which is shown on the disposal order, unless he is specifically authorized in writing to do so by an enforcing officer.
It is unlawful for any person to dispose of any load or lot of fruits, nuts, or vegetables which is subject to a disposal order prior to the release in writing of the load or lot by the enforcing officer at the point of destination. This section does not, however, make it unlawful for any person to unload and store any load or lot of fruits, nuts, or vegetables which is subject to a disposal order.
It is unlawful for any person to use or dispose of any fruits, nuts, or vegetables, for which a disposal order has been issued, in any manner or for any purpose except the manner or purpose for which such disposal order was issued, unless such person is specifically authorized in writing to do so by an enforcing officer.
ARTICLE 10. Shippers and Transporters [42911. - 42912.]
Any person, forwarding company, or common carrier may decline to ship or transport any fruits, nuts, or vegetables if it is notified by any enforcing officer of this division, that such products are found to be delivered for shipment in violation of this division.
Any such person, forwarding company, or common carrier may reserve the right, in any receipt, bill of lading, or other writing which is given to the consignor, to reject for shipment and to return to the consignor or hold at the expense and risk of the consignor all fruits, nuts, or vegetables, which upon inspection are found to be delivered for shipment in violation of this division.
A carrier which is subject to the jurisdiction of the Public Utilities Commission that transports any fruits, nuts, or vegetables in the ordinary course of its business as a carrier shall not be deemed to be in violation of any provision of this division, unless such carrier shall willfully fail or refuse to stop the transportation of any fruits, nuts, or vegetables with reasonable dispatch after being notified in writing by any enforcing officer of this division that such products are found to be delivered for shipment in violation of this division.
ARTICLE 11. Violations [42941. - 42951.]
It is unlawful for any person to prepare, pack, place, deliver for shipment, deliver for sale, load, ship, transport, cause to be transported, or sell any fruits, nuts, or vegetables in bulk, or in any container or subcontainer, unless such fruits, nuts, and vegetables, and their containers, conform to the provisions of this division or the regulations promulgated thereunder.
It is unlawful for any person to prepare, pack, place, deliver for shipment, load, ship, transport, or sell a deceptive pack, bulk lot, bulk load, load, arrangement, or display of fresh or dried fruits, nuts, or vegetables.
It is unlawful for any person to mislabel any fruit, nut, or vegetable, or place or have any false or misleading statement or designation of quality, grade, trademark, or trade name, on any wrapper or container, or on the label or lining of any container of any fresh or dried fruit, nut, or vegetable, or on any placard which is used in connection with, or which has reference to, any fresh or dried fruit, nut, or vegetable or container, bulk lot, bulk load, load, arrangement, or display of fresh or dried fruits, nuts, or vegetables.
This section requires the obliteration of incorrect or unauthorized labels or markings prior to commercial reuse of containers. The use of empty containers solely as a platform for retail display of other properly labeled containers containing the commodity for sale, or the use of containers for purposes not involving the sale of the product therein, does not constitute “commercial reuse” for these purposes.
This section does not require the obliteration of old markings or labels by a grower employing a used container solely to transport, and not for display or sale, that grower’s own agricultural products to or from, or both to and from, a certified farmers’ market.
It is unlawful for any person to make any statement, representation, or assertion orally, by public outcry, or proclamation, or in writing, or by any other manner or means whatever, which concerns the quality, size, maturity, condition of, or any other matter which relates to fruits, nuts, or vegetables, which is false, deceptive, or misleading in any particular.
It is unlawful for any person to remove or dispose of any fruits, nuts, or vegetables, or their containers to which any warning tag or notice has been affixed, or to remove the warning tag or notice from the place where it is affixed, except under a written permit to do so from an enforcing officer or under his or her specific direction.
A violation of this section is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) nor more than three thousand dollars ($3,000), by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
Except as otherwise provided, it is unlawful for any person to pack any fruits, nuts, or vegetables in layers in any container which has straight sides, unless there is approximately the same numerical count in each layer.
All packed fruits, nuts, or vegetables shall be so packed that they will not move in the container. Fruits or vegetables which, after having been in storage or after having been shipped, fail to meet this requirement due to unavoidable natural shrinkage which occurs after packing, do not violate this section.
It is unlawful for any person to pack any mixture of fresh or dried fruits, with or without nuts, glazed fruits, or confections, unless the contents of the lower layers or unexposed portion are of the same kind and quality, and in the same proportion, as to count, volume, and weight, as the contents of the top layer or the exposed portions.
A consumer type package, also known as “gift pack,” need not, however, comply with such requirement if it complies with all of the following requirements:
The package is sold in its unbroken form and is clearly and conspicuously marked “consumer package” or “gift pack”.
The package is clearly and conspicuously marked to indicate the contents of the unexposed portion.
The contents of the lower layers or the unexposed portion are of the same size and quality as the top layer or the exposed portion.
It is unlawful for any person to refuse to submit any container, subcontainer, load, or display of fruits, nuts, or vegetables to the inspection of any enforcing officer, or to refuse to stop any vehicle which contains any fruits, nuts, or vegetables, for the purpose of inspection by an enforcing officer.
A violation of this section is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) nor more than three thousand dollars ($3,000) or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
It is unlawful for any person to alter in any respect any certificate of inspection, notice of violation, report, statement, or other document that is referred to in this division, which is issued by an enforcing officer.
A violation of this section is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) nor more than three thousand dollars ($3,000) or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
It is unlawful for any person to prepare, pack, place, deliver for shipment, deliver for sale, load, ship, transport, or sell any nuts, fresh fruits, or vegetables in bulk, or in any container or subcontainer, unless 90 percent by weight or more of such fruits, nuts, or vegetables in bulk, or in any container or subcontainer, as established by the inspection of a representative sample, are free from insect injury which has penetrated or damaged the edible portion, worms, mold, or decay.
This section applies only to those fruits, nuts, or vegetables for which specific quality standards are not otherwise established in this division.
It is unlawful for any person to adulterate any solution or chemical or to alter any instrument or any other device provided to an enforcing officer for use in determining compliance with this division or the regulations adopted pursuant to this division.
A violation of this section is a misdemeanor, punishable by a fine of not less than one hundred dollars ($100) or more than three thousand dollars ($3,000), by imprisonment in a county jail for not more than six months, or by both that fine and imprisonment.
ARTICLE 12. Criminal Penalties and Procedures [42971. - 42971.]
Unless otherwise specified, a violation of this division is an infraction punishable by a fine of not more than five hundred dollars ($500).
A conviction of a second or subsequent violation of this division is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
ARTICLE 13. Civil Penalties and Remedies [43001. - 43004.]
Any person that violates any provision of this division shall, in addition to any penalty which is otherwise provided, be liable civilly, in an action brought by the director, for a penalty in an amount which is equal to the value which the fruits, nuts, or vegetables involved in the violation would have if they conformed to the requirements of this division.
The value of such noncomplying fruits, nuts, and vegetables shall be the current market value of the lowest priced grade of a marketable commodity of like kind and nature at the time and place of the violation. Any money which is recovered under this section shall be paid into the Department of Agriculture Fund.
The director may bring an action to enjoin the second or other repeated violation, or threatened second or other repeated violation, of any provision of this division in the superior court in and for the county in which the violation occurred or is about to occur.
Any proceeding pursuant to this section shall conform to the requirements of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure. The director is not, however, required to allege facts necessary to show or which tend to show lack of adequate remedy at law or which show or tend to show irreparable damage or loss.
In lieu of civil prosecution, the secretary or the commissioner may levy a civil penalty against any person violating this division or any regulation adopted pursuant to its provisions. Except as provided in subdivisions (b) and (c), the civil penalty for each violation shall be, for a first violation, a fine of not more than five hundred dollars ($500). For a second or subsequent violation, the fine shall be not less than one hundred dollars ($100), nor more than one thousand dollars ($1,000).
The secretary or the commissioner may, for a first violation, levy a civil penalty not to exceed five hundred dollars ($500) for each violation of Section 44973, 44982, 44983, 44984, 45031, 45034, or 45035. For a second or subsequent violation, or for a violation involving avocados worth five hundred dollars ($500) or more, the fine shall be not less than two hundred fifty dollars ($250) nor more than five thousand dollars ($5,000).
Before a civil penalty is levied, the person charged with the violation shall receive notice of the nature of the violation and shall be given an opportunity to be heard. This shall include the right to review the evidence and a right to present evidence on his or her own behalf.
The person fined may appeal to the secretary within 10 days of the date of receiving notification of the fine. The following procedures apply to the appeal:
The appeal need not be formal, but it shall be in writing and signed by the appellant or his or her authorized agent, and shall state the grounds for the appeal.
Any party may, at the time of filing the appeal or within 10 days thereafter, present written evidence and a written argument to the secretary.
The secretary may grant oral arguments upon application made at the time written arguments are filed.
If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days before the date set for the oral argument. The times may be altered by mutual agreement.
The secretary shall decide the appeal on any oral or written argument, brief, and evidence that he or she has received.
The secretary shall render a written decision within 45 days of the date of appeal or within 15 days of the date of oral arguments.
On an appeal pursuant to this section, the secretary may sustain, modify by reducing the amount of the fine, or reverse the decision of the commissioner. A copy of the secretary’s decision shall be delivered or mailed to the appellant and the commissioner.
Review of the decision of the secretary may be sought by the appellant pursuant to Section 1094.5 of the Code of Civil Procedure.
After the exhaustion of the appeal and review procedures provided in this section, the commissioner, or his or her representative, may file a certified copy of a final decision of the commissioner that directs the payment of a civil penalty and, if applicable, a copy of any decision of the secretary, or his or her representative, rendered on an appeal from the commissioner’s decision, and a copy of any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. Pursuant to Section 6103 of the Government Code, the clerk of the superior court shall not charge a fee for the performance of any official service required in connection with the entry of judgment pursuant to this section.
Any action for any civil penalty or other civil remedy which is provided for under this division shall be commenced within three years from the date of the alleged violation.
ARTICLE 14. Abatement [43031. - 43041.]
Any lot of fruits, nuts, or vegetables, including its containers, which is not in compliance in all respects with this division and the regulations which are issued pursuant to it, is a public nuisance.
Any enforcing officer, if he has reason to believe that any lot of fruits, nuts, or vegetables is not in compliance with this division or such regulations, may hold such lot pending proceedings to condemn and abate such nuisance, as provided in this article.
The officer may affix to any lot so held a tag or notice which warns that the lot is held and states the reason why it is held. It is unlawful for any person except an authorized enforcing officer to detach, alter, deface, or destroy any such tag or notice which is affixed to any such lot, or to remove or dispose of such lot in any manner or under conditions other than as prescribed in such tag or notice, except upon written permission of an authorized enforcing officer or by the order of a court.
The officer by whom any lot of fruits, nuts, or vegetables is held shall cause notice of noncompliance to be served upon the person in possession of the lot. The notice of noncompliance shall comply with all of the following requirements:
Include a description of the lot.
State the place where, and the reasons for which, the lot is held.
Give notice that the lot is a public nuisance and subject to disposal as provided in this article, unless within a specified time it is reconditioned or the deficiency otherwise corrected so as to bring it into compliance.
If the person served is not the sole owner of the lot, or does not have authority as agent for the owner to bring the lot into compliance, such person shall, in writing, notify the officer by whom such lot is held of the name and address of the owner and all other persons that are known to him to claim an interest in the lot. Any person that is served with such a notice of noncompliance is liable for any loss which is sustained by such owner or other person whose name and address he has knowingly concealed from such officer.
If the lot has not been reconditioned or the deficiency otherwise corrected so as to bring it into compliance within the time specified in the notice, the enforcing officer shall cause a copy of the notice to be served upon all persons that are designated in writing by the person in possession of the lot to be the owner or to claim an interest in it.
Any notice which is required by this article may be served personally or by mail which is addressed to the person to be served at his last known address.
If the lot which is held is perishable or subject to rapid deterioration, the enforcing officer may file a verified petition in superior court to destroy the lot or otherwise abate the nuisance. The petition shall show the condition of the lot, that the lot is situated within the county, that the lot is held, and that notice of noncompliance has been served as provided in this article. The court may thereupon order that the lot be forthwith destroyed or the nuisance otherwise abated as set forth in the order. A proceeding under this section is a limited civil case if the value of the property in controversy is less than or equal to the maximum amount in controversy for a limited civil case under Section 85 of the Code of Civil Procedure.
If the lot which is held is not perishable or subject to rapid deterioration, the enforcing officer shall immediately report the condition of the lot to the director. Within five days from the receipt of such report, the director may file a petition in the superior court in the county where the lot is situated for an order to show cause, returnable in five days, why the lot should not be abated.
The owner or person in possession on his own motion within five days from the expiration of the time specified in the notice of noncompliance may file a petition in such court for an order to show cause, returnable in five days, why the lot should not be released to petitioner and any warning tags previously affixed removed from it. Final determination by the court in either case shall be within a period of not to exceed 20 days from the date such petition was filed.
The court may enter judgment ordering that the lot be condemned and destroyed in the manner which is directed by the court or relabeled, denatured, or otherwise processed, or sold or released upon such conditions as the court in its discretion may impose to insure that the nuisance will be abated. If the lot is sold by order of the court, the costs of storage, handling, and reconditioning or disposal shall be deducted from the proceeds of sale and the balance, if any, paid into court for the owner.
ARTICLE 15. County Fees [43061. - 43065.]
The board of supervisors of a county may require registration and establish a schedule of annual registration fees to be paid by any person who acts as a wholesaler of fresh fruit and vegetables under any license required under Chapter 7 (commencing with Section 56101) of Division 20, and who maintains an office or salesroom or conducts that business in the county.
Any funds derived under this section shall be used only for the enforcement of wholesale inspections of fruits and vegetables pursuant to this division.
The maximum fee that may be established pursuant to this section shall be determined at the discretion of the board of supervisors of a county and shall not exceed five hundred dollars ($500).
Section 43061 does not apply to any of the following:
Any person who only handles products other than fruits and vegetables, as defined in Section 42510.
Any person that is licensed only as a broker, as defined in Section 56103.
“Costs,” as used in this article, means direct costs only in the administration and enforcement of this division at places other than places operated by retail merchants, as that term is described in Section 56161.
It is unlawful for any person to operate as a wholesaler of fruits and vegetables under this division in any county with registration as established pursuant to this article unless that person is registered and has paid the required fee pursuant to this article.
A fruit and vegetable wholesaler registration issued pursuant to Section 43061 may be refused, revoked, or suspended by the commissioner for any violation of either this division or a regulation issued pursuant to this division.
Procedures for the refusal, suspension, or revocation of a registration shall be the same as those contained in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
ARTICLE 16. California-Grown Seal [43100. - 43100.]
The terms “California grown,” “California-grown,” and similar terms with identical connotations shall be used in the labeling or advertising of agricultural products as follows:
The terms “California grown,” “California-grown,” and similar terms with identical connotations may be used for marketing, advertising, or promotional purposes only to identify food or agricultural products that have been produced in the state or harvested in its surface or coastal waters.
The secretary may adopt guidelines, rules, and regulations to further define acceptable uses of the terms “California grown,” “California-grown,” and similar terms with identical connotations and to prevent any misleading use of the terms.
A false, deceptive, or misleading use of the term “California grown,” “California-grown,” or similar terms with identical connotations, or of any seals or other identities officially adopted by the department in connection with these terms, or any unwarranted use of these items or terms, shall be subject to the provisions and penalties set forth in Chapter 9 (commencing with Section 890) of Part 1 of Division 1.
CHAPTER 3. Exempt Fruits, Nuts, and Vegetables [43331. - 43333.]
ARTICLE 4. Violations [43331. - 43333.]
It is unlawful for any person to use or dispose of any fruits, nuts, or vegetables for which a permit has been issued, in any manner or for any purpose except the manner or purpose for which such permit was issued, unless he is specifically authorized in writing to do so by an enforcing officer.
It is unlawful for any person who has been issued a valid permit pursuant to regulations established by the director to sell, buy, receive, transport, deliver, or cause to be transported, or for any person to transport unless such a permit accompanies the vehicle which is transporting, any fruits, nuts, or vegetables which are exempt from the standards which are established in this chapter, except a person that comes within one of the following classes:
A common carrier which operates over a regular route or between fixed termini and transports any such fruits, nuts, or vegetables in good faith and in accordance with its duties as a common carrier.
A person that is transporting fruits, nuts, or vegetables from the orchard or field where they were produced to a packing plant within the state for first processing, grading, or packing.
A person that is transporting fruits, nuts, or vegetables in accordance with the terms of a disposal order which is duly issued pursuant to Section 42881.
It is unlawful for any person to sell or offer for transportation or delivery any fruits, nuts, or vegetables which fail to conform to the standards of this division to any person that is required to have a permit pursuant to Section 43332 unless such person has such permit.
CHAPTER 4. Containers [43571. - 43571.]
ARTICLE 4.5. Out-of-State Processing [43571. - 43571.]
The provisions of this division shall not be construed to prohibit the shipment, transportation, or movement of melons and vegetables in field bins or bulk out of this state into any adjoining states within the United States, if all of the following exist:
Melons and vegetables are grown in this state and adequate facilities are available in the adjoining state to handle and pack the melons and vegetables as set forth in this division.
The melons and vegetables are not trimmed or vacuum cooled in California prior to packing.
The activities are carried out on behalf of the grower or shipper as part of a continuous activity of harvesting, wrapping, packing, processing, cooling, vacuum cooling, applying of controlled atmosphere, or otherwise preparing melons and vegetables for shipment and sale in accordance with the requirements of this division.
The grower or shipper has obtained a permit from the secretary authorizing the movement into an adjoining state and has complied with the rules and regulations, including those requiring inspection in the state of destination, as the secretary may require.
The secretary has obtained verification from the state officials of the destination state satisfactory to the secretary that the melons and vegetables will be handled and packed in accordance with the requirements specified in the permit. A permit shall be valid for a period not to exceed 180 days and may be renewed for successive 180-day periods. A permit shall be canceled for failure to meet the requirements specified.
CHAPTER 9. Avocados [44971. - 45042.]
ARTICLE 1. Container Certification and Fees [44971. - 44988.]
The handling and marketing of avocados is affected with the public interest. The provisions of this chapter are enacted for the protection of the avocado industry and for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
Avocados produced in this state which are being prepared for market shall be certified as complying with the maturity and quality provisions established by regulations of the director.
If the director finds that avocados which are being prepared for market conform to the applicable standards, he shall so indicate by an official stamp placed on each flat, carton, or any other container by, or under the supervision of, the inspector, stating that the applicable standards have been complied with on the date of pack. Except as provided in this chapter or regulations of the director, it is unlawful for any person to ship to market or otherwise place into the channels of trade any container of avocados which does not bear the official stamp placed thereon pursuant to the provisions of this chapter and regulations promulgated pursuant to this chapter.
It is unlawful for any person, including a grower, packer, handler, or retailer to pack, handle, or sell any lot of avocados which are not in compliance with maturity and quality standards established through regulations of the director.
Any violation or threatened violation of any provision of this chapter or regulations of the director established pursuant to this chapter is unlawful and shall constitute grounds for injunctive relief and the imposition of civil penalties of not less than five hundred dollars ($500) and not exceeding five thousand dollars ($5,000) per violation. This action may be brought in a court of competent jurisdiction by the director or district attorney of a county in which a violation or threatened violation occurred. The California Avocado Commission and the Avocado Inspection Committee are also authorized to bring an action for injunctive relief on grounds provided for in this chapter. In bringing this action, the commission or committee is not required to allege facts necessary to show or which tend to show lack of an adequate remedy at law, or which show or tend to show irreparable damage or loss. Prior to commencing this action, the commission shall allow the director the opportunity to bring an action for injunctive relief following the same procedure as provided for the committee in Section 45015. Notwithstanding the director’s decision on whether or not to bring an action for injunctive relief, nothing in this section or in Section 45015 shall be construed as preventing the commission from bringing an action for injunctive relief.
It is unlawful for any person to fail to comply with the inspection or certification requirements of this chapter. A violation is a misdemeanor punishable by a fine of not less than two hundred fifty dollars ($250) nor more than five thousand dollars (5,000) or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
Each violation or threatened violation involving a lot of avocados shall be treated as a separate violation. Any number of defendants in any number of counties may be joined in one action even though the violations or threatened violations are not the same, and jurisdiction for the action may be established in any county in which any of the violations or threatened violations occur.
Each handler of avocados shall pay to the director an inspection and certification fee each month. The fee shall be based on the number of pounds certified as determined by the director. However, in no event shall the fee be greater than twenty-five cents ($0.25) per hundredweight of pounds prepared for market. The number of pounds certified shall be reported monthly to the director, and these reports shall include all information required by the director. The fee required by this section shall be paid no later than the 10th day of the month following the month for which the fee is payable. Any handler who fails to pay the fee within the time required shall pay the director a penalty of 10 percent of the amount determined to be due, and, in addition, 112 percent interest per month on the unpaid balance. The director may adjust the fee from time to time and reduce it whenever he or she finds the cost of administering this article may be defrayed from revenue derived from lower fees.
Notwithstanding subdivision (a), whenever the fees derived from pounds certified do not cover the cost of inspection, the director may establish hourly and mileage rates for inspection and certification of avocados based upon the cost of providing that inspection and certification. However, alternatively, a handler may present his or her avocados for inspection and certification on a date, time, and location specified by the director and pay the fees charged pursuant to subdivision (a).
The moneys which are received pursuant to this chapter shall be used only for the administration and enforcement of this chapter, including, but not limited to, payments to the county agricultural commissioners and to institutions of scientific research for improving the inspection and certification methods required by this chapter.
The director may adopt such regulations as he determines are reasonably necessary to carry out the provisions of this chapter.
The director may enter into an agreement with any county agricultural commissioner for assistance in the enforcement of this chapter.
It is unlawful for any person to fail to comply with the provisions of this chapter and the regulations of the director adopted pursuant thereto.
Every person who prepares avocados grown in this state for market shall report to the director, prior to this preparation, the date and time these avocados will be prepared for market. Avocados and their containers shall be made available for inspection and certification at the time of preparation for market.
The director may prescribe a higher frequency of inspection or surveillance of a person or firm handling or packing avocados for sale, if the director determines either that repeated violations of this chapter have occurred, or has probable cause to believe that a violation is about to occur or has occurred. The director may charge the person or firm the costs of performing the higher frequency of inspection or surveillance necessary to prevent violations of either this chapter or regulations of the director. Costs shall be based upon the approximate cost of the service which is rendered. This charge shall be in addition to the fee provided for in subdivision (a) of Section 44975 and shall be paid in accordance with subdivision (a) of Section 44975. Any person assessed a cost under this subdivision shall have the right of appeal to the director.
Inspection to determine maturity of avocados may be performed prior to preparation for market, either at roadside by the orchard or enroute to or at the first point of packing. The results shall serve as a cause for placing all or any sizes of the avocados under a disposal order for testing after grading or packing when the oil content is less than required by this chapter.
Any lot of avocados suspected as being in noncompliance with the provisions of this chapter shall be placed under a disposal order for control to a specified location in this state for disposition.
Nothing in this section shall be construed as requiring inspection prior to preparation for market.
For purposes of this section “roadside inspection” means an inspection conducted for quality and maturity standards at or near the place of production, or on the transporting vehicle while the product is in transit, or at a place where avocados are being stored.
Each handler of avocados shall prepare and retain for two years up-to-date records of daily transactions. These records shall contain, but not be limited to, the amount of avocados received, shipped, packed, transported, dumped, and on hand at the end of each day. Amounts for each transaction shall be kept by variety in pounds, number of containers by container type, and size when the avocados have been segregated by size.
It shall be unlawful for any person to falsify or cause to be falsified the record or information required to be kept pursuant to Section 44982.
Any handler, packer, shipper, transporter, or grower of avocados who is required to keep records pursuant to Section 44982, shall allow the director or his or her authorized agent to examine or inspect these records during normal business hours and any other time when avocados are being packed or otherwise handled in a manner subject to the provisions of this chapter.
All records maintained pursuant to Section 44982 and made available to the director, shall be confidential and shall not be disclosed except when required in an administrative or judicial proceeding.
The director may authorize the issuance and use of, or revocation of, a certification stamp as provided for under this chapter.
It is unlawful for any person to do any of the following:
Use a certification stamp for certifying containers or lots of avocados for other than containers previously inspected by the director’s authorized agent and designated to be stamped.
Use the stamp at any time or in any manner other than provided in this chapter or contrary to the directions of the director’s authorized agent authorizing the use of the stamp.
Refuse to surrender, each day after use, or upon demand of the director’s authorized agent, any certification stamp authorized to be used.
Counterfeit or alter or use any counterfeit or altered certification stamp.
A violation of this section is a misdemeanor punishable by a fine of not less than two hundred fifty dollars ($250) nor more than five thousand dollars ($5,000) or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
In lieu of the certification stamp required under this chapter, the director may authorize issuance of a permit to any person or firm engaged in preparing avocados for market on an intermittent basis, or any other person on an emergency basis. The permit shall have an assigned number, and the containers of avocados for which the permit is issued shall be printed or labeled with the words “avocado permit” immediately followed by the number designation. Except on an emergency basis, a permit shall not be issued for more than ten containers and not more than four permits may be issued to any person, firm, or family of the same household during the calendar year.
The director may promulgate regulations which establish maturity standards governing the time at which avocados may be harvested. The regulations shall include minimum maturity requirements for the various varieties of avocados produced. The standards may be established in the form of a variable maturity range, which shall include a system for determination of avocado maturity. This system shall prescribe criteria and a method by which the dates of harvest and required maturity level, as measured by a recognized method of measuring avocado maturity, may be established by the director during each harvest season.
The director may modify these requirements, from time to time, in order to insure that the quality standards for marketing avocados are maintained. These modifications shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
ARTICLE 2. Avocado Inspection Committee [45011. - 45021.]
There is in the department the Avocado Inspection Committee, which consists of six members. The director shall appoint three members and one alternate member who shall be producers of avocados and three members and one alternate member who shall be representatives of handlers engaged in the packing of avocados from a list of nominees provided by the California Avocado Commission. The director may appoint one additional member of the committee, who shall be a public member. The committee shall meet on the direction of the director or when requested by a majority of the committee.
Upon the director’s request, the committee shall submit to the director the name of a natural person, who shall be a citizen and resident of this state and not a producer, shipper, or processor nor financially interested in any producer, shipper, or processor, for appointment by the director as a public member of the committee. The director may appoint this nominee as the public member on the committee. If the nominee is unsatisfactory to the director, the committee shall continue to submit nominees until the director has made a selection. Any vacancy in the office of the public member of the committee shall be filled in the same manner as used in initially selecting the public member. The public member of the committee shall represent the interests of the general public in all matters coming before the committee and shall have the same voting and other rights and immunities as other members of the committee.
The committee member’s term of office shall be two years. Appointment of the first members shall be made so that the terms of office of three members shall expire at the end of one year and three at the end of two years. Thereafter, appointment shall be for full two-year terms. Each committee member shall be limited to four consecutive terms in office. Any vacancies which occur during an unexpired term shall be filled for the unexpired term following the same procedure used for initially nominating and appointing members.
The committee shall be advisory to the director, and to the California Avocado Commission if it decides to act pursuant to Section 67095, on all matters pertaining to this chapter, shall review all proposed regulations relating to this chapter, and shall make recommendations concerning the inspection and certification services under this chapter, including, but not limited to, the annual budget and fees necessary to provide adequate inspection and certification services; inspection procedures; training and supervision of inspectors; and enforcement actions, including the imposition of any fees and costs for inspection and surveillance provided for in subdivision (c) of Section 44975.
In adopting regulations pursuant to this chapter, the director shall accept the recommendations of the advisory committee whenever he or she finds them to be practicable and in the interests of the avocado industry and the public. The director shall provide the committee with a written statement of reasons within 15 working days, whenever he or she does not accept the committee recommendation.
In the case of recommendations involving enforcement actions based on actual or alleged violations of this chapter, the committee by majority vote may bring an action for injunctive relief as provided for in Section 44974, retain private legal counsel for this purpose, and use fees provided for under this chapter to pay all reasonable fees and costs incurred in bringing the action. However, legal fees and costs incurred in each separate action which exceed twenty thousand dollars ($20,000) shall not be paid unless concurred in by the director. Prior to commencing this action, the committee must review all available information, recommend specific enforcement action to the director, and allow the director the opportunity to respond as provided for in this section. Notwithstanding the director’s response, nothing in this section shall be construed as preventing the committee from bringing an action for injunctive relief.
Committee members shall be compensated for all reasonable expenses incurred in the performance of their duties, as determined by the committee and concurred in by the director.
The committee may recommend to the director that avocados subject to weather-related damage not be harvested for a specified period of time and the director may restrict harvesting based on that recommendation.
The director shall adopt regulations which govern the committee’s recommendations made pursuant to this section. The regulations shall include, but not be limited to, all of the following:
The maximum period of time for which harvesting may not be done.
The geographical region for which the recommendation would be made.
The minimum level of damage required in order to make a recommendation.
The manner in which affected growers and handlers are to be notified of the decision of the director.
A definition of weather-related damage.
Procedures and criteria for issuing exemptions to growers from the decision of the director made pursuant to this section and for the handling of avocados from an exempt grower.
The requirements specified in this chapter, including, but not limited to, the setting, collection, and handling of inspection and certification fees and other costs of service, inspection frequency and procedures, hiring, training, and supervision of inspectors and other necessary personnel, use and revocation of an official stamp or permit, reports prior to preparing avocados for market, and recordkeeping with respect to avocados, may be conducted by the California Avocado Commission instead of the director, if authorized in the manner specified in Section 67095.
The enforcement and regulatory authority of the director which is specified in this chapter shall remain in full force and effect. However, the authority of the director shall be exercised in consultation and cooperation with the commission during any period in which the commission exercises its authority pursuant to Section 67095.
All expenditures incurred by the director in carrying out his or her duties under subdivision (b) shall be reimbursed from fees collected under this chapter.
ARTICLE 3. Proof of Ownership [45031. - 45042.]
Every person who is in possession of over 25 pounds of avocados that are produced in this state shall possess a record of proof of ownership of the avocados.
Upon probable cause to believe any avocados regulated by this chapter are in unlawful possession, proof of ownership shall be made available for inspection upon the request of the director or any peace officer. If the director has probable cause to believe that any avocados regulated by this chapter are in unlawful possession, he or she may request a peace officer to stop the vehicle pursuant to Section 45037 for inspection.
The proof of ownership record shall contain all of the following information:
The name, address, telephone number, and signature of the seller or the seller’s authorized representative.
The name and address of the buyer or consignee if not sold.
The common name “avocados” and the quantity of the avocados.
The date of transaction.
A bill of lading, bill of sale, certified farmers certificate, any data obtainable by electronic transmission which is accessible to a common carrier, or a similar type document shall be considered proof of ownership for purposes of this chapter.
It is unlawful for any person to knowingly falsify or cause to be falsified any information in a record intended to show proof of ownership.
A copy of the proof of ownership record shall be retained by the buyer and seller for a period of one year after sale.
This article does not apply to avocados transported and accompanied by a valid permit, disposal order, or certificate issued by the director or the commissioner for any reason other than to comply with this article.
Upon probable cause to believe avocados regulated by this chapter are being unlawfully transported, any peace officer may stop the transporting vehicle and request a record of proof of ownership of the avocados.
Upon reasonable belief that a person is in unlawful possession of avocados regulated by this chapter, the avocados may be seized by the director or any peace officer and shall be turned over to the custody of the director. The director may hold the commodity on the premises where it was seized until disposed of pursuant to Section 45040.
The director or a peace officer may investigate to ascertain the ownership of any avocados that have been held pursuant to this chapter. If the lawful owner is located, the avocados shall be released to the owner, or his or her agent. The director may require reasonable payment to cover costs incurred in the storing of the avocados, but not to exceed the value of the avocados.
If for any reason the avocados are not released to the rightful owner after being in the custody of the secretary for 72 hours or, in the case of highly perishable avocados, a shorter period of time that the secretary deems necessary, the secretary may either sell the avocados by private sale at fair grower market value or, after 72 hours from the time of seizure, donate the avocados to a nonprofit charitable organization or an on-campus food pantry serving students enrolled in an institution of public postsecondary education. If donated, the avocados shall not be sold by the receiving party. If sold by the secretary, all of the proceeds derived from the sale of the commodity shall be held by the secretary for a period of not less than six months, during which time the lawful owner of the avocados may submit satisfactory proof of ownership and obtain possession of the proceeds. The secretary may require the payment by the owner of an amount sufficient to cover the costs incurred for storage and sale of the avocados, but not to exceed the sale price of the avocados. If, after retention of the proceeds for a period of at least six months, no demand is made or if proof of ownership is not supplied, the secretary shall deposit the proceeds of the sale of the avocados with the California Avocado Commission.
If the avocados are unfit for human consumption, the secretary may destroy them.
Unless otherwise specified, a violation of this article is an infraction punishable by a fine of not more than five hundred dollars ($500).
A conviction of a second or subsequent violation of this article is a misdemeanor punishable by a fine of not less than two hundred fifty dollars ($250) nor more than five thousand dollars ($5,000), or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.
A violation of this article is a misdemeanor punishable by a fine of not less than two hundred fifty dollars ($250) nor more than five thousand dollars ($5,000), or by imprisonment in the county jail for not more than six months, or by both the fine and imprisonment, if the retail value of the avocados in violation is in excess of five hundred dollars ($500).
This article establishes minimal requirements for the transportation, identification, disposition, and use of funds derived from the disposition of avocados seized pursuant to this article. A county may, by ordinance, impose additional requirements regarding these requirements.
CHAPTER 10. Organic Foods [46000. - 46029.]
This chapter and Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code shall be known and may be cited as the California Organic Food and Farming Act.
The secretary and county agricultural commissioners under the supervision and direction of the secretary shall enforce regulations adopted by the National Organic Program (NOP) (Section 6517 of the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)), and Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code and this act applicable to any person selling products as organic.
This chapter shall be interpreted in conjunction with Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code and regulations adopted by the National Organic Program (Section 6517 of the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)).
All organic food or product regulations and any amendments to those regulations adopted pursuant to the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.), that are in effect on the date this bill is enacted or that are adopted after that date, shall be the organic food and product regulations of this state.
The secretary may, by regulation, prescribe conditions under which organic foods or other products not addressed by the National Organic Program may be sold in this state.
The purpose of the act shall be to do both of the following:
Promote coordination of federal, state, and local agencies in implementing the National Organic Program.
Support organic agriculture through education, outreach, and other programmatic activities.
The secretary may receive and expend state and federal funds for activities authorized under this act.
The secretary shall establish an advisory committee, which shall be known as the California Organic Products Advisory Committee, for the purpose of advising the secretary with respect to his or her responsibilities under this act.
The advisory committee shall advise the secretary on education, outreach, and technical assistance for producers.
The advisory committee shall be comprised of 15 members. Each member may have an alternate. Six members and their alternates shall be producers, at least one of whom shall be a producer of meat, fowl, fish, dairy products, or eggs. Two members and their alternates shall be processors, one member and his or her alternate shall be wholesale distributors, one member and his or her alternate shall be representatives of an accredited certifying agency operating in the state, one member and his or her alternate shall be consumer representatives, one member and his or her alternate shall be environmental representatives, two members and their alternates shall be technical representatives with scientific credentials related to agricultural chemicals, toxicology, or food science, and one member and his or her alternate shall be retail representatives. Except for the consumer, environmental, and technical representatives, the members of the advisory committee and their alternates shall have derived a substantial portion of their business income, wages, or salary as a result of services they provide that directly result in the production, handling, processing, or retailing of products sold as organic for at least three years preceding their appointment to the advisory committee. The consumer and environmental representatives and their alternates shall not have a financial interest in the direct sales or marketing of the organic product industry and shall be members or employees of representatives of recognized nonprofit organizations whose principal purpose is the protection of consumer health or protection of the environment. The technical representatives and their alternates shall not have a financial interest in the production, handling, processing, or marketing of the organic products industry. The technical representatives may be involved in organic research or technical review providing they have no financial benefit from results of the research project or technical review.
An alternate member shall serve at an advisory committee meeting only in the absence of, and shall have the same powers and duties as, the category that he or she is representing as alternate, except for duties and powers as an officer of the committee. The number of alternates present who are not serving in the capacity of a member shall not be considered in determining a quorum.
An alternate member may serve at an advisory committee subcommittee meeting only in the absence of, and shall have the same powers and duties as, the member whom he or she is designated as alternate, except for duties and powers as a subcommittee chairperson.
The members of the advisory committee and their alternates shall be reimbursed for the reasonable expenses actually incurred in the performance of their duties, as determined by the advisory committee and approved by the secretary.
The secretary or his or her representative, the State Public Health Officer or his or her representative, and a county agricultural commissioner may serve as ex officio members of the advisory committee.
To the extent that funds are available, the secretary, in consultation with the California Organic Products Advisory Committee, may establish procedures for and conduct all of the following activities:
Receive and investigate complaints filed by any person concerning suspected acts of noncompliance with this act or federal organic standards.
Conduct periodic announced and unannounced spot inspections.
Collect samples to conduct periodic substance testing on products labeled as organic. There shall be no charge to the inspector or investigator for the samples taken.
Conduct farmers’ market inspections.
Support organic agriculture through education, outreach, and other programmatic activities.
Reimburse investigation, enforcement, and market surveillance expenses, including expenses incurred by any county agricultural commissioner for actions conducted pursuant to this chapter.
Conduct hearings, appeals, mediation, or settlement conferences from actions taken to enforce this chapter.
Investigation, inspection, and prohibited material testing reports shall be forwarded to the secretary for any required enforcement action.
The secretary shall coordinate activities authorized under this section with other county and state licensing, registration, inspection, and fee collection procedures applicable to registrants.
Any person may file a complaint with the director concerning suspected noncompliance with this chapter or Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code by a person under the enforcement jurisdiction of the director, as provided in Section 46000.
The director shall, to the extent funds are available, establish procedures for handling complaints, including provision of a written complaint form, and procedures for commencing an investigation within three working days after receiving a complaint regarding fresh food, and within seven working days for other food, and completing an investigation and reporting findings and enforcement action taken, if any, to the complainant within 60 days thereafter.
The director may establish minimum information requirements to determine the verifiability of a complaint, and may provide for rejection of a complaint that does not meet the requirements. The director shall provide written notice of the reasons for rejection to the person filing the complaint.
The director shall carry out the functions and objectives of this chapter and Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code, to the extent funds are available for those purposes.
Unless defined pursuant to the National Organic Program (NOP), the following words and phrases, when used in this act, shall have the following meanings:
“Accredited certification agency” means an entity accredited by the United States Department of Agriculture to certify operations as compliant with the federal organic standards.
“Act” means the California Organic Food and Farming Act. It also means the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.) and the regulations adopted pursuant to the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.).
“Categorical products” means categories of products of like commodity, such as apples, salad products, etc., and does not require variety-specific information.
“Certified operation” means a crop or livestock production or a wild crop harvesting or handling operation, or a portion of that operation, that is certified organic by an accredited certification agency as using a system of organic production or handling, as described by the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.) and implemented pursuant to the National Organic Program.
“Data” means the information provided annually by persons registered under the act, including certified organic acreage and gross sales of certified organic products.
“Director” means the director and State Public Health Officer for the State Department of Public Health.
“Enforcement authority” means the governmental unit with primary enforcement jurisdiction, as provided in Section 46008.
“Exempt handler” means a handling operation exempt from certification under federal organic standards that sells agricultural products as “organic” but whose gross agricultural income from organic sales totals five thousand dollars ($5,000) or less annually, that only handles agricultural products that contain less than 70 percent organic ingredients, as described in Section 205.301(d) of Title 7 of the Code of Federal Regulations, or that only identifies organic ingredients on the information panel.
“Exempt operation” means a production or handling operation, retail establishment, or broker that sells agricultural products but is exempt from certification under federal organic standards.
“Exempt producer” means a production operation that sells agricultural products as “organic” but whose gross agricultural income from organic sales totals five thousand dollars ($5,000) or less annually. An “exempt producer” is exempt from certification under federal organic standards.
“Federal organic standards” means the federal regulations governing production, labeling, and marketing of organic products as authorized by the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.) and implemented pursuant to the National Organic Program (7 C.F.R. Sec. 205.1 et seq.), and any amendments to the federal act or regulations made subsequent to the enactment of this chapter.
“Handle” means to sell, process, or package agricultural products, and includes, but is not limited to, trading, facilitating a sale or trade on behalf of a seller or oneself, importing to the United States, exporting for sale in the United States, combining, aggregating, culling, conditioning, treating, packing, containerizing, repackaging, labeling, storing, receiving, and loading.
“Handler” means a person who handles agricultural products, except final retailers of agricultural products that do not process agricultural products.
“Handling operation” means an operation that handles agricultural products, except final retailers of agricultural products that do not process agricultural products.
“Inspection” means the act of examining and evaluating production or handling operation to determine compliance with state and federal law.
“National Organic Program” or “NOP” means the National Organic Program established pursuant to the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.) and the regulations adopted for implementation.
“Organic Integrity Database” means the National Organic Program’s electronic, web-based reporting tool for the submission of data, completion of certificates of organic operation, and other information, or the tool’s successors.
“Person” means an individual, firm, partnership, trust, corporation, limited liability company, company, estate, public or private institution, association, organization, group, city, county, city and county, political subdivision of this state, other governmental agency within the state, and any representative, agent, or agency of any of the foregoing.
“Processing” means cooking, baking, curing, heating, drying, mixing, grinding, churning, separating, extracting, slaughtering, cutting, distilling, fermenting, eviscerating, preserving, dehydrating, freezing, chilling, or otherwise manufacturing, and includes packaging, canning, jarring, or otherwise enclosing food in a container.
“Producer” means a person who engages in the business of growing or producing food, fiber, feed, and other agricultural-based consumer products.
“Prohibited substance” means a substance the use of which in any aspect of organic production or handling is prohibited or not provided for in state or federal laws, including statutes and regulations.
“Residue testing” means an official or validated analytical procedure that detects, identifies, and measures the presence of chemical substances, their metabolites, or degradation products in or on raw or processed agricultural products.
“Retail food establishment” means a restaurant, delicatessen, bakery, grocery store, or any retail business with a restaurant, delicatessen, bakery, bulk food self-service station, salad bar, or other eat-in, carry-out, mail order, or delivery service of raw or processed agricultural products.
“Secretary” means the Secretary of Food and Agriculture.
“State Organic Program” or “SOP” means a state program that meets the requirements of Section 6506 of the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.), is approved by the Secretary of the United States Department of Agriculture, and is designed to ensure that a product that is sold or labeled as organically produced under the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.) is produced and handled using organic methods.
“USDA” means the United States Department of Agriculture.
This act shall apply notwithstanding any other provision of law that is inconsistent with this act. Nothing in this act is intended to repeal any other provision of law not inconsistent with this act.
At the request of a county agricultural commissioner, the district attorney for that county may bring an action to enforce this chapter or Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code, within the enforcement jurisdiction of that commissioner.
Any penalties collected by the secretary and any fees collected by a county agricultural commissioner pursuant to this chapter shall be deposited in the Department of Food and Agriculture Fund and, upon appropriation by the Legislature, shall be expended solely to fulfill the responsibilities authorized under this chapter.
Any fees and penalties collected by a county agricultural commissioner pursuant to Section 46017 and any other penalties collected by a county agricultural commissioner pursuant to this chapter shall be paid directly to the county agricultural commissioner and expended to fulfill the responsibilities of the county agricultural commissioner, as specified in this chapter.
The secretary shall establish a specific minimum amount to be reimbursed to each county agricultural commissioner per registrant in that county. This reimbursement shall not limit the amount of the reimbursement otherwise made to county commissioners for their enforcement activities.
Article 14 (commencing with Section 43031) of Chapter 2 of the Food and Agricultural Code applies to any product that is represented as organically produced by any person who is not registered as required by this chapter or any product that is not in compliance with this chapter or the NOP.
The secretary, county agricultural commissioners, and the State Director of Health Services shall be considered enforcing officers for purposes of those provisions of law under their respective jurisdiction.
Any person subject to this act that does not pay the registration fee within 10 days of the date on which the fee is due and payable shall pay a penalty of 10 percent of the total amount determined to be due plus interest at the rate of 1.5 percent per month on the unpaid balance.
This chapter shall be interpreted in conjunction with Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code.
No fee established and collected pursuant to this chapter shall exceed the secretary’s costs or the county agricultural commissioner’s costs, as the case may be, of regulating and enforcing the provisions of this chapter related to the function for which the fee is established.
The fees established and collected pursuant to this chapter may be expended, under the advisement of the California Organic Products Advisory Committee, for activities authorized under this chapter, including assisting operations in achieving certification, conducting education and outreach, entering research and development partnerships, and addressing production or marketing obstacles to the growth of the organic sector.
This act shall not apply to the term “natural” when used in the labeling or advertising of a product.
Article 14 (commencing with Section 43031) of Chapter 2 applies to any food product that is represented as organically produced by any person who is not registered as required by this chapter or any product that is not in compliance with this chapter or Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code. The secretary, agricultural commissioners, and the director shall be considered enforcing officers for purposes of those provisions of law under their respective jurisdiction.
Any producer, handler, processor, or registered certification organization subject to this chapter that does not pay the fee within 10 days of the date on which the fee is due and payable shall pay a penalty of 10 percent of the total amount determined to be due plus interest at the rate of 1.5 percent per month on the unpaid balance.
Every person engaged in this state in the production or handling of raw agricultural products sold as organic shall register with the secretary before the first sale of the product. All processors of organic agriculturally derived products that are not required to be registered as outlined in subdivision (b) shall register with the secretary. Each registrant shall annually renew the registration with the secretary unless no longer engaged in the activities requiring the registration. An exempt handler, exempt operation, and exempt producer are only exempt from certification under federal organic standards and are still required to be registered with the State Organic Program.
Every person engaged in this state in the processing or handling of processed products pursuant to Section 110460 of the Health and Safety Code, and pet food pursuant to Section 18653, and cosmetics pursuant to Section 111795 of the Health and Safety Code, including processors of alcoholic beverages, fish, and seafood, shall register with the State Public Health Officer.
Registration pursuant to this section shall be on a form either provided by the secretary or approved by the secretary and shall be valid for a period of one calendar year from the date of validation by the secretary of the completed registration form or for a period determined by the secretary to promote coordination with organic certification applications and renewals, organic certification cost share programs, and other state program registration.
The information provided on the registration form shall include all of the following:
The nature of the registrant’s business, including the categorical products produced, handled, or processed that are sold as organic. For purposes of registration, organic products shall be reported in accordance with the following specified categories unless the secretary, in consultation with the California Organic Products Advisory Committee, establishes different categories:
Citrus.
Fruits, excluding citrus.
Livestock or dairy.
Nuts.
Vegetables.
Other, which includes, but is not limited to, apiculture, organic fallow ground, herbs, mushrooms, cut flowers, and nursery.
The address or assessor’s parcel number of the precise location or locations where the products are produced, processed, or handled.
Sufficient information, under penalty of perjury, to enable the secretary to verify the amount of the registration fee to be paid in accordance with this act.
The names of all certification organizations or governmental entities, if any, providing organic certification to them.
A registration form shall be accompanied by payment of a nonrefundable registration fee by producers, handlers, and processors, which shall be based on total gross sales by the registrant of product sold as organic in the calendar year that precedes the date of registration or, if no sales were made in the preceding year, then based on the expected sales during the 12 calendar months following the date of registration in accordance with the following fee schedule. The secretary, in consultation with the California Organic Products Advisory Committee, may lower the amounts specified in the following fee schedule by regulation.
Producers that sell processed product shall pay fees based on the value of raw product before being processed and the value of any product sold as unprocessed.
A person who (A) does not take title of an organic product that is outside the jurisdiction of the State Public Health Officer, (B) packs, repacks, labels, sorts, or otherwise handles the product, including, but not limited to, trading the product or facilitating the sale or trade of the product on behalf of a seller, and (C) provides only handling services for the product, shall register and pay one hundred dollars ($100) per year.
A person who (A) takes title of an organic product that is outside the jurisdiction of the State Public Health Officer, (B) packs, repacks, labels, sorts, or otherwise handles the product, including, but not limited to, trading the product or facilitating the sale or trade of the product on behalf of a seller or themselves, and (C) provides only handling services for the product, shall register and pay a fee based on total gross sales of product sold as organic in the calendar year that precedes the date of registration or, if no sales were made in the preceding year, based on the expected sales during the 12 calendar months following the date of registration, in accordance with the fee schedule in paragraph (1).
A person who provides temporary storage of 14 days or less or transportation for an organic product and does not handle the raw unpackaged product does not have to register.
A person required to register pursuant to this section who fits the description of more than one of the persons described above shall pay the greater of the multiple amounts.
The secretary may require any producer, handler, processor, or other organic registrant to provide the exact dollar amount of gross sales of twenty-five million one dollars ($25,000,001) or more in lieu of the range specified in paragraph (1).
The secretary may adopt regulations that supersede the terms of this section to the extent reasonably necessary to provide an online system of registration for those required to register pursuant to this section.
The adoption, amendment, or repeal of any fee pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. An order to adopt, amend, or repeal the regulations concerning assessment rates pursuant to this section shall be transmitted within 30 days by the secretary to the Office of Administrative Law. The Office of Administrative Law shall file the order promptly with the Secretary of State without further review pursuant to Article 6 (commencing with Section 11349) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government Code. The order shall do all of the following:
Indicate that the regulations are being adopted, amended, or repealed pursuant to this chapter.
State that the order is being transmitted for filing.
Request that the Office of Administrative Law publish a notice of the filing of the order and print an appropriate reference in Title 3 of the California Code of Regulations.
To the extent feasible, the secretary, in consultation with the director, shall coordinate the registration and annual fee collection procedures of this section with similar licensing or registration procedures applicable to registrants.
The secretary shall deny a registration submission that is incomplete or not in compliance with this act.
A registrant shall, within 30 days, notify the secretary of any change in the information reported on the registration form and shall pay any additional fee owed if that change results in a higher fee owed than that previously paid.
At the request of any person, the secretary or county agricultural commissioner shall provide the following:
The name and address of the registrant.
The nature of the registrant’s business.
The names of all certification organizations or governmental entities, if any, providing certification pursuant to this act.
The secretary or county agricultural commissioner may charge a reasonable fee for the cost of reproducing this information. Except as provided in this subdivision, a registration form is exempt from Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code.
The secretary, in consultation with the California Organic Products Advisory Committee, may suspend the registration program set forth in this section if the secretary determines that income derived from registration fees is insufficient to support a registration enforcement program.
A registration is considered legal and valid until revoked, suspended, or until the expiration of the registration.
The registration revocation process shall be in conjunction with other provisions of this act. The secretary or county agricultural commissioner’s office may initiate the revocation process for failure to comply with the NOP or this act. A person against whom the action is being taken shall have the opportunity to appeal the action and be afforded the opportunity to be heard in an administrative appeal. This appeal shall be administered by either the state or county agricultural commissioner’s office.
If the registration fee is not paid within 60 days from the expiration date, the account shall be considered closed and the registration voided. A notification shall be sent to the registrant and the certifier, if applicable, notifying them the registrant is no longer able to market products as organic until the account is paid in full.
A producer, handler, processor, or certification agency subject to this chapter that does not pay the fee within 10 days of the date on which the fee is due and payable shall pay a penalty of 10 percent of the total amount determined to be due plus interest at the rate of 1.5 percent per month on the unpaid balance.
This chapter also applies to seed, fiber, and horticultural products. The terms “foods” and “raw agricultural commodities” as used in this chapter, and in Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code, include seed, fiber, and horticultural products where the context requires to effectuate this section.
Any certification agency that certifies products in this state sold as organic shall register with the secretary and shall thereafter annually renew the registration, unless the organization is no longer engaged in the activities requiring the registration. Registration shall be on a form provided by the secretary and shall include a copy of accreditation by the USDA or proof of application, if applicable.
Each certification agency shall pay to the secretary an annual registration fee of twenty-five dollars ($25) for each client they have certified in this state up to a maximum of five hundred dollars ($500). Any registration submitted by a certification agency shall be made available to the public for inspection and copying. The secretary may audit the agency’s certification procedures and records at any time, but any records of the certification agency not otherwise required to be disclosed shall be kept confidential by the secretary.
An accredited certifying agency may submit an annual registration fee and application on behalf of their client provided that all of the information required under Section 46013.1 is included when remitting applicable fees to the secretary.
The secretary and the county agricultural commissioners under the supervision of the secretary shall, if requested by a sufficient number of persons to cover the costs of the program in a county as determined by the secretary, establish a certification program. This program shall meet all of the requirements of this act. In addition, this program shall meet all of the requirements of the federal certification program, including federal accreditation. The secretary shall establish a fee schedule for participants in this program that covers all of the secretary’s reasonable costs of the program. A county agricultural commissioner that conducts a voluntary certification program pursuant to this section shall establish a fee schedule for participants in this program that covers all of the county’s reasonable costs of the program. The secretary shall not expend funds obtained from registration fees collected under this chapter for the purposes of adopting or administering this program. The certification fee authorized by this subdivision is due and payable on January 1 or may be prorated before the 10th day of the month following the month in which the decision to grant the certification is issued. Any person who does not pay the amount that is due within the required period shall pay the enforcement authority providing the certificate a penalty of 10 percent of the total amount determined to be due, plus interest at the rate of 1.5 percent per month on the unpaid balance.
Notwithstanding any other law, any certification agency that certifies products in this state sold as organic shall immediately make the following records available for inspection by, and shall upon request within three business days of the request, or within a reasonable time exceeding three business days as determined by the secretary, provide a copy to, the secretary or county agricultural commissioner:
Records obtained from applicants for certification and certified operations.
Records created by the certifying agent regarding applicants for certification and certified operations.
Any record required to be kept under the National Organic Program (Section 6517 of the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.) and 7 C.F.R. 205 et seq.), Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code, and this act applicable to any person selling products as organic.
Records acquired pursuant to this section shall not be public records as that term is defined in Section 7920.530 of the Government Code and shall not be subject to Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code.
All products sold as organic in California shall be certified by an accredited certifying agent if they are required to be certified under the federal act.
Product shall be sold as organic only in accordance with this act.
A certification agency shall be accredited by the USDA as provided in the NOP.
A registered certification agency shall submit to the secretary every January and June a list of all persons whose production or processing of product in California is certified. The list shall be publicly available within 30 days after the end of each filing period. A certifier that keeps a current list on an Internet Web site available to the public may be deemed to meet this requirement.
Only products that have been produced and handled in accordance with this act may be certified by a registered certification agency.
Materials acceptable in this state are those outlined in Sections 205.600 to 205.607, inclusive, of Title 7 of the Code of Federal Regulations.
A person may file a complaint with the secretary concerning suspected noncompliance with this act, as provided in Section 46000 or regulations adopted by the NOP.
The secretary shall, to the extent funds are available, establish procedures for handling complaints, including provision of a written complaint form, and procedures for commencing an investigation within five working days after receiving a complaint regarding fresh food, and within seven working days for other products, and completing an investigation and reporting findings and enforcement action taken, if any, to the complainant within 120 days thereafter.
The secretary may establish minimum information requirements to determine the verifiability of a complaint, and may provide for rejection of a complaint that does not meet the requirements. The secretary shall provide written notice of the reasons for rejection to the person filing the complaint.
The secretary shall carry out the functions and objectives of this act to the extent funds are available for those purposes.
The complaint process in this state must also meet all the complaint process outlined in regulations adopted by the NOP.
Any county agricultural commissioner may, at any time, initiate a notice and hearing process to determine whether a violation of these provisions has occurred. The hearing process to determine if a violation has occurred may include a review of the actions or records of:
The organic registrant.
A family member, employee, or any other person authorized to act on behalf of the registrant.
Any other person whose actions may have resulted in the violation.
The notice of hearing shall be on a form approved by the secretary and may contain:
The reasons why the hearing is being held.
A warning that failure to participate may result in other adverse actions or may be considered to be admission to a possible violation.
A hearing date, time, and location of the hearing.
The secretary or county agricultural commissioner may, upon determination that a violation has been made in accordance with subdivision (a) above, take any corrective action as specified in this act.
A person may appeal to the secretary for a hearing under Section 205.668 of Title 7 of the Code of Federal Regulations or if aggrieved by any one of the following actions or decisions:
Denial of any registration.
Suspension of any registration.
Revocation of any registration.
The appeal shall be submitted to the secretary in writing within the time period provided in the letter of notification of the adverse action or within 30 days of receipt of the letter of notification of the adverse action, whichever is later. The appeal shall be considered filed on the date the appeal is received by the secretary. An adverse action shall become final and nonappealable unless an appeal is timely filed. The secretary’s proceeding shall, insofar as practicable, comply with the Administrative Procedure Act, Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, except that a Department of Food and Agriculture hearing officer may be used.
As provided for in regulations adopted by the NOP, the action proposed by an NOP accredited certification agency against a client may be appealed to the secretary for mediation.
In lieu of prosecution, the secretary or a county agricultural commissioner may levy a civil penalty against any person under the enforcement jurisdiction of the secretary as provided in Section 46000 who violates this act, or any regulation adopted pursuant to this act, or regulations adopted by the NOP, in an amount not more than five thousand dollars ($5,000) for each violation. The amount of the penalty assessed for each violation shall be based on the nature of the violation, the seriousness of the effect of the violation on the effectuation of the purposes and provisions of this chapter and the impact of the penalty on the violator, including the deterrent effect on future violations.
Notwithstanding the penalties prescribed in subdivision (a), if the secretary or county agricultural commissioner finds that a person or a responsibly connected person knowingly sells or labels a product as organic, in violation of this act, any regulation adopted pursuant to this act, or regulations adopted by the NOP, the secretary or county agricultural commissioner may levy a civil penalty against the person in an amount that is not more than the amount specified in Section 3.91(b)(1)(xxxvi) of Title 7 of the Code of Federal Regulations for each violation. For purposes of this section, “responsibly connected” has the same meaning as defined in Section 205.2 of Title 7 of the Code of Federal Regulations.
Notwithstanding the penalties prescribed in subdivision (a), if the secretary or county agricultural commissioner finds that a violation was not intentional, the secretary or county agricultural commissioner may levy a civil penalty of not more than two thousand five hundred dollars ($2,500) for each violation.
For a first offense, in lieu of a civil penalty as prescribed in subdivision (a) or (b), the secretary or county agricultural commissioner may issue a notice of violation if they find that the violation is minor.
A person against whom a civil penalty is proposed shall be afforded an opportunity for a hearing before the secretary or county agricultural commissioner, upon request made in writing within 30 days after the issuance of the notice of penalty. At the hearing, the person shall be given the right to review the secretary’s or commissioner’s evidence of the violation and the right to present evidence on their own behalf. If no hearing is requested, the civil penalty shall constitute a final and nonreviewable order.
If a hearing is held, review of the final decision of the secretary or county agricultural commissioner may be requested in writing by any person, pursuant to Section 1094.5 of the Code of Civil Procedure within 30 days of the date of the final order of the secretary or county agricultural commissioner.
The secretary shall be entitled to receive reimbursement from any organic operation or person that is found in violation of this chapter for any reasonable attorney’s fees and other related costs, including, but not limited to, investigative costs, involved in the enforcement of this chapter.
The secretary shall use all funds received pursuant to this section in accordance with Section 46007.
A civil penalty levied by the secretary pursuant to this section may be recovered in a civil action brought in the name of the state. A civil penalty levied by a county agricultural commissioner pursuant to this section may be recovered in a civil action brought in the name of the county. After the exhaustion of the review procedures provided in this section, a county agricultural commissioner, or their representative, may file a certified copy of a final decision of the commissioner that directs the payment of a civil penalty and, if applicable, a copy of any order that denies a petition for a writ of administrative mandamus with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. Pursuant to Section 6103 of the Government Code, no fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section.
The secretary shall maintain in a central location, and make publicly available for inspection and copying upon request, a list of all civil penalties levied by the secretary and by each county agricultural commissioner within the past five years, including the amount of each penalty, the person against whom the penalty was levied, and the nature of the violation. Copies of this list shall also be available by mail, upon written request and payment of a reasonable fee, as set by the secretary.
The secretary and the county agricultural commissioners may conduct a program of announced and unannounced spot inspections to determine compliance with this act.
At the request of a county agricultural commissioner, the district attorney for that county may bring an action to enforce this act and the NOP within the enforcement jurisdiction of that commissioner.
It is unlawful for a person to sell, offer for sale, advertise, or label any product in violation of this act.
Notwithstanding subdivision (a), a person engaged in business as a handler, distributor, or retailer of food who in good faith sells, offers for sale, labels, or advertises any product in reliance on the representations of a producer, processor, or other distributor that the product may be sold as organic, shall not be found to violate this act unless the handler, distributor, or retailer either:
Knew or should have known that the product could not be sold as organic.
Was engaged in producing or processing the product.
Prescribed or specified the manner in which the product was produced or processed.
It is unlawful for a person to certify a product in violation of this act.
It is unlawful for a person to certify a product or company as organic unless duly registered as a certification agency pursuant to this act.
It is unlawful for a person to willfully make a false statement or representation, or knowingly fail to disclose a fact required to be disclosed, in registration for a certification agency pursuant to this act.
In accordance with Section 205.100(c)(2) of Title 7 of the Code of Federal Regulations, a person who makes a false statement to the secretary, a governing state official, or an accredited certifying agent shall be subject to Section 1001 of Title 18 of the United States Code.
It is unlawful for a person to sell, advertise, label, or otherwise represent any product as organic unless duly registered pursuant to Section 46013.1.
It is unlawful for a person to willfully make a false statement or representation, or knowingly fail to disclose a fact required to be disclosed, in registration pursuant to Section 46013.1.
It is unlawful for any person to forge, falsify, fail to retain, fail to obtain, or fail to disclose records pursuant to Section 46028.
It is unlawful for any person to advertise, label, or otherwise represent that any fertilizer or pesticide chemical may be used in connection with the production, processing, or distribution of products sold as organic if that fertilizer or pesticide chemical contains a prohibited material.
It is unlawful for any person to refuse to submit for inspection.
It is unlawful for any person to mislabel any organic product.
It is unlawful for any person to alter any organic registration form.
It is unlawful for any person to alter any certification document.
It is unlawful for any person to falsify any document.
It is unlawful for any person to remove a hold off sale or disposal order from any lot of product.
It is unlawful to use the term “transitional organic” in this state.
No food or product shall be advertised or labeled as “organic when available,” or “better than organic,” or use terminology that leaves in doubt whether the food or product being sold is organic.
All persons who produce, handle, or retail products that are sold as organic shall keep accurate and specific records as required by the secretary in consultation with the California Organic Products Advisory Committee and as required by the National Organic Program.
Notwithstanding any other provision of law, any producer, handler, processor, or retailer of products sold as organic shall immediately make available for inspection by, and shall upon request, within 72 hours of the request, provide a copy to, the secretary, the Attorney General, any prosecuting attorney, any governmental agency responsible for enforcing laws related to the production or handling of products sold as organic, of any record required to be kept under this section for purposes of carrying out this act. Records acquired pursuant to this act shall not be public records as that term is defined in Section 7920.530 of the Government Code and shall not be subject to Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code.
Upon written request of any person that establishes cause for the request, the secretary shall obtain and provide to the requesting party within 10 working days of the request a copy of any of the following records required to be kept under this act that pertain to a specific product sold or offered for sale, and that identify substances applied, administered, or added to that product, except that financial information about an operation or transaction, information regarding the quantity of a substance administered or applied, the date of each administration or application, information regarding the identity of suppliers or customers, and the quantity or price of supplies purchased or products sold shall be removed before disclosure and shall not be released to any person other than persons and agencies authorized to acquire records under subdivision (a):
Records of a producer, as described in Section 46028.
Records of a handler, as described in Section 46028, records of previous handlers, if any, and producers as described in Section 46028 without identifying the previous handlers or producers, and, if applicable, records obtained as required in this act.
Records of a retailer, as described in Section 46028, records of previous handlers, if any, and producers as described in Section 46028 without identifying the previous processors, handlers, or producers, and, if applicable, records obtained as required in subdivision (d). This subdivision shall be the exclusive means of public access to records required to be kept by producers, processors, handlers, and retailers under this act.
A person required to provide records pursuant to a request under this subdivision, may petition the secretary to deny the request based on a finding that the request is of a frivolous or harassing nature. The secretary may, upon the issuance of this finding, waive the information production requirements of this subdivision for the specific request for information that was the subject of the petition.
Information specified in subdivision (b) that is required to be released upon request shall not be considered a “trade secret” under Section 110165, Section 1060 of the Evidence Code, or the Uniform Trade Secrets Act (Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code).
The secretary may charge the person requesting records a reasonable fee to reimburse the secretary or the source of the records for the cost of reproducing the records requested.
The secretary shall not be required to obtain records not in the secretary’s possession in response to a subpoena. Prior to releasing records required to be kept pursuant to this act in response to a subpoena, the secretary shall delete any information regarding the identity of suppliers or customers and the quantity or price of supplies purchased or products sold.
CHAPTER 10.5. Direct Marketing [47000. - 47062.]
ARTICLE 1. General Provisions [47000. - 47003.]
The Legislature finds and declares all of the following with regard to the direct marketing of agricultural products:
Direct marketing of agricultural products benefits the agricultural community and the consumer by, among other things, providing an alternative method for growers to sell their products while benefiting the consumer by supplying quality produce at reasonable prices.
Direct marketing is a good public relations tool for the agricultural industry that brings the farmer face-to-face with consumers and other end users.
The direct marketing potential of a wide variety of California-produced agricultural products should be maximized and encouraged.
Farm stands allow farmers to sell fresh produce and eggs grown on their farm as well as other food products made with ingredients produced on or near the farm, thus enhancing their income and the local economy.
The permitting, regulating, and operating of certified farmers’ markets provide the essential core and foundation for the creation and operation of additional nonagricultural vending activities that are ancillary but contiguous to the certified farmers’ market, thereby providing a larger community event amenity for business districts and additional revenue for the operators of certified farmers’ markets.
The department should maintain a direct marketing program and encourage the sale and purchase of California-grown fresh produce and other California-produced agricultural products.
It is the intent of the state to promote the purchase and consumption of California-grown produce and to promote access to California-produced agricultural products. Restaurants and nonprofit organizations can assist in bringing California-grown products to all Californians.
A regulatory scheme should be developed that provides the flexibility that will make direct marketing a viable marketing system.
The department should assist producers in organizing certified farmers’ markets, field retail stands, farm stands, community-supported agriculture, and other forms of direct marketing by providing technical advice on marketing methods and in complying with the regulations that affect direct marketing programs.
The department is encouraged to establish an ad hoc advisory committee to assist the department in establishing regulations affecting direct marketing of products and to advise the secretary in all matters pertaining to direct marketing.
The following definitions apply to this chapter, unless otherwise specified:
“Agricultural product” means a fresh or processed product produced in California, including fruits, nuts, vegetables, herbs, mushrooms, dairy, shell eggs, honey, pollen, unprocessed bees wax, propolis, royal jelly, flowers, grains, nursery stock, raw sheared wool, livestock meats, poultry meats, rabbit meats, and fish, including shellfish that is produced under controlled conditions in waters located in California.
Products that are characterized as services, arts, crafts, bakery, candies, soaps, balms, perfumes, cosmetics, pottery, clothing, fabrics, pastas, compost, fertilizers, candles, ceramics, foraged foods, and types of wares are not agricultural products for purposes of this chapter. A product that combines an agricultural product with a nonagricultural product or service in a manner that materially increases the purchase price of the product shall disqualify the product from being sold as an agricultural product for purposes of this chapter.
“Practice of the agricultural arts” means the undertaking of being predominantly responsible for the decisions and actions encompassing the various phases of producing an agricultural product. The practice of the agricultural arts for fruit, floral, nut, vegetable, and other plant products includes directive or actual responsibility for all the actions of planting, growing, fertilizing, irrigating, cultivating, pest control, and harvesting. The practice of the agricultural arts for agricultural animal products includes directive or actual responsibility for a substantial time of the raising, feeding, veterinary care, and product harvesting.
“Producer” means a person, partnership, corporation, or an otherwise legally formed farm or ranch that produces agricultural products by the practice of the agricultural arts upon land that the person or entity owns, rents, leases, sharecrops, or otherwise controls and has the documented legal right to possession. A person or entity that rents, leases, or otherwise acquires the right to possession of property essentially only for or limited to the period of the harvest season of the agricultural products produced on that property shall not be considered a producer under the provisions of this chapter.
The secretary may adopt regulations to encourage the direct sale by farmers to the public of all types of California agricultural products. It is the intent of the Legislature that, in adopting those regulations, the secretary shall endeavor to keep costs incurred by farmers and certified farmers’ market operators to a minimum, recognizing that any administrative costs imposed on farmers and certified farmers’ market operators are generally passed on in the form of increased prices to the public, thus economically benefiting neither the public nor the farmer.
In accordance with the intent expressed in subdivision (a), the secretary may adopt regulations clarifying the provisions of this chapter, including the adoption of regulations for maintaining the quality and wholesomeness of the products offered for sale and promoting and fostering honest selling activities for those products.
The secretary may enter into a cooperative agreement with a county agricultural commissioner to carry out the provisions of this chapter, including, but not limited to, administration, investigations, inspections, registrations, and assistance pertaining to direct marketing producers and outlets. Compensation under the cooperative agreement shall be paid from assessments and fees collected and deposited pursuant to this chapter and shall provide reimbursement to the county agricultural commissioner for associated costs exclusive of the costs of certification and minimum inspections required pursuant to Section 47020.
Upon reasonable suspicion of a violation of Section 890, a certified farmers’ market operator may contract with a county agricultural commissioner for a special onsite field or storage verification inspection of a direct marketing producer selling in a certified farmers’ market operated and controlled by the operator. All contracts and contract fees are subject to the discretion of the county agricultural commissioner in the county where the verification inspections are being requested.
California farmers registered or certified pursuant to this chapter as direct marketing producers may transport for sale and sell California-grown fresh fruits, nuts, and vegetables that they produce, directly to the public, and shall be exempt from size, standard pack, container, and labeling requirements at an outlet or location operated by an individual, organization, or entity that is regulated pursuant to this chapter or is recognized by a regulation adopted pursuant to Section 47001 and is otherwise authorized by local ordinances, subject to the following conditions:
All fresh fruits, nuts, and vegetables sold shall comply with the California Code of Regulations governing maturity and quality.
No exemption granted by this section supersedes the provisions of federal marketing orders, state marketing orders, or any health and safety laws, regulations, or ordinances.
All fresh fruits, nuts, and vegetables sold in closed consumer containers shall be labeled with the name, address, and ZIP Code of the producer, and a declaration of identity and net quantity of the commodity in the package.
If a farmer selling produce pursuant to this section implements any exemption to size, standard pack, container, or labeling requirements as provided by this section, those sales may only be conducted as direct sales to any of the following:
Consumers who are end users.
Individuals, organizations, or entities that subsequently sell the produce directly to end users.
Individuals, organizations, or entities that distribute the produce directly to end users at no cost to those end users.
A farmer selling produce under paragraph (2) or (3) of subdivision (d) shall provide the individual, organization, or entity a memorandum that lists the identity of the producer, the address of the producer, and the identity and quantity of the produce purchased. A bill of sale or a container label including this information shall meet the requirements of this subdivision.
The secretary may establish qualifications for persons selling products directly to the public whenever the sales involve the use of any exemption granted by this chapter. Certified farmers’ markets and other direct marketing outlets and distributors may likewise be subject to qualifications.
ARTICLE 1.5. Certified Farmers’ Markets [47004. - 47005.4.]
Certified farmers’ markets are California agricultural product point-of-sale locations that are registered under the provisions of Section 47020 and operated in accordance with this chapter and regulations adopted pursuant to this chapter.
The operator of a certified farmers’ market shall establish a clearly defined marketing area where only agricultural products may be sold. Only the producer or the lawful authorized representative of the producer may sell agricultural products within the area defined as a certified farmers’ market. Sales of agricultural products purchased from another individual or entity shall not occur within a certified farmers’ market, and an agricultural product producer or product dealer shall not sell his or her agricultural products to another individual or entity with the understanding or knowledge that the products are intended to be resold in a certified farmers’ market in violation of this chapter or the regulations adopted pursuant to this chapter. Every producer selling within a certified farmers’ market shall comply with Section 47020.
All vendors of agricultural products selling within a certified farmers’ market shall do all of the following:
Post a conspicuous sign or banner at the point of sale that states the name of the farm or ranch, the county where the farm or ranch maintains the production grounds that produced the products being offered for sale is located, and a statement that “We Grew What We Are Selling” or “We Raised What We Are Selling” or “We Grow What We Sell” or similar phrases that clearly represent that the farm or ranch is only selling agricultural products that they themselves have grown or raised on California land that they possess or control. Product sales by different farms at the same vendor stand shall separate the products from each farm or ranch and correspondingly post the required sign or banner in direct relationship with the sales display of the products produced by each farm.
Ensure that all processed agricultural products that they offer for sale state in a clear manner by package label, container label, or bulk sales signage that they consist only, with the exception of incidental flavorings and necessary preservatives, of agricultural products grown or raised by the farm or ranch selling them, the farm or ranch name, and the city where the farm or ranch is located. In addition, every processed product shall identify on a package label, container label, or on bulk sales signage the registration number or other identity reference of the facility where the food was processed, or another required labeling statement or information, in accordance with Sections 110460, 114365, and 114365.2 of the Health and Safety Code, or, in the case of meat or poultry products, the identity of the facility where the meat or poultry products were cut and wrapped, in accordance with the applicable United States Department of Agriculture or State of California inspection standards, or, in the case of dairy products, the identity of the facility where the dairy products were manufactured or processed.
Ensure all products being represented or offered for sale as organic are clearly labeled or have conspicuous and posted point-of-sale signage identifying the products as organic.
The representations required pursuant to subdivision (c) shall be subject to the provisions and penalties specified in Section 890.
An operator of a certified farmers’ market that also operates, manages, or otherwise controls a separate sales activity or vending event or marketing area in close proximity, adjacent, or contiguous to the operator’s certified farmers’ market shall not allow the sale or distribution of fresh whole fruits, nuts, vegetables, cultivated mushrooms, herbs, and flowers by vendors selling within those sales activity or vending event or marketing areas.
The operator of a certified farmers’ market shall keep an accurate participation record of the individual direct marketing producers whose agricultural products were presented for sale in their market each market day. The operators shall submit to the department a quarterly report of the registration numbers and participation frequency of the direct marketing producers whose agricultural products were presented for sale in the operator’s market during that past quarter. The department shall create and maintain online capability for reporting.
Operators of certified farmers’ markets may establish rules and procedures that are more restrictive and stringent than state laws or regulations governing or implementing this chapter, so long as the rules and procedures are not in conflict with state laws or regulations.
Except for certified farmers’ markets operated by government agencies, nonprofit entities and other qualified operators of certified farmers’ markets shall be considered private entities and may take actions, adopt rules, and impose requirements they deem necessary for the proper and honest operation of their market, subject to the application of any state or other laws. Government agency operators of certified farmers’ markets are subject to applicable state laws, the regulations and laws of the governing agency, and other laws governing the conduct and actions they may take as a governmental entity.
An enforcing officer may enter and inspect any place or conveyance where products are produced, stored, packed, delivered for shipment, loaded, shipped, transported, or sold pertaining to a certified producer’s certificate over which they have jurisdiction.
An enforcing officer may inspect all products, containers, and equipment found in any place or conveyance to determine compliance with this chapter or the regulations adopted thereunder. The enforcing officer may also take representatives samples of products and containers, which may be subject to any method of inspection or testing as deemed necessary.
An enforcing officer may seize and hold as evidence all or any part of any container, pack, load, bulk lot, consignment or shipment of products which is packed, delivered for shipment, loaded, shipped, transported, or sold to secure the conviction of the party the enforcing officer knows or believes has violated or is violating any provision of this chapter or the regulations adopted thereunder.
Any evidence that is seized under the authority of this chapter or the regulations adopted thereunder by an enforcing officer in any county may be admitted into evidence in any action taken by any other county.
Nothing in this chapter shall be interpreted to preclude the creation and keeping of additional information that a certified farmers’ market operator may endeavor itself to create and keep, or to contractually require a vendor to provide additional information as a condition to selling in the operator’s farmers’ market.
ARTICLE 1.6. Certified Mobile Farmers’ Markets [47007. - 47009.]
A “certified mobile farmers’ market” means a mobile food facility, as defined in Section 113831 of the Health and Safety Code, that moves to various California agricultural product point-of-sale locations at predetermined and regular intervals operated by a California producer, a local government agency, or a nonprofit organization that is incorporated in California, upon which agricultural products are sold or distributed at retail directly to communities, and is registered under the provisions of Section 47008 and operated in accordance with this chapter and regulations adopted pursuant to this chapter.
Certified mobile farmers’ market operators shall comply with all of the following:
Sell or distribute agricultural products, as defined in paragraph (1) of subdivision (a) of Section 47000.5, produced by a California producer with a valid certified producer’s certificate.
Obtain from each producer an itemized list of all products purchased in accordance with subdivision (e) of Section 47002.
Comply with all labeling and identification requirements for shell eggs and processed foods imposed pursuant to the provisions of the Health and Safety Code, including, but not limited to, the farm’s name, physical address, and telephone number.
Ensure all products being represented or offered for sale as organic are clearly labeled or have conspicuous and posted point-of-sale signage identifying the products as organic.
The representations required pursuant to subdivision (b) shall be subject to the provisions and penalties specified in Section 890.
This article shall not be construed to remove the responsibility of a certified mobile farmers’ market from obtaining all required permits, registrations, certificates, and licenses, including, but not limited to, a produce dealer license, a mobile food facility permit, a processed food permit, a cannery license, a shellfish handling and marketing certificate, an organic processed product registration, or any other requirement from the State Department of Public Health or local jurisdiction, or from complying with the requirements of the California Retail Food Code (Part 7 (commencing with Section 113700) of Division 104 of the Health and Safety Code) and local jurisdictions, including payment of all applicable fees.
An enforcing officer may enter and inspect any place or conveyance where products are produced, stored, packed, delivered for shipment, loaded, shipped, transported, or sold pertaining to a certified mobile farmers’ market over which they have jurisdiction.
An enforcing officer may inspect all documentation, products, containers, and equipment found in any place or conveyance to determine compliance with this chapter or the regulations adopted thereunder. The enforcing officer may also take representative samples of products and containers, which may be subject to any method of inspection or testing as deemed necessary.
An enforcing officer may seize and hold as evidence all or any part of any container, pack, load, bulk lot, consignment, or shipment of products that is packed, delivered for shipment, loaded, shipped, transported, or sold to secure the conviction of the party the enforcing officer knows, or believes, has violated, or is violating, this chapter or the regulations adopted thereunder.
Any evidence that is seized by an enforcing officer in any county under the authority of this chapter or the regulations adopted thereunder, may be admitted into evidence in any action taken by any other county.
This chapter does not preclude the creation and keeping of additional information that a certified mobile farmers’ market operator may endeavor itself to create and keep, or contractually require a vendor to provide additional information as a condition to selling in an operator’s certified mobile farmers’ market.
An operator of a certified mobile farmers’ market shall register annually with the department as a certified mobile farmers’ market, which shall include all of the following:
A statement specifying the location from where the agricultural products are sourced, including a certified farmers’ market or a certified producer with a valid certified producers’ certificate.
A schedule of point-of-sale locations and expected sales intervals.
All other required permitting related to the mobile food facility.
The fee for, or the fee for amendment to, the annual registration of a certified mobile farmers’ market shall be set by regulation enacted by the secretary that is reflective of the actual cost of the processing of registration or amendment to the registration, but in no event shall either fee exceed two hundred dollars ($200) annually.
Fees collected pursuant to this article shall be deposited in the Department of Food and Agriculture Fund and shall be used by the department for the administration of this article.
The adoption, amendment, or repeal of any fee pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. An order to adopt, amend, or repeal regulations concerning the fee pursuant to this section shall be transmitted within 30 days by the secretary to the Office of Administrative Law. The Office of Administrative Law shall file the order promptly with the Secretary of State without further review pursuant to Article 6 (commencing with Section 11349) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government Code. The order shall do all of the following:
Indicate that the regulations are adopted, amended, or repealed pursuant to this chapter.
State that the order is being transmitted for filing.
Request that the Office of Administrative Law publish a notice of the filing of the order and print an appropriate reference in Title 3 of the California Code of Regulations.
ARTICLE 2. Certified Farmers’ Market Advisory Committee [47010. - 47013.]
The secretary shall establish a committee that shall be known as the Certified Farmers’ Market Advisory Committee. The primary goals of the committee shall be all of the following:
Promote the demand and consumption of agricultural products purchased directly from producers at certified farmers’ markets.
Ensure that existing and future certified farmers’ markets are primarily maintained for the benefit of the producers selling their products within those markets.
Ensure that honest and fair marketing of products occurs within certified farmers’ markets and within an ancillary vending activity under the operation and control of a certified farmers’ market operator.
The committee shall be composed of 14 members and their alternates. The secretary shall endeavor to appoint six members and their alternates who shall be producers or representatives of agricultural organizations that represent producers, six members and their alternates who shall be certified farmers’ market operators or representatives of the operator, one public member, and one member and his or her alternate who shall be a county agricultural commissioner. An alternate member shall serve at a committee meeting only in the absence of, and shall have the same powers and duties as, the member for whom he or she is designated as alternate. All appointees shall serve two-year terms or at the pleasure of the secretary. Members appointed to fill vacancies shall serve the remainder of the term.
The secretary shall make an effort to include members who represent geographical diversity and diverse agricultural products.
The committee shall meet at the request of the secretary. It shall meet at least once each year.
The committee may appoint its own officers, including a chairperson, a vice chairperson, a secretary, and any other officers it deems necessary. The committee may adopt rules that it deems are necessary for the conduct of its meetings and functions to carry out the objectives of this chapter.
The Certified Farmers’ Market Advisory Committee shall be advisory to the secretary on matters pertaining to direct marketing of agricultural products at certified farmers’ markets and may make recommendations, including, but not limited to, the following:
The amendment, repeal, or adoption of legislation and regulations that relate to the primary goals stated in subdivision (a) of Section 47010.
Administrative policies and procedures that relate to the primary goals stated in subdivision (a) of Section 47010, including the inspection of producers and certified farmers’ markets.
Administrative civil penalties for violations of certified farmers’ market laws and regulations.
Program and enforcement fees collected pursuant to Section 47021.
Statewide review of certified farmers’ market promotion and enforcement actions.
The annual budget of the department’s certified farmers’ market program to carry out the goals and purposes of this chapter.
Alternative strategies for certification and investigation methodology, and methods for industry self-regulation and commission formation.
The members of the committee and any alternate shall serve without compensation, but may be reimbursed by the department for travel expenses incurred in the performance of their duties.
ARTICLE 3. Certificates [47020. - 47021.]
An operator of a certified farmers’ market shall register with the department by applying for and obtaining a certificate from the county agricultural commissioner’s office in the county in which the certified farmers’ market is located. The application shall include the times and location of the farmers’ market, the name and contact information for the operator of the farmers’ market, and the agent for service of process for the operator. Upon approval of an application, the county agricultural commissioner shall issue to the operator a certified farmers’ market certificate.
A certified farmers’ market certificate issued by a county agricultural commissioner shall be valid for up to 12 months from the date of issue, and may be renewed annually thereafter. The county agricultural commissioner shall inspect every certified farmers’ market within the commissioner’s jurisdiction at least once for every six months of operation. At the time of application or renewal, the county agricultural commissioner shall provide a schedule of fees that reflects an estimate of expenses for inspections and may charge a certification and inspection fee equal to the actual expenses incurred.
Before selling at a certified farmers’ market, a producer shall register with the department by applying for and obtaining a certificate from the county agricultural commissioner’s office in the county in which the producer’s land or facility is located. The application shall include a declaration by the producer that the producer is knowledgeable of and intends to produce in accordance with good agricultural practices, as outlined in the Small Farm Food Safety Guidelines published by the department. Upon approval of an application, the county agricultural commissioner shall issue to the producer a certified producer’s certificate.
A declaration made pursuant to subparagraph (A) shall not be used to infer that the producer is not required to comply with other state or federal laws relative to food safety and good agricultural practices.
As part of obtaining or renewing a certified producer’s certificate, a producer farming fruit, vegetables, nuts, herbs, and similar crops shall annually submit to the county agricultural commissioner’s office in the county in which the producer’s land or facility is located information requested by the department about the specific crops that the producer will harvest or intends to harvest for sale directly to the public. The secretary may promulgate regulations specifying the information a producer is required to submit.
A certified producer’s certificate issued by a county agricultural commissioner shall be valid for up to 12 months from the date of issue and may be renewed annually thereafter. The county agricultural commissioner in each county shall perform at least one onsite inspection for all new certified producer’s certificate applicants, and may perform additional inspections as needed of the property or properties listed on the certified producer’s certificate issued in the agricultural commissioner’s county as deemed appropriate by the county agricultural commissioner to verify production of the commodities being sold at a certified farmers’ market or the existence in storage of the producer’s actual harvested production, or both, of any product being sold at a certified farmers’ market. Where practical or purposeful, verification inspections shall be made when the actual harvest or sale of the commodity in question is occurring. The county agricultural commissioner shall provide to the producer a schedule of fees that reflects an estimate of expenses for certification or inspection at the time of application or renewal or before any needed additional verification inspection, and may charge a certification and inspection fee equal to the actual expenses incurred.
Renewal of a certified farmers’ market certificate or certified producer’s certificate may be denied by either the department or a county agricultural commissioner if a certified farmers’ market or a producer is delinquent in the payment of the required state fee or a county certification and inspection fee or administrative civil penalty authorized pursuant to this chapter. The certificate may be eligible for renewal when all outstanding balances and associated penalties or administrative fines have been paid to the department or the respective county or counties.
Every operator of a certified farmers’ market shall remit to the department, within 30 days after the end of each quarter, a fee equal to the number of vendors participating and selling goods under the authority and management of the certified farmers’ market operator participating on each market day for the entire previous quarter. The fee shall be two dollars ($2) for each vendor whose products were presented for sale on each market day. A certified farmers’ market operator may directly recover all or part of the fee from the participating vendors. An operator of a certified farmers’ market located in a county with a population of less than 400,000 that allows only vendors of agricultural products produced by producers on land located in the same county as the certified farmers’ market may petition the secretary for a vendor fee of one dollar ($1). The petition shall include a statement of verification of the information upon which the petition is based by the county agricultural commissioner in the county where the certified farmers’ market is located.
An operator of a certified farmers’ market who fails to pay the required fee within 30 days after the end of the quarter in which it is due shall pay to the department a monthly interest charge on the unpaid balance and a late penalty charge, to be determined by the department and not to exceed the maximum amount permitted by law.
All fees collected pursuant to this section shall be deposited in the Department of Food and Agriculture Fund. The money generated by the imposition of the fees shall be used, upon appropriation by the Legislature, by the department to cover the reasonable costs to carry out this chapter, including all of the following actions undertaken by the department:
The coordination of the Certified Farmers’ Market Advisory Committee or any ad hoc direct marketing advisory committee.
The evaluation of county enforcement actions and assistance with regard to multiple county enforcement problems.
The adoption of regulations to carry out the provisions of this chapter pertaining to certified farmers’ markets.
Hearings from actions taken to enforce this chapter.
The maintenance of a current statewide listing of certified farmers’ markets locations.
The maintenance of a current statewide listing of producers who have been certified.
The dissemination to all certified farmers’ markets information regarding the suspension or revocation of any producer’s certificate and the imposition of administrative penalties.
Other actions, including the maintenance of special fund reserves, that are recommended by the Certified Farmers’ Market Advisory Committee or any ad hoc direct marketing advisory committee and approved by the department for purposes of carrying out this chapter pertaining to certified farmers’ markets.
Investigation and enforcement expenses, including expenses incurred by any county agricultural commissioner for actions conducted pursuant to this chapter.
ARTICLE 3.5. Violations [47022. - 47022.7.]
It is unlawful for any person when operating under the provisions of this chapter or the regulations adopted thereunder to prepare, pack, place, deliver for shipment, deliver for sale, load, ship, transport, cause to be transported, or sell any products in bulk, or in any container or subcontainer, unless such products conform to the provisions of this chapter or the regulations adopted thereunder.
It is unlawful for any person when operating under the provisions of this chapter or the regulations adopted thereunder to deceptively prepare, pack, place, deliver for shipment, load, ship, transport, or sell any products.
It is unlawful for any person when operating under the provisions of this chapter or the regulations adopted thereunder to mislabel any products, or place or have any false or misleading statement or designation of quality, grade, trademark, or trade name, on any wrapper or container, or on the label or lining of any container of any product, or on any placard that is used in connection with, or which has reference to, any products, bulk lot, bulk load, load, arrangement, or display of products.
It is unlawful for any person when operating under the provisions of this chapter or the regulations adopted thereunder to falsify any documents or to make any statement, representation, or assertion orally, by public outcry, proclamation, or in writing, or by any other manner or means whatever, that concerns the quality, size, maturity, condition, or any other matter that relates to products which is false, deceptive, or misleading in any particular.
It is unlawful for any person when operating under the provisions of this chapter or the regulations adopted thereunder to remove or dispose any products, or their containers to which any warning tag or notice has been affixed by an enforcing officer, or to remove the warning tag or notice from the place where it is affixed, except under a written permit to do so from an enforcing officer or under his or her specific direction.
It is unlawful for any person when operating under the provisions of this chapter or the regulations adopted thereunder to refuse to submit any container, subcontainer, load, or display of products to the inspection of an enforcing officer, or to refuse to stop any vehicle which contains products for the purpose of inspection by an enforcing officer.
It is unlawful for any person when operating under the provisions of this chapter or the regulations adopted thereunder to refuse to submit to inspection by an enforcing officer of any property used in the sales, storage, or production of agricultural products.
It is unlawful for any person when operating under the provisions of this chapter or the regulations adopted thereunder to alter in any respect any certified producer’s certificate, any certified farmers’ market certificate, any notice of violation, report, statement, or other document that is referred to in this chapter, which is issued by an enforcing officer.
ARTICLE 4. Enforcement [47025. - 47025.]
In lieu of prosecution, but not precluding suspension or revocation of certified producer’s certificates or certified farmers’ market certificates pursuant to any other authority, the secretary or the county agricultural commissioner may impose an administrative civil penalty, suspension of certification, or both, on a person who violates this chapter or any regulation implemented pursuant to this chapter.
A civil penalty pursuant to this section shall be levied in proportion to the violation, measured as either “serious,” “moderate,” or “minor.”
“Serious” violations are repeat or intentional violations, punishable by a civil penalty of not less than four hundred one dollars ($401) and up to a maximum of one thousand dollars ($1,000) per violation.
“Moderate” violations are repeat violations or violations that are not intentional, punishable by a civil penalty of not less than one hundred fifty-one dollars ($151), but not more than four hundred dollars ($400) per violation.
“Minor” violations are violations that are procedural in nature, punishable by a civil penalty of not less than fifty dollars ($50), but not more than one hundred fifty dollars ($150) per violation.
Before a civil penalty or suspension is imposed pursuant to this section, the person charged with the violation shall receive written notice of the proposed action including the nature of the violation and, if applicable, the amount of the proposed civil penalty. The person shall have the right to request a hearing within 20 days after receiving notice of the proposed action. A notice that is sent by certified mail to the last known address of the person charged shall be considered received even if delivery is refused or if the notice is not accepted at that address. If a hearing is requested, notice of the time and place of the hearing shall be given at least 10 days before the date set for the hearing. At the hearing, the person shall be given an opportunity to review the commissioner’s evidence and to present evidence on his or her own behalf. If a hearing is not timely requested, the commissioner may take the action proposed without a hearing.
If the person, upon whom the commissioner imposed a civil penalty or suspension, requested and appeared at a hearing, the person may appeal the commissioner’s decision to the secretary within 30 days of the date of receiving a copy of the commissioner’s decision. The following procedures apply to the appeal:
If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days before the date set therefor. The times may be altered by mutual agreement of the appellant, the commissioner, and the secretary.
The secretary shall decide the appeal on the record of the hearing, including the written evidence and the written argument described in paragraph (2), that he or she has received. If the secretary finds substantial evidence in the record to support the commissioner’s decision, the secretary shall affirm the decision.
The secretary shall render a written decision within 45 days of the date of appeal or within 15 days of the date of oral arguments or as soon thereafter as practical.
On an appeal pursuant to this section, the secretary may affirm the commissioner’s decision, modify the commissioner’s decision by reducing or increasing the amount of the civil penalty levied, if applicable, so that it is within the secretary’s guidelines for imposing civil penalties, or reverse the commissioner’s decision. Any civil penalty increased by the secretary shall not be higher than that proposed in the commissioner’s notice of proposed action given pursuant to subdivision (c). A copy of the secretary’s decision shall be delivered or mailed to the appellant and the commissioner.
Any person who does not request a hearing with the commissioner pursuant to a civil penalty or suspension imposed under subdivision (c) may not file an appeal to the secretary pursuant to this subdivision.
Review of a decision of the secretary may be sought by the appellant within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
After the exhaustion of the appeal and review of procedures provided in this section, the commissioner, or his or her representative, may file a certified copy of a final decision of the commissioner that directs the payment of a civil penalty or provides for the imposition of a suspension, and, if applicable, a copy of any decision of the secretary, or his or her authorized representative, rendered on an appeal from the commissioner’s decision and a copy of any order that denies a petition for a writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. No fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section.
In addition to the civil penalties prescribed in subdivision (b), or a suspension imposed pursuant to this section, the appellant may be required to cover the cost of the administrative hearing unless the decision of the secretary or county agricultural commissioner is overturned.
“Person,” as used in this section, means any applicant for a certified producers’ certificate or certified farmers’ market certificate, producer of agricultural products, certified producer, family member or employees of a certified producer, certified farmers’ market manager, or certified farmers’ market operator engaged or involved in the direct marketing of agricultural products at a certified farmers’ market pursuant to this chapter.
ARTICLE 5. Other Direct Marketing Outlets and Distributions [47030. - 47050.]
Field retail stands are producer-owned and operated premises located at or near the point of production established in accordance with local ordinances and land use codes.
Farm stands arefield retail stands, as defined in Section 47030, that sell or offer for sale California agricultural products grown or produced by the producer, and also sell or offer for sale nonpotentially hazardous prepackaged food products from an approved source or bottled water or soft drinks. All agricultural products, processed or otherwise, sold at a farm stand shall be consistent in manner and character with the intent of this chapter.
ARTICLE 6. Community-Supported Agriculture [47060. - 47062.]
For purposes of this article, the following definitions apply:
“Community-supported agriculture program” or “CSA program” means a program under which a registered California direct marketing producer, or a group of registered California direct marketing producers, grow food for a group of California consumer shareholders or subscribers who pledge or contract to buy a portion of the future crop, animal production, or both, of a registered California direct marketing producer or a group of registered California direct marketing producers.
“Single-farm community-supported agriculture program” means a program in which all delivered farm products originate from and are produced at the farm of one registered California direct marketing producer, and no more than a de minimis amount of delivered farm products originate at the farms of other registered California direct marketing producers.
“Multi-farm community-supported agriculture program” means a program in which all delivered farm products originate from and are produced at one or more farms of a group of registered California direct marketing producers who declare their association as a group at the time of their annual certification or by amending the annual certification during the year.
“Farm” means a farm operated by a registered California direct marketing producer or a group of registered California direct marketing producers.
A producer that markets whole produce, shell eggs, or processed foods through a single-farm community-supported agriculture program or multi-farm community-supported agriculture program shall comply with all of the following:
Register annually with the department as a California direct marketing producer, which shall include both of the following:
A statement specifying whether the producer is part of a single-farm community-supported agriculture program or multi-farm community-supported agriculture program.
A declaration by the producer that he or she is knowledgeable and intends to produce in accordance with good agricultural practices, as outlined in the small farm food safety guidelines published by the department.
A declaration made pursuant to this subparagraph shall not be used to infer that the producer is not required to comply with any other state or federal laws relative to food safety and good agricultural practices.
Label the consumer box or container used to deliver farm products to the consumer with the name and address of the farm delivering the box or container.
Maintain the consumer boxes or containers in a condition that prevents contamination.
Inform consumers, either by including a printed list in the consumer box or container or by delivering a list electronically to the consumer, of the farm of origin of each item in the consumer box or container.
Maintain records that document the contents and origin of all of the items included in each consumer box or container, in accordance with department regulations.
Comply with all labeling and identification requirements for shell eggs and processed foods imposed pursuant to the provisions of the Health and Safety Code, including, but not limited to, the farm’s name, physical address, and telephone number.
A registered California direct marketing producer that is in compliance with this section and in good standing shall be deemed an approved source, as defined in Section 113735 of the Health and Safety Code.
A potentially hazardous food, as defined in Section 113871 of the Health and Safety Code, shall not be included in a consumer box distributed pursuant to this article unless that food has been produced, processed, and handled pursuant to all applicable federal, state, and local food safety requirements.
Poultry and rabbit meat produced pursuant to Part 2 (commencing with Section 25401) of Division 12, and other meats produced pursuant to Chapter 4.1 (commencing with Section 18940) of Part 3 of Division 9, that are marketed under this chapter shall comply with handling requirements established in the small farm food safety guidelines published by the department, as described in paragraph (2) of subdivision (b) of Section 47062.
An enforcement officer, as defined in Section 113774 of the California Retail Food Code (Part 7 (commencing with Section 113700) of Division 104 of the Health and Safety Code) may enter into and inspect a community-supported agriculture program in response to a public food safety complaint. The enforcement officer may recover reasonable costs associated with that inspection from the registered California direct marketing producer operating the community-supported agriculture program.
Nothing in this section shall be construed to remove the responsibility of a community-supported agriculture program from obtaining all required permits and licenses, including, but not limited to, a produce handler license or a cottage food permit.
The fee for, or the fee for amendment to, the annual registration of a registered California direct marketing producer shall be set by regulation enacted by the secretary that is reflective of the actual cost of the processing of registration or amendment to the registration, but in no event shall either fee exceed one hundred dollars ($100) annually.
Fees collected pursuant to this article shall be deposited in the Department of Food and Agriculture Fund and shall be used by the department for the administration of this article. Administration of this article shall include all of the following:
Create and maintain a registration system for California direct marketing producers.
In consultation with the State Department of Public Health and local health officers or designees, publish, periodically update, and post on the Department of Food and Agriculture’s Internet Web site small farm food safety guidelines on, but not limited to, safe production, processing, and handling of both nonpotentially hazardous and potentially hazardous foods.
Coordination expenses incurred relative to meetings of any ad hoc direct marketing advisory committee established by the secretary.
All or part of the annual registration fee shall be waived if fees are paid by a California direct marketing producer to the department for registration or certification under any other program under the purview of this chapter.
The provisions of this article shall be complied with regardless of any waiver of fees granted.
The adoption, amendment, or repeal of any fee pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. An order to adopt, amend, or repeal regulations concerning the fee pursuant to this section shall be transmitted within 30 days by the secretary to the Office of Administrative Law. The Office of Administrative Law shall file the order promptly with the Secretary of State without further review pursuant to Article 6 (commencing with Section 11349) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government Code. The order shall contain all of the following:
Indicate that the regulations are adopted, amended, or repealed pursuant to this chapter.
State that the order is being transmitted for filing.
Request that the Office of Administrative Law publish a notice of the filing of the order and print an appropriate reference in Title 3 of the California Code of Regulations.
CHAPTER 11. Navel and Valencia Oranges [48000. - 48003.]
The handling and marketing of California citrus is affected with the public interest. The provisions of this chapter are enacted for the protection of the industry and for the purposes of protecting the health and general welfare of the people of this state.
There is in the department the California Citrus Advisory Committee.
The committee shall be comprised as follows:
Eight producers.
Five producer members shall be engaged in the production of navel or Valencia oranges; four of which shall be engaged in the production of navel or Valencia oranges in the San Joaquin Valley, and two of the four members shall be engaged in the production of navel or Valencia oranges in Tulare County.
Two producer members shall be engaged in the production of lemons, one of which is engaged in the production of lemons in Ventura County.
One of the members shall be engaged in the production of mandarin citrus.
Four handlers, which have their principal place of business located in one of the following counties: Fresno, Kern, Madera, Orange, Riverside, San Bernardino, Santa Clara, Tulare, and Ventura.
Two handler members shall be located in the San Joaquin Valley.
One handler member shall be engaged in the handling of lemons in Ventura County.
The committee shall be appointed by the secretary from nominations submitted to the secretary by members of the navel orange, Valencia orange, lemon, and mandarin citrus industries group.
Committee members may be compensated for reasonable expenses actually incurred in the performance of their duties, as determined by the committee and concurred in by the secretary.
The committee shall meet at the request of the secretary, the committee chairperson, or upon the request of three committee members.
The committee shall appoint a chairperson, one or more vice chairpersons, and any other officers it deems necessary.
The committee shall develop and make recommendations to the secretary on all matters regarding the implementation of this chapter including:
The assessment rate as specified in Section 48002.
Procedures for implementing an inspection program that shall include, but not be limited to, the following:
Mandatory hold for inspection prior to shipping, following a citrus freeze.
The minimum number of inspections to be conducted, and the duration of each inspection period.
The minimum number of samples to be taken.
Statistical analysis of compliance levels and determination of an acceptable level of compliance.
Documentation of inspection data including the number of inspectors, number of inspections performed, and budget information relating to expenses of personnel, mileage, and overhead costs.
Monitoring and postevaluation of program effectiveness by the secretary.
Development of a single memorandum of understanding between the department and all county agricultural commissioners for the counties specified in subdivision (b).
Determinations as to which counties have met the inspection requirements.
Procedures for implementing a state crop estimating and acreage survey.
The secretary shall accept the recommendations of the committee if he or she determines that the recommendations are practicable and in the interest of the industry and the public. The secretary shall provide the committee within 30 days of receipt of the recommendations with a written statement of reasons if he or she does not accept any of the recommendations.
In addition to any other assessment, fees, or charges that may be required pursuant to this code, producers of navel oranges, Valencia oranges, lemons, or mandarin citrus varieties grown in this state and prepared for fresh market in the Counties of Fresno, Kern, Madera, Orange, Riverside, San Bernardino, Santa Clara, Tulare, and Ventura shall pay an assessment that shall not exceed 11 mills ($0.011) per carton for navel oranges, 5 mills ($0.005) per carton for lemons, and 6 mills ($0.006) per carton for Valencia oranges and mandarin citrus. The assessment shall be:
Commencing April 1, 2011, recommended annually by the committee and submitted to the secretary for approval in amounts not to exceed those specified above.
Based on the number of 40-pound carton equivalents produced.
Used to reimburse agricultural commissioners, pursuant to a contract between the department and the commissioners, in the counties specified in this section, who meet the requirements of the inspection program as determined by the committee and concurred in by the secretary.
Used to establish a reserve to fund the frost inspection program. The reserve amount shall be determined by the committee.
Used to fund a program within the department to provide the industry with a state crop estimating service and an acreage survey.
Collected from the producer by the first handler. For the purposes of this chapter, “producer” means a grower of navel oranges, Valencia oranges, lemons, or mandarin citrus and “handler” means a person or entity who receives navel oranges, Valencia oranges, lemons, or mandarin citrus from a producer and who prepares the oranges, lemons, or mandarin citrus for fresh market. If a producer prepares the oranges, lemons, or mandarin citrus for market, the producer shall be deemed the handler.
Remitted to the department by the first handler, along with an assessment form, at the end of each month during the marketing season.
In no case shall:
The total amount reimbursed to all counties exceed the total amount collected from the producers in all counties, unless reserve moneys are required for the frost inspection program. However, the authorized expenditures shall not exceed the combined total of reserve moneys and revenue received in that fiscal year.
The reimbursement to any county exceed the amount approved by the committee and concurred in by the secretary.
If the inspection program is terminated and there are insufficient funds to cover the cost of terminating the inspection program, the assessment shall continue until all those costs are recovered.
The committee may recommend to the secretary an assessment less than the amount specified in subdivision (a) or that no assessment be collected from growers of navel oranges, Valencia oranges, lemons, or mandarin citrus varieties if no inspection program or crop survey exists for that particular orange or citrus variety. If no assessment is collected from an orange or citrus variety that has a representative on the committee, the secretary may designate a representative to the committee from an orange or citrus variety that is assessed.
The adoption, amendment, or repeal of assessment rates pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. An order to adopt, amend, or repeal the regulations concerning assessment rates pursuant to this section shall be transmitted within 30 days by the secretary to the Office of Administrative Law. The Office of Administrative Law shall file the order promptly with the Secretary of State without further review pursuant to Article 6 (commencing with Section 11349) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government Code. The order shall do all of the following:
Indicate that the regulations are being adopted, amended, or repealed pursuant to this chapter.
State that the order is being transmitted for filing.
Request that the Office of Administrative Law publish a notice of the filing of the order and print an appropriate reference in Title 3 of the California Code of Regulations.
For purposes of this chapter, the following definitions apply:
“Carton” means a unit equivalent to 40 pounds of citrus fruit.
“Mandarin citrus” means mandarins, including tangerines and mandarin hybrids.
Every person acting as a handler of commodities subject to this chapter shall be personally liable for the payment of assessments and inspection fees. Any handler who fails to file the required assessment form or pay an assessment or inspection fee by the last day of the month immediately following the month in which the commodities were received shall pay to the secretary a penalty of 10 percent of the assessment, inspection fee, or the sum of both the assessment fee and the inspection fee, owed and, in addition, 1.5 percent interest per month on the unpaid balance.
It shall be unlawful for a handler to refuse to collect the assessments or remit the assessments and the proper forms required by this chapter.
A handler shall not charge a producer an administrative fee for collecting or remitting an assessment.
A producer who disputes the amount of the assessment may file a claim with the secretary. The producer shall prove his or her claim by a preponderance of the evidence.
A producer may not bring a claim against a handler for damages, or otherwise, in connection with the assessment or the required deduction by the handler of the moneys owed to the producer.
CHAPTER 12. Office of Farm to Fork [49000. - 49002.]
The Legislature finds and declares all of the following:
There are many Californians who lack adequate access to healthy food.
The lack of access to healthy food falls disproportionately on disadvantaged urban and rural communities.
These same communities also suffer from an increased rate of obesity, diabetes, and other chronic health conditions related to poor diet.
Facilitating access to healthy food in these communities is needed to address the gaps in the food distribution system and help mitigate the health consequences of this inadequacy.
There are many county, state, federal, and private organizations attempting to address this issue, but there is no state-level body charged with coordinating these activities.
A state-level office, charged with coordinating and facilitating food access, can increase the effectiveness of ongoing programs and ensure that efforts and funding are not duplicated.
The Department of Food and Agriculture is uniquely situated to administer this office because of the department’s knowledge of the agricultural industry, and its ability to bring farmers together with hunger relief organizations, partner agencies, schools, colleges, community organizations, and others to increase the availability of healthy food.
There is hereby created in the department the Office of Farm to Fork. To the extent that resources are available, this office shall work with the agricultural industry, direct marketing organizations, food policy councils, public health groups, nonprofit and philanthropic organizations, academic institutions, district agricultural associations, county, state, and federal agencies, and other organizations involved in promoting food access to increase the amount of agricultural products available to underserved communities and schools in this state. The office, under the auspices of the department, shall do all of the following:
Work with regional and statewide stakeholders to identify urban and rural communities that lack access to healthy food, determine current barriers to food access, and share information to encourage best practices.
Coordinate with other local, state, and federal agencies to promote and increase awareness of programs that promote greater food access.
Promote greater retail sale of healthy food in underserved communities, including promoting the acceptance of California Special Supplemental Nutritional Program for Women, Infants, and Children (WIC) and CalFresh benefits at certified farmers’ markets, encouraging the development and sustainability of local policies that support urban agriculture, increasing the number and quality of food retail outlets in inner city and rural communities, and maximizing resources in the interest of increasing food access.
Foster partnerships between community partners, including farmers, businesses, and nonprofit and philanthropic organizations.
Identify distribution barriers that affect limited food access, including, but not limited to, shortage of food retail outlets, limited store capacity, high distribution costs, and lack of capital funding opportunities, and work to overcome those barriers through the following:
Encouraging food hubs or other aggregation systems.
Coordinating institutional food procurement and buying practices.
Increasing access to information, technical assistance, and resources, including developing opportunities through the California Healthy Food Financing Initiative (Article 3 (commencing with Section 104660) of Chapter 2 of Part 3 of Division 103 of the Health and Safety Code) in the office of the Treasurer.
Identify opportunities and provide technical assistance for collaboration between farmers, regional and local food banks, partner agencies, and nonprofit charitable organizations in the gleaning, collection, and distribution of agricultural products for the purposes of reducing hunger and increasing access to healthy foods.
Identify informational resources and organizations to provide technical assistance on small scale and backyard farming, community gardens, and other agricultural products for residents of underserved communities.
Identify opportunities for collaboration with community organizations, social services, and partner agencies to provide cooking and nutrition education classes to residents of underserved communities.
Coordinate with school districts and representatives to do the following:
Provide tools to facilitate relationships between local producers and school food procurement personnel, and encourage opportunities to incorporate best purchasing practices such as Good Agricultural Practices (GAP) certification and insurance.
Increase the nutritional profile of foods provided in schools.
Increase access to nutrition education programs and information in schools.
There is hereby created the Farm to Fork Account in the Department of Food and Agriculture Fund that shall consist of money made available from federal, state, industry, philanthropic, and private sources.
Notwithstanding Section 13340 of the Government Code, all money deposited in the Farm to Fork Account is hereby continuously appropriated to the department without regard to fiscal years to carry out the purposes of this chapter.
CHAPTER 13. Nutrition Incentive Matching Grant Program [49010. - 49016.]
This chapter shall be known, and may be cited, as the California Nutrition Incentives Act.
The Nutrition Incentive Matching Grant Program is hereby established in the Office of Farm to Fork for purposes of encouraging the purchase and consumption of California fresh fruits, nuts, and vegetables by directly linking California fresh fruit, nut, and vegetable producers with nutrition benefit clients.
For purposes of this chapter, the following definitions shall apply:
“Consumer incentive program” means a program administered by a qualified entity that increases the purchasing value of a nutrition benefit client’s benefits when the benefits are used to purchase California fresh fruits, nuts, and vegetables.
“Nutrition benefit client” means a person who receives services or payments through any of the following:
California Special Supplemental Nutrition Program for Women, Infants, and Children, as described in Section 123280 of the Health and Safety Code.
CalWORKs program, as described in Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the Welfare and Institutions Code.
CalFresh, as described in Section 18900.2 of the Welfare and Institutions Code.
Implementation of the federal WIC Farmers’ Market Nutrition Act of 1992 (Public Law 102-314).
The Senior Farmers’ Market Nutrition Program, as described in Section 3007 of Title 7 of the United States Code.
Supplemental Security Income or State Supplementary Payment, as described in Section 1381 and following of Title 42 of the United States Code.
“Qualified entity” means either of the following:
The Nutrition Incentive Matching Grant Account is hereby created in the Department of Food and Agriculture Fund to collect matching funds from the federal Food Insecurity Nutrition Incentive Grant Program (7 U.S.C. Sec. 7517), if available, and from other public and private sources, to provide grants under the Nutrition Incentive Matching Grant Program. The Nutrition Incentive Matching Grant Program shall provide grants upon the deposit of sufficient funds, including from a successful application of federal grant funding, if available, into the Nutrition Incentive Matching Grant Account.
Notwithstanding any other law, the department may provide grant funds to a grantee in advance of the expenditure of funds by the grantee for implementation of the Nutrition Incentive Matching Grant Program, instead of in the form of a reimbursement after the expenditure of funds for that program, in an amount equal to or less than 50 percent of the grant amount provided in the grantee’s grant agreement pursuant to subdivision (a) and Section 49014, if both of the following conditions are met:
The grantee has declared an operating budget of no more than five hundred thousand dollars ($500,000).
The department makes a determination, based upon a request submitted by the grantee declaring hardship, that an advance payment is essential for the effective implementation of the Nutrition Incentive Matching Grant Program by the grantee.
The Nutrition Incentive Matching Grant Program shall be administered in accordance with all of the following:
Subject to the regulations adopted by the National Institute of Food and Agriculture in the United States Department of Agriculture in accordance with the federal Agricultural Act of 2014 (Public Law 113-79), or any subsequent federal agricultural act, moneys in the Nutrition Incentive Matching Grant Account shall be awarded in the form of grants to qualified entities for consumer incentive programs.
The Office of Farm to Fork shall establish minimum standards, funding schedules, and procedures for awarding grants in consultation with the United States Department of Agriculture and other interested stakeholders, including, but not limited to, the State Department of Public Health, State Department of Social Services, organizations with expertise in nutrition benefit programs or consumer incentive programs, small business owners that may qualify as a qualified entity, and certified farmers’ market operators.
The department shall not use more than one-third of the Nutrition Incentive Matching Grant Program funds for consumer incentive programs with qualified entities described in paragraph (2) of subdivision (c) of Section 49012 that are not otherwise qualified pursuant to paragraph (1) of that subdivision.
The department shall give priority in awarding grants to qualified entities based on, but not limited to, the following:
The number of people who are eligible for, or receiving, nutrition benefit program services.
The prevalence of diabetes, obesity, and other diet-related illnesses.
The availability of access to fresh fruits, nuts, and vegetables.
Demonstrated efficiency in the administration of a consumer incentive program.
For purposes of this section, the following definitions shall apply:
“Corner store” means a small-scale store or grocery store, either an independent store or a chain store, that sells a limited selection of foods and other products, and that is located in a low-income area or low-access area in a rural, urban, or suburban area or tribal community. “Corner store” includes, among others, stores that are not located on a corner and stores commonly referred to as convenience stores or neighborhood stores.
“Low-access area” means a census tract in which there are significant barriers to accessing a supermarket or large grocery store, which may include, but is not limited to, a census tract with at least 500 persons or 33 percent of the population that lives more than one mile, for nonrural areas, or more than 10 miles, for rural areas, from a supermarket or large grocery store.
“Low-income area” means a census tract in which the income of at least 20 percent of the population is at or below the federal poverty level by family size, or if the median family income of the population is at or below 80 percent of the median family income of surrounding census tracts.
“Minimally processed prepared food” may include any food prepared using either of the following processes:
Traditional processes used to make food edible or to preserve it or to make it safe for human consumption, for example, smoking, roasting, freezing, drying, and fermenting.
Physical processes that do not fundamentally alter the raw product or that only separate a whole, intact food into component parts, for example, grinding meat, separating eggs into albumen and yolk, and pressing fruits to produce juices.
“Qualified entity” means any of the following:
A small business or corner store.
A city, county, or city and county, or tribal government or tribal organization with representative low-income areas that contain small businesses or corner stores or that is qualified to provide technical assistance to applicant small businesses or corner stores.
A nonprofit entity or tribal government that works with low-income populations or in low-income areas or low-access areas, and that would do any of the following:
Apply for grants on behalf of a small business, corner store, or tribal members, or a collection of small businesses, corner stores, or tribal members.
Sell or donate California-grown fresh fruits, nuts, vegetables, and minimally processed prepared foods directly in low-income areas or low-access areas.
Provide technical assistance to applicant small businesses or corner stores.
“Recipient” means a small business, corner store, city, county, city and county, tribal government or tribal organization, or other nonprofit entity that is provided funds pursuant to subdivision (c).
“Small business” means a small business, as defined in Section 14837 of the Government Code, that is authorized to accept nutrition benefits from any of the programs listed in paragraphs (1) to (6), inclusive, of subdivision (b) of Section 49012, and is located in a low-income area or low-access area.
The Healthy Refrigeration Grant Program shall be created in the department upon the appropriation of funds, including from a successful application of federal grant funding, if available, by the Legislature for purposes of the Healthy Refrigeration Grant Program.
Upon an appropriation of funds as specified in subdivision (b), the department shall administer the Healthy Refrigeration Grant Program and, pursuant to the program, award grants to qualified entities. If a city, county, or city and county is awarded a grant pursuant to this subdivision, it shall provide grant funds or provide technical assistance, or both, to applicant small businesses and corner stores that are located in low-income areas or low-access areas. Notwithstanding any other law, the department may pay funds to a recipient in advance of the expenditure of funds by the recipient for implementation of the Healthy Refrigeration Grant Program, instead of in the form of a reimbursement after the expenditure of funds for that program, in an amount equal to or less than 90 percent of the grant amount provided in the recipient’s grant agreement.
The department shall award funds to qualified technical assistance providers to provide assistance with grant implementation for program applicants who are not receiving assistance from another recipient. The department shall allocate at least 3 percent of the total amount appropriated to the department in each fiscal year pursuant to subdivision (b) to qualified technical assistance providers pursuant to this paragraph.
When awarding grants, the department shall give priority based on, but not limited to, the prevalence of any of the following in the communities that would be served by the qualified entity:
People who are eligible for, or are receiving, nutrition benefits from any of the programs listed in paragraphs (1) to (6), inclusive, of subdivision (b) of Section 49012.
People with diabetes, obesity, or other diet-related illnesses.
Low availability of and access to fresh fruits, nuts, and vegetables.
When awarding grants, the department shall consider giving priority to qualified entities based on, but not limited to, demonstrated efficiency and capability in the administration of a consumer incentive program, as defined in subdivision (a) of Section 49012.
The department may establish regulations, minimum standards, funding schedules, and procedures for awarding grants to qualified entities, and may adopt any other regulations to implement and administer the Healthy Refrigeration Grant Program.
A recipient shall be required to do all of the following:
A recipient shall be subject to reporting and auditing requirements, as determined by the department.
A city, county, city and county, tribal government, tribal organization, or nonprofit entity that is awarded a grant pursuant to paragraph (1) of subdivision (c) and is providing grant funds to corner stores or small businesses to purchase refrigeration equipment may use up to 20 percent of Healthy Refrigeration Grant Program grant funds for technical assistance.
The receipt of a grant under either program established in this chapter shall not preclude an entity from being eligible to receive a grant under the other program.
CHAPTER 14. Local, Equitable Access to Food Program [49020. - 49021.]
This chapter shall be known, and may be cited as, the Local, Equitable Access to Food (LEAF) Program.
Upon an appropriation by the Legislature for these purposes, the Department of Food and Agriculture, with support from the State Department of Social Services, shall establish a grant program designed to expand the use of EBT acceptance systems at California certified farmers’ markets or tribe-operated farmer’s markets on Indian reservations.
The grant program described in subdivision (b) shall include both of the following:
Grants to certified farmers’ market operators or farmers’ markets operated by tribal governments on Indian reservations to expand the use of EBT acceptance systems at farmers’ markets.
A certified farmers’ market shall only be eligible for a grant pursuant to this paragraph if the certified farmers’ market operator is a local government, a certified producer, or a nonprofit organization.
A certified farmers’ market may use grant funds received pursuant to this paragraph for any activities relating to expanding the use of EBT acceptance systems at farmers’ markets, which may include, but is not limited to, any of the following:
Scaling and improving EBT processes at existing certified farmers’ markets.
Establishing new certified farmers’ markets that accept payment via EBT cards, primarily in underserved communities, including, but not limited to, those in food deserts or with high CalFresh participation.
Operational services, which may include, but is not limited to, the hiring of individuals to operate the EBT acceptance systems and programs that expand the purchasing power of customers using CalFresh benefits at farmers’ markets. A certified farmers’ market may use grant funds to contract with a third party to operate an EBT acceptance system only if the third party is a nonprofit organization that is incorporated in California.
Technical assistance, which may include, but is not limited to, employing a third party nonprofit organization to provide any back-end assistance required to help make a certified farmers’ market a successful and effective EBT retailer.
Educational and outreach activities promoting the ability to use EBT cards at certified farmers’ markets.
If a certified farmers’ market uses grant funds to hire an individual, or to contract with a third party, to operate an EBT acceptance system, all of the following shall apply:
The person operating the EBT acceptance system shall be available at all times the certified farmers’ market is open to the public.
Vendors at the farmers’ market shall not be charged a fee for the operation of an EBT acceptance system.
Vendors shall be reimbursed in full for purchases made using an EBT acceptance system at least once per month.
The person operating the EBT acceptance system shall be located in a central and highly visible area of the farmers’ market.
The person operating the EBT acceptance system shall provide a monthly report to the department with the number of EBT transactions, the amount of CalFresh benefits distributed, and the amount of CalFresh benefits redeemed for each day that the farmers’ market operates.
A certified farmers’ market that receives a grant pursuant to this paragraph shall annually submit a report to the department documenting the use of grant funds and demonstrating that grant funds were used to expand the use of EBT acceptance systems at the farmers’ market.
Grants to nonprofit organizations to provide technical assistance to certified farmers’ markets on the implementation of high-quality EBT acceptance systems.
A nonprofit organization shall only be eligible for a grant pursuant to this paragraph if it is incorporated in California.
The Department of Food and Agriculture shall issue a request for proposals and shall award a grant to one nonprofit organization for each region. The department may award grants for multiple regions to the same nonprofit organization. In selecting grant recipients, the department shall consider demonstrated expertise, capacity, and geographic proximity to certified farmers’ markets.
Nonprofit organizations that receive a grant pursuant to this paragraph may use grant funds to assist certified farmers’ markets in becoming authorized retailers under the CalFresh program, to request free point-of-sale terminals for certified farmers’ markets, and to advise certified farmers’ markets on best practices, including, but not limited to, practices that may help expand the purchasing power of CalFresh benefits at certified farmers’ markets, help to procure market scrip, and acquiring appropriate signage.
Nonprofit organizations that receive a grant pursuant to this paragraph shall use grant funds to create materials that explain the EBT transaction process and shall translate those materials into every language spoken by at least 2 percent of the state’s residents.
Of any appropriation made for the purposes of this chapter, the Department of Food and Agriculture and the State Department of Social Services shall not use more than 5 percent for administrative costs associated with the LEAF program.
Nine months after the Department of Food and Agriculture has issued sufficient grants to evaluate the program established pursuant to this chapter, the department shall submit a report to all appropriate legislative committees. The report shall include, at a minimum, all of the following:
The number of grants issued pursuant to paragraphs (1) and (2) of subdivision (c) of Section 49020.
The average amount of grant funds awarded.
Geographical information for grantees.
The number of grantees located in a food desert, as defined in Section 49015.
Data for the 12 months prior to the grant’s implementation, if available, and annually thereafter for all of the following metrics:
The total benefit dollars spent by CalFresh participants per market.
The average total benefit dollars spent at markets in food deserts and in areas with high CalFresh participation.
An estimate of the change in EBT use relative to the marketing and outreach efforts of grantees.
CHAPTER 14.5. California Farm to School Act [49025. - 49025.8.]
This chapter shall be known, and may be cited, as the California Farm to School Act.
The California Farm to School Program is hereby established, under the administration of the Office of Farm to Fork, for purposes of cultivating equity, nurturing students, building climate resilience, and creating scalable and sustainable change in the school food system.
The California Farm to School Program shall do all of the following:
Increase procurement of foods that are grown or produced in California and are whole or are minimally processed from food producers in California for school meal programs.
Increase hands-on food education opportunities that engage pupils and connect the classroom with the cafeteria, such as activities in school gardens, on farms, in culinary classes, in settings that celebrate traditional foodways and cultivate food sovereignty, and through other experiential learning pathways.
Use regional staff to provide technical assistance and resources, facilitate relationships between local producers and school personnel, and encourage opportunities to incorporate best practices related to scratch cooking, hands-on education, Good Agricultural Practices (GAP), food safety, infrastructure, climate-smart agricultural practices, certification, and insurance.
Develop programming for the California Farm to School Program in consultation with the State Department of Education, the State Department of Social Services, the State Department of Public Health, and any other relevant departments as needed.
Administer the California Farm to School Incubator Grant Program.
Collect data to evaluate program goals and implementation progress.
The office may implement initiatives under the California Farm to School Program, including, but not limited to, initiatives that do any of the following:
State Department of Education.
California Environmental Protection Agency.
California Health and Human Services Agency.
Labor and Workforce Development Agency.
The department may adopt regulations necessary to implement and administer the California Farm to School Program.
DIVISION 18. FIELD CROPS, SEEDS, SEED POTATOES, ONE-VARIETY COTTON DISTRICTS, AND NURSERY STOCK GRADES AND STANDARDS [52001. - 53564.]
CHAPTER 1. Field Crops [52001. - 52100.]
ARTICLE 1. Definitions and General Provisions [52001. - 52006.]
As used in this chapter, “field crop products” includes grain crops, dry bean crops, seeds, forage crops, fiber crops, and other field crops and the manufactured products and byproducts of such field crops.
The director shall do all of the following:
Establish, by regulation, uniform standards for field crop products which shall conform as closely as possible to those which are established by the Secretary of the United States Department of Agriculture.
Establish inspection districts within the state. If such a district is established, inspection service may be rendered in it in accordance with regulations which are adopted by the director.
Establish, upon request, inspection stations at warehouses, docks, or industrial plants, which are within or without an established inspection district. The director may make special regulations which are applicable to each specific inspection station and the conditions under which it shall be established and maintained.
Provide through the regularly established inspection district and stations, sampling, grading, inspection, weighing, and certification service for field crop products within the state or which are shipped into or through the state.
Issue certificates as to quality, condition, and quantity of field crop or other agricultural products in accordance with standards which are established pursuant to this chapter, or any other standards which may be fixed by trade or contract and which do not conflict with official standards.
Adopt regulations for sampling, grading, inspection, weighing, and certification for the purposes of carrying out this chapter.
Fix fees for sampling, grading, inspection, weighing, and certification of field crop products, which fees in the aggregate shall pay the cost of services necessary to perform such sampling, grading, inspection, weighing, and certification. The director may collect such fees in advance of performing the services, but is not required to do so if in his opinion the benefits of such services would be lessened by such advance payments.
The director may enter any place where field crop products are stored, shipped, or sold, for the purpose of carrying out the provisions of this chapter.
The director may, for the purpose of inspection and examination, break the seals of cars and after such inspection has been made shall securely close and reseal such doors as were broken open using a special seal which is provided by the department for the purpose. A record of all original seals broken, the date when broken, a record of all seals which were substituted thereafter, and the date and number of such seals shall be made.
Any railroad which delivers field crop products in cars at any place which is provided with inspection service pursuant to this chapter shall provide convenient and suitable sidetracks at such place as the director may designate, on which every car of field crop products which is delivered by them shall, upon arrival, be set and conveniently arranged for inspection, if such car of field crop products is to be inspected.
The director may assess a penalty of 1.5 percent per month, or fraction thereof, on any fees owed to the department for services rendered under this chapter whenever payment is not received within 30 days after the date of the invoice. The penalty shall be added to the original fee. In no event shall the total penalty for any one billed service exceed 50 percent of the original amount due for that service.
ARTICLE 2. Employees [52031. - 52031.]
The director shall issue to each employee who is authorized to grade, inspect, or weigh the products which are included under this chapter, except those products for which standards have been established pursuant to federal law, a certificate which shows such authority.
ARTICLE 3. Inspection, Grading, Weighing, and Certification [52061. - 52063.]
The director shall inspect, weigh, and grade upon request and certify to any interested party the quality, condition, and quantity of any field crop or other agricultural product under such regulations as he may prescribe. Certificates which are issued by authorized agents of the director are prima facie evidence of the truth of the statements which are contained in them. The presumption established by this section is a presumption affecting the burden of proof, but it does not apply in a criminal action.
Such inspection shall not be made or such certificates issued by any person not specifically authorized by the director in reference to any field crop product for which state standards have been established. Any person so authorized shall comply with the regulations adopted by the director relative to the certification of field crop products.
Any person that is aggrieved by the grading by any authorized inspector of any of the products for which standards have been established pursuant to this chapter may appeal to the director in accordance with such regulations as he may establish. If the appeal pertains to a commodity for which standards have been established pursuant to federal law, the appellant may appeal to the Federal Grain Inspection Service.
ARTICLE 4. Disposition of Funds [52091. - 52091.]
Any money which is received under this chapter shall be paid monthly into the State Treasury and placed to the credit of the Department of Agriculture Fund.
ARTICLE 6. Destruction [52100. - 52100.]
Any person who willfully and knowingly damages or destroys any field crop product, as specified in Sections 42510 and 52001, that is known by the person to be the subject of testing or a product development program being conducted by, or in conjunction or cooperation with the University of California, the California State University System, or any other federal, state, or local government agency, shall be liable for twice the value of the crop damaged or destroyed. For purposes of this subdivision, “in conjunction or cooperation with” means having a contract with the University of California, the California State University System, or any other federal, state, or local government agency involving testing or a product development program relating to that field crop product.
Damages available under this section shall be limited to twice actual damages involving research, testing, and crop development costs directly related to the crop that has been damaged or destroyed.
The rights and remedies available under this section are in addition to any other rights or remedies otherwise available in law or statute.
CHAPTER 2. California Seed Law [52251. - 52515.]
ARTICLE 1. Short Title and Definitions [52251. - 52262.]
This chapter shall be known as the “California Seed Law.”
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Advertisement” means representations, except those on the label, which are disseminated in any manner or by any means that relate to seed which is subject to this chapter.
“Agricultural seed” means the seed of any domesticated grass or cereal, and of any legume or other plant that is grown as turf, cover crop, forage crop, fiber crop, or field crop, and mixtures of such seeds. It does not, however, include any variety that is generally known and sold as flower seed or vegetable seed.
“Board” means the Seed Advisory Board.
“Certification” means to certify as to the variety, purity, quality, type, strain, or other genetic character of agricultural or vegetable seed.
“Labeler” means any person whose name and address appears on the label pertaining to or attached to a lot or container of agricultural or vegetable seed, or both agricultural and vegetable seed, for sale and distribution within the state.
“Labeling” means all labels, and other written, printed, or graphic representations, in any form whatsoever, which accompany and pertain to any seed whether the seed is in bulk or in containers, and it includes invoices.
“Noncommercial seed sharing activity” means the receiving or giving away of seed by a noncommercial entity without the creation of a contractual obligation or an expectation to receive anything of value in return. This definition does not prohibit a noncommercial entity engaging in noncommercial seed sharing activity from receiving the progeny of the seeds it distributes to the extent that the activity does not violate the federal Plant Variety Protection Act (7 U.S.C. Sec. 2321 et seq.). Noncommercial seed sharing activity does not include receiving, storing, or distributing patented seed.
“Person” also means any individual, partnership, corporation, trust association, cooperative association, or any other business unit or organization.
“Prohibited noxious weed seed” means the seed or propagule of any species of noxious weed which the director, as provided in Section 52332, finds and declares to be a prohibited noxious weed seed and which either: (1) is not known to occur, or is of limited distribution, in this state; (2) is not widely distributed throughout the state and which not only reproduce by seed, but also by underground roots or stems; or (3) is under eradication measures in this state.
“Conditioner” means any person who cleans, scarifies, or blends to obtain uniform quality, or who conducts other operations which would change the purity, germination, or identity of any lot of seed, including, but not limited to, packaging, labeling, blending together of uniform lots of the same kind or variety, or the preparation of a mixture.
“Process” means any modification of the form or nature of agricultural or vegetable seed, or any treatment of the seed, which renders it inviable.
“Research” means any research related to the variety, purity, quality, type, strain, or other genetic and physiological characteristics of agricultural or vegetable seed or the production thereof.
“Restricted noxious weed seed” means the seed or propagule of any species of noxious weed, the seed of which is not otherwise designated as prohibited noxious weed seed, and which the director, as provided in Section 52332, finds and declares to be a restricted noxious weed seed.
“Vegetable seed” means the seed of any crop which is or may be grown in gardens or on truck farms and which is generally known and sold under the name of vegetable seed.
“Weed seed” means any noxious weed seed or vegetable seeds, and any seed that is not included in the definitions of agricultural seed, if it occurs incidentally in agricultural seed or vegetable seeds.
“Viability” means a description of living seeds which are capable of germinating.
“Farm” means a place of agricultural production which has annual sales of agricultural products of one thousand dollars ($1,000) or more.
ARTICLE 2. General Provisions [52281. - 52289.]
This chapter and the terms which are used in it shall be construed so as to conform insofar as possible with the construction which is placed upon the Federal Seed Act (7 U.S.C., Sec. 1551, et seq.) and regulations which are issued pursuant to that act, and to effectuate its purpose to make uniform the laws of the states adopting it.
The secretary and, under the supervision and direction of the secretary, the commissioner of each county and the qualified representative of the commissioner, shall enforce this chapter and carry out its provisions and requirements. The secretary shall have the discretion to determine which enforcement activities are conducted by the commissioner in each county and which enforcement activities shall be conducted by department personnel.
The director may cooperate with the United States Department of Agriculture and other agencies in the enforcement of this chapter.
The director may issue such orders, circulars, and announcements as he may deem necessary to further the purposes of this chapter.
If the director or the commissioner finds that any person has violated any provision of this chapter, he may institute proceedings in the court of competent jurisdiction in the area in which the violation occurred, to have such person convicted of the violation, or he may file with the district attorney with the view of prosecution such evidence as may be deemed necessary.
The director shall maintain a properly equipped laboratory for examining and testing seeds.
All prohibited and restricted noxious weed seed which are enumerated in this chapter or in any regulation which is adopted by the director pursuant to this chapter are hereby recognized as noxious within the meaning of the Federal Seed Act (7 U.S.C., Sec. 1551, et seq.).
The Legislature hereby declares all of the following:
It is the intent of this chapter to enable the seed industry, with the aid of the state, to ensure that seed purchased by the consumer-buyer is properly identified and of the quality and amount represented on the tag or label.
The success of agriculture and the seed industry in this state depends upon the continued commitment to industry-funded research in order to improve the quality and variety of seed available to the consumer-buyer.
Noncommercial seed sharing activity contributes significant value to the health of our communities and to the resilience of our food system. This chapter is intended to support noncommercial seed sharing activity and is not intended to supersede any provision of the California Rice Certification Act of 2000 (Chapter 4 (commencing with Section 55000) of Division 20).
The department may post information on its Internet Web site about noncommercial seed sharing activity that includes, but is not limited to, the following:
Germination or varietal purity standards.
Compliance with the federal Plant Variety Protection Act (7 U.S.C. Sec. 2321 et seq.).
Best practices for entities participating in noncommercial seed sharing activities, including public disclosure.
ARTICLE 2.5. Seed Advisory Board [52291. - 52298.]
There is in the department a Seed Advisory Board consisting of 11 members appointed by the secretary, seven of whom shall be labelers registered under the provisions of this chapter, two of whom shall be persons who receive or possess seed for sale in this state, and two of whom shall be members of the public. The members of the board who are labelers registered under the provisions of this chapter shall be representative of the functions of seed production, conditioning, marketing, or utilization.
It is hereby declared, as a matter of legislative determination, that labelers appointed to the Seed Advisory Board pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such board, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The term of office for each member of the board is three years. Vacancies shall be filled by the secretary for an unexpired term.
Members of the board shall receive no salary but may be allowed per diem in accordance with Department of General Services rules for attendance at meetings and other board activities authorized by the board and approved by the director.
The board shall be advisory to the secretary and may make recommendations on all matters pertaining to this chapter including, but not limited to, seed law and regulations, enforcement, seed laboratory diagnostics and annual budgets required to accomplish the purposes of this chapter. The board shall be advisory as to the scope of the program funded by industry and recommend the dollar volume assessments, which, when combined with the registration fee required by this chapter, shall provide adequate funds to support the program.
The board shall annually elect a chairman from its membership, and from time to time such other officers as it may deem advisable.
The board shall meet at the call of its chairman or the director, or at the request of any four members of the board. The board shall meet at least once a year to review budget proposals and fiscal matters related to such proposals.
ARTICLE 2.6. Genetically Engineered Plants [52300. - 52306.]
For purposes of this article only, the following definitions apply:
“Farmer” means the person responsible for planting a crop, managing the crop, and harvesting the crop from land on which a breach of contract or patent infringement is alleged to have occurred.
“Genetically engineered plant” means a plant or any plant part or material, including, but not limited to, seeds and pollen, in which the genetic material has been changed through modern biotechnology in a way that does not occur naturally by multiplication or natural recombination.
“Modern biotechnology” means the application of either of the following:
In vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) and direct injection of nucleic acid into cells or organelles.
Fusion of cells beyond the taxonomic family that overcome natural physiological reproductive or recombinant barriers and that are not techniques used in traditional breeding and selection.
Before a person or his or her agent holding a patent on a genetically engineered plant, may enter upon any land farmed by another for the purpose of obtaining crop samples to determine whether breach of contract or patent infringement has occurred, the person holding the patent or his or her agent shall do all of the following:
Notify the farmer in writing of the allegation that breach of contract or patent infringement has occurred and request permission to enter upon the farmer’s land.
Provide a copy of that notification to the secretary.
Obtain the written permission of the farmer.
Provide notice to the farmer of the following procedures which shall be applicable as provided:
If the farmer withholds permission, the person holding a patent may petition the superior court in the county in which the alleged breach of contract or patent infringement has occurred for an order granting permission to enter upon the farmer’s land.
If the person holding a patent believes that the crop from which samples are to be taken may be subject to intentional damage or destruction, the person may seek a protective order from the superior court. The protective order shall be crafted to minimize interruption or interference with normal farming practices, including harvest and tillage.
The procedures described in Section 52302.
The farmer shall grant or deny access in writing within 10 days of receipt of a request to enter the land pursuant to subdivision (a).
If requested by either party, the secretary or his or her designee shall be present for the sampling, provide for the collection of samples, or conduct any other aspect of the sampling or analysis process as requested. The secretary shall designate an employee or enter into an agreement with an employee or agent of the State of California or a third party unaffiliated with either party to carry out the specified sampling activity as provided in regulations adopted pursuant to Article 2 (commencing with Section 52251) of Division 18. The patentholder shall pay the fee charged by the department under regulations adopted pursuant to that article. The farmer or the agent of the farmer and the person holding the patent may be present at any collection of samples conducted pursuant to this article, and each shall be notified of the time and location of the sample taking at least 24 hours in advance.
Samples for analysis may be taken from a standing crop, from representative standing plants in the field, or from crop residue remaining in the field after harvest.
The results of any testing conducted pursuant to this article shall be sent by registered letter by the testing party to all parties involved in the investigation within 30 days after the results are reported from the testing laboratory.
A farmer shall not be liable based on the presence or possession of a patented genetically engineered plant on real property owned or occupied by the farmer when the farmer did not knowingly buy or otherwise knowingly acquire the genetically engineered plant, the farmer acted in good faith and without knowledge of the genetically engineered nature of the plant, and when the genetically engineered plant is detected at a de minimis level. The authority of a court to determine the presence of de minimis levels of a genetically engineered plant is intended solely for the purpose of assisting in adjudicating claims relating to the possession or use of a patented genetically engineered plant in which the seed labeler, patentholder, or licensee, has rights. Nothing in this section is intended to do any of the following:
Establish, or be used as the basis for establishing, an acceptable level at which a patented genetically engineered plant may be present.
Be used to alter or limit liabilities or remedies for personal injury or wrongful death.
Be used outside or beyond the scope or context of a legal dispute regarding genetically engineered plants.
The provisions of this part are severable. If any provision of this part or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
ARTICLE 3. Exceptions [52311. - 52311.]
A person is not subject to the penalties which are prescribed by this chapter in any of the following cases:
For selling in this state any agricultural or vegetable seed which is incorrectly labeled or represented as to kind, variety, or type, which seed cannot be identified by examination of it, unless he has failed to obtain an invoice or grower’s declaration which gives the commonly accepted name of the kind, kind and variety, or kind and type, and to take such other precautions as may be necessary to insure the identity to be that which is stated.
As to any matter which is required by Article 8 (commencing with Section 52451) of this chapter, for selling such seed in original unopened sealed packages which are fully labeled by another dealer, unless he has failed to have such seed retested and relabeled as to the percentage of germination within the period which is prescribed by Section 52481, or unless he has failed to correct the label after notice that such label has been found to be incorrect.
For shipping, delivering, transporting, or selling within this state any agricultural or vegetable seed which has a false labeling as to percentage of germination or hard seeds, unless he has first been given an opportunity by the director to be heard. This exemption does not, however, relieve any person from the obligation, upon order of an enforcement official, to stop further sale of any seed which is found to be incorrectly labeled as to germination, nor does it exempt such seed from seizure pursuant to this chapter.
ARTICLE 3.5. Funding [52321. - 52325.]
All money that is received by the director pursuant to this chapter shall be deposited in the Department of Food and Agriculture Fund and shall be expended only for the purpose of this chapter.
The secretary shall prepare an annual statement of the operating expenditures and income related to this chapter that shall be presented to the board for review as soon as possible following the termination of any fiscal year. A copy of this statement shall be made available to any interested person upon request.
The department’s cost of carrying out this chapter shall be funded from money that is received by the secretary pursuant to this chapter. The secretary shall also pay annually, in arrears, one hundred twenty thousand dollars ($120,000) to counties as an annual subvention for costs incurred in the enforcement of this chapter. The department’s costs of administering this chapter shall be paid before allocating funds to the counties under this section.
This section shall become inoperative on July 1, 2027, and, as of January 1, 2031, is repealed.
The subvention program under Section 52323 is an optional program available to counties. The subvention to counties under Section 52323 shall be annually apportioned as follows:
At the discretion of the secretary and upon recommendation of the board, counties with no registered seed labelers may annually receive one hundred dollars ($100).
Counties with registered seed labeler operations shall receive subventions based upon enforcement activity generated by the registered seed labeler operations within the county and upon the performance of enforcement activities necessary to carry out this chapter.
This section shall become inoperative on July 1, 2027, and, as of January 1, 2031, is repealed.
Commissioners of counties that choose to participate in the subvention program shall enter into a cooperative agreement with the secretary, whereby the commissioner agrees to maintain a statewide compliance level, determined by the secretary, on all seed within the county. The cooperative agreement shall be in effect for a five-year period. The amount of the subvention designated to each individual participating county shall be established in a memorandum of understanding between the commissioner and the secretary, in consultation with the board.
The secretary, upon recommendation of the board or upon the secretary’s own initiative, may withhold a portion of the funds designated to a county if that county fails to meet the performance standards established by the secretary and set forth in the cooperative agreement with that county.
The secretary shall provide a written justification to the board for any action taken by the secretary that does not fully implement a recommendation made by the board pursuant to subdivision (b).
This section shall become inoperative on July 1, 2027, and, as of January 1, 2031, is repealed.
ARTICLE 4. Regulations [52331. - 52334.]
The director, by regulations, shall do all of the following:
Adopt germination standards for vegetable seed.
Adopt tolerances to be applied in all enforcement procedure required by this chapter.
Prescribe methods of procedure in the examination of lots of any agricultural or vegetable seed, and in securing samples of such lots.
Establish a reasonable schedule of fees for tests, examinations, and services except those which are required for quarantine or other purposes, not directly related to the enforcement of this chapter. The schedule shall be based upon the approximate cost of the service rendered. The director may, however, provide for the examination of seeds for identification purposes without charge.
Adopt such other regulations as will assist in carrying out the purposes of this chapter.
Every standard or tolerance which is adopted pursuant to this chapter shall be as nearly as practicable to that which is established under the Federal Seed Act (7 U.S.C., Sec. 1551, et seq.).
The secretary, by regulation, may adopt all of the following:
A list of the plants and crops that the secretary finds are or may be grown in this state.
A list of the plants and crops that the secretary finds are detrimental to agriculture if they occur incidentally in other crops, and which, therefore, are classed as weed seed except if sold alone or as a specific constituent of a definite seed mixture.
A list of noxious weed seed that the secretary finds are prohibited noxious weed seed, as defined in this chapter.
A list of those noxious weed seed that are not classified as prohibited noxious weed seed and are classified by this chapter as restricted noxious weed seed.
A list of substances that are likely to be used for treating grain or other crop seed that the secretary finds and determines are toxic to human beings or animals if used, and an appropriate warning or caution statement for each substance.
Methods and procedures, upon the recommendation of the board, for the conciliation, mediation, or arbitration of disputes between labelers and any persons concerning conformance with label statements, advertisements, financial terms or the lack of payment by a dealer to a grower, or other disputes regarding the quality or performance of seed. The methods and procedures shall be a mandatory prerequisite to pursuing other dispute resolution mechanisms, including, but not limited to, litigation. However, if conciliation, mediation, or arbitration proceedings are commenced under this section to resolve a controversy, the statute of limitations that applies to a civil action concerning that controversy is tolled upon commencement of the conciliation, mediation, or arbitration proceedings, and until 30 days after the completion of those proceedings. As used in this subdivision, “completion of those proceedings” means the filing of a statement of agreement or nonagreement by the conciliator or mediator, or the rendering of a decision by an arbitrator or arbitration committee.
If a proceeding for the conciliation, mediation, or arbitration of a dispute between a dealer and a grower is commenced under this subdivision for conformance with the financial terms by a dealer to a grower, and the decision in the proceeding is in favor of the grower, the decision may include a provision requiring compensation to the grower for the estimated value of the seed production services a grower provides to a dealer, including, but not limited to, labor, care, and expense in growing and harvesting that product.
If a dealer fails to comply with the financial obligations of a judgment rendered in a conciliation, mediation, or arbitration proceeding between a dealer and a grower commenced pursuant to this subdivision following the conclusion of all appeals in the proceeding, the secretary may revoke the dealer’s registration and prevent the dealer from renewing his or her registration until the time the financial obligation is fulfilled.
Conciliation, mediation, or arbitration shall not affect any enforcement action by the secretary pursuant to this chapter. Regulations adopted by the secretary for the mandatory conciliation, mediation, or arbitration of disputes shall require that adequate notice be provided on the seed label notifying any buyer of the requirement to submit a dispute to mandatory conciliation, mediation, or arbitration as a prerequisite to other dispute resolution mechanisms, including litigation.
Additional labeling requirements for coated, pelleted, encapsulated, mat, tape, or any other germination medium or device used on seed in order that the purchaser or consumer will be informed as to the actual amount of seed purchased.
The director may, by regulation, adopt standards, including noxious weed seed and other pest standards, for premises from which seed shipments are exempt from the provisions of Section 6501 and shall designate such premises as origin inspected warehouses.
The declaration of a plant, seed, nursery stock, or crop as invasive is a power reserved for the secretary.
ARTICLE 4.5. Registration and Assessment [52351. - 52356.]
Every labeler of agricultural or vegetable seed offered for sale in this state, or any person, as defined in Section 52256.5, who sells that seed in this state, shall annually register with the secretary to obtain authorization to sell agricultural or vegetable seed before engaging in this activity, except any of the following:
An individual grower that conditions such seed exclusively for the grower’s own planting use.
A person using agricultural or vegetable seed, or both agricultural and vegetable seed, only for purposes of planting seed increase.
Notwithstanding Section 52351, the secretary may require any entity that conducts noncommercial seed sharing activity to provide notification of its activity on a form created by the secretary. The notification form shall only include the entity’s name and address and the contact information of the responsible party. No fee shall be assessed for submitting the notification form.
An entity shall not be subject to any penalties under this chapter for failing to provide notification to the secretary without first receiving a written request to do so.
Each application for an annual registration shall be accompanied by the payment of a fee in the amount of forty dollars ($40) for each fiscal year or portion of a fiscal year beginning July 1.
If a registration is not renewed within one calendar month after the beginning of the fiscal year, a penalty of 20 percent of the annual registration fee due shall be added to the fee.
Each person who is required to be registered pursuant to Section 52351 shall pay an assessment annually to the secretary in an amount not to exceed forty cents ($0.40) per one hundred dollars ($100) gross annual dollar volume sales of agricultural or vegetable seed, or both, in this state for the preceding fiscal year defined in Section 52352, except in the following cases:
No assessment shall be paid by any labeler or any other person for any agricultural or vegetable seed for which the assessment has been previously paid by another labeler or person, unless the identity of the lot has been changed.
No assessment shall be paid on that portion of a person’s sales of agricultural or vegetable seed, or both, that is sold in containers of four ounces or less net weight of seed.
No assessment shall be paid on agricultural or vegetable seed, or both, sold and shipped out of this state.
The director shall fix the annual assessment established pursuant to Section 52354 in an amount that will provide sufficient funds to carry out this chapter, and the date and method of collecting the assessment. The board shall make a recommendation regarding the level of assessment to the director.
Any registrant who packages or labels seed, or both, with the name and address of the person who only retails the seed within the state shall, at the time of sale to such person, collect from the person whose name and address appears on the label, the assessment due based upon the invoice price for the seed, and pay such assessment to the director, as provided by regulations. The person collecting the assessment as provided under this section may charge, collect, and retain an additional reasonable fee established by the director for handling this collection and payment.
Total expenditures from funds derived from registration fees and dollar volume assessments under this chapter shall not exceed the department’s cost of carrying out this chapter.
ARTICLE 5. Powers of Enforcing Officers [52361. - 52363.]
The secretary, each commissioner, and any qualified representative of the commissioner, shall sample and inspect any agricultural or vegetable seed that is subject to this chapter at the time and place and to the extent as he or she may deem necessary to determine whether the agricultural or vegetable seed is in compliance with the provisions of this chapter, and notify promptly the person who is in possession or control of the seed of any violation.
For the purpose of carrying out the provisions of this chapter, any officer who is required to enforce this chapter may enter upon any public or private premises during regular business hours in order to have access to any seed which is subject to this chapter and the regulations which are adopted pursuant to it.
Any sample which is taken by an enforcement officer in accordance with the regulations which are adopted pursuant to this chapter for the taking of official samples is prima facie evidence of the true condition of the entire lot from which the sample was taken. The presumption established by this subdivision is a presumption affecting the burden of proof.
A written report which is issued by the State Seed Laboratory that shows the analysis of any such sample is prima facie evidence of the true analysis of the entire lot from which the sample was taken. The presumption established by this subdivision is a presumption affecting the burden of proof, but it does not apply in a criminal action.
ARTICLE 6. Stop-Sale Orders [52391. - 52395.]
The secretary or the commissioner and any qualified representative of the commissioner may issue and enforce a written or printed “stop-sale” order to the owner or custodian of any lot of agricultural or vegetable seed that he or she finds is in violation of any provision of this chapter, that shall prohibit further sale of the seed until the officer has evidence that the law has been complied with. Upon compliance, the order shall be removed.
It is unlawful for any person to move or otherwise dispose of any lot of seed which is held under a “stop-sale” order except under written permission of an enforcing officer or under his specific direction and for the purposes which are specified.
The owner or custodian of seed which is held under a “stop sale” order shall, upon demand, have the right to a hearing before the director or the commissioner as to the justification of any such order, and may appeal to the director from any order of the commissioner made under the provisions of this article.
This article does not limit the right of the enforcement officer to proceed as authorized by other sections of this chapter.
Any decision of the director pursuant to this article is subject to review by any court of competent jurisdiction.
ARTICLE 6.5. Seed-certifying Agencies [52401. - 52406.]
The secretary shall, by regulation, establish a list of seed-certifying agencies that the secretary finds qualified to certify as to the variety, purity, quality, type, strain, or other genetic character of agricultural or vegetable seed. The secretary shall consult with the director of the University of California Agricultural Experiment Station before approving the qualifications of any seed-certifying agency.
A seed-certifying agency may conduct or fund research projects that the agency, in its sole discretion, deems beneficial to the seed industry.
Each seed-certifying agency shall establish a schedule of fees, in its discretion with input from the seed industry, for certification services provided and research conducted pursuant to this article.
Notwithstanding Section 52321, fees collected pursuant to this article shall be paid directly to the seed-certifying agency and shall be expended only for a purpose authorized by this chapter.
A seed-certifying agency, pursuant to procedures adopted by the seed-certifying agency, may impose a late charge on any person who fails to pay any fee required by this article within the time required by the seed-certifying agency.
In addition to any late charge, a seed-certifying agency, pursuant to procedures adopted by the seed-certifying agency, may suspend certification services to any person who fails to timely pay any fee or late charge required by this article.
ARTICLE 7. Services [52421. - 52422.]
The director and the commissioner of each county acting under the supervision of the director may do all of the following:
Cooperate with seed-certifying agencies which are officially recognized under the provisions of this chapter.
Supervise the harvesting, cleaning, and packaging of any seed which is eligible for certification, and the affixing of labels and seals to it.
Examine, sample, and test such seeds.
Perform such other services as may be necessary to maintain the identity and quality of certified seed.
The director, or any commissioner with the approval of the director, may annually enter into a cooperative agreement with a qualified seed certification agency for the services that they are authorized to perform, based upon the approximate cost of the services. The approximate cost of the services rendered shall be based on applications to grow certified seed, and certified seed conditioners’ activities within the county, as determined by the cooperating seed certification agency. Upon the request of a recognized seed-certifying agency, the director, through the director’s staff or through the commissioners, may perform the services authorized by this article. Compensation for services performed by a commissioner shall be transmitted to the commissioner for such disposition as may be directed by the board of supervisors. Compensation for services that are performed by the director shall be paid into the Department of Food and Agriculture Fund.
ARTICLE 8. Labeling of Seeds [52451. - 52456.]
This article does not apply to any of the following:
Seed or grain that is not intended for sowing purposes.
Seed that is in storage in, or consigned to, a seed cleaning or conditioning establishment for cleaning or conditioning.
Seed or grain that is transported without transfer of title for sowing on land that is owned by the person by whom the seed or grain was produced.
Seed that is weighed and packaged in the presence of the purchaser from a bulk container, if the container is properly and conspicuously labeled as provided by this chapter.
Seed or grain that is transported from one warehouse to another without transfer of title or in storage in a warehouse, if each container is plainly marked or identified with a lot number or other lot identification and the label information that is required by this article is available at the request of an enforcing officer.
Seed distributed or received by noncommercial seed sharing activity.
Except as otherwise provided in Section 52454, each container of agricultural seed that is for sale or sold within this state for sowing purposes shall bear upon it or have attached to it in a conspicuous place a plainly written or printed label or tag in the English language that includes all of the following information:
The commonly accepted name of the kind, kind and variety, or kind and type of each agricultural seed component in excess of 5 percent of the whole, and the percentage by weight of each. If the aggregate of agricultural seed components, each present in an amount not exceeding 5 percent of the whole, exceeds 10 percent of the whole, each component in excess of 1 percent of the whole shall be named together with the percentage by weight of each. If more than one component is required to be named, the names of all components shall be shown in letters of the same type and size.
The lot number or other lot identification.
The percentage by weight of all weed seeds.
The name and approximate number of each kind of restricted noxious weed seed per pound.
The percentage by weight of any agricultural seed except that which is required to be named on the label.
The percentage by weight of inert matter. If a percentage by weight is required to be shown by any provision of this section, that percentage shall be exclusive of any substance that is added to the seed as a coating and shown on the label as such.
For each agricultural seed in excess of 5 percent of the whole, stated in accordance with paragraph (1), the percentage of germination exclusive of hard seed, the percentage of hard seed, if present, and the calendar month and year the test was completed to determine the percentages. Following the statement of those percentages, the additional statement “total germination and hard seed” may be stated.
The name and address of the person who labeled the seed or of the person who sells the seed within this state.
Subdivision (a) does not apply in the following instances:
The sale is an occasional sale of seed grain by the producer of the seed grain to their neighbor for use by the purchaser within the county of production.
Any cannabis seed, as defined in Section 26001 of the Business and Professions Code, sold or offered for sale in the state.
All determinations of noxious weed seeds are subject to tolerances and methods of determination prescribed in the regulations that are adopted pursuant to this chapter.
For purposes of this section, “neighbor” means a person who lives in close proximity, not to exceed three miles, to another.
Except as otherwise provided in Section 52454, each container of vegetable seed that is for sale or sold within this state for sowing purposes shall bear upon it, or have attached to it, in a conspicuous place, a plainly written or printed label or tag in the English language, that gives all of the following information:
Name of kind and variety of seed.
For any seed that germinates less than the standard last established by the secretary under this chapter, the percentage of germination, exclusive of hard seed; the percentage of hard seed, if present; the calendar month and year the test was completed to determine those percentages; and the words “Below Standard” in not less than eight-point type.
Name and address of the person that labeled the seed, or of the person that sells the seed within this state.
In addition to the information required in subdivisions (a), (b), and (c), on each container of more than one-half pound (227 grams), the label shall include both the lot number or other lot identification and the calendar month and year the germination test was completed.
Any lot of more than one container of seed which is transported to a dealer for resale, or any lot of more than five containers of seed which is sold to a consumer, is exempt from the requirements which are prescribed by Section 52452 or 52453 if both of the following requirements are complied with:
Each container is plainly marked or identified with a lot number or other lot identification.
The invoice and one or more of the containers bears the tag or label which is required by such sections.
In addition to the labeling requirements of this article, all seed at the time of sale by a retail merchant for nonfarm usage, shall conspicuously bear upon the labeling of the seed a viability assurance statement.
The statement shall be “SELL BY (month) (year),” or “USE BEFORE (month) (year)”. The month and year in the statement shall not exceed the 15-month retail time period allowed by subdivision (b) of Section 52481.
The statement shall be conspicuous and in capital letters of the same size of type as other printed material on the labeling and contiguous to the germination date.
The statement shall be affixed at the time of labeling for those containers destined for retail sales.
For vegetable seed sold in containers of one-half pound (227 grams) or less, the viability assurance statement may read “Packed for (year) season” as an alternative to the “SELL BY (month) (year)” statements referenced in subdivision (a).
In addition to the labeling requirements of this article, all seed, except seed at the time of sale by a retail merchant for nonfarm use, shall conspicuously bear upon the label adequate notice of the requirement to follow the conciliation, mediation, or arbitration procedures governing disputes between labelers and any person, as authorized by this chapter, and the consequences of failing to follow those procedures.
ARTICLE 9. Violations [52481. - 52489.]
Except as otherwise provided in this section or in Section 52486, it is unlawful for any person to ship, deliver, transport, or sell any agricultural or vegetable seed within this state, other than the seed that is described in Section 52451, unless the test to determine the percentage of germination that is required by Article 8 (commencing with Section 52451) has been completed within the following period, exclusive of the calendar month in which the test is completed, immediately prior to shipment, delivery, transportation, or sale:
In the case of any agricultural or vegetable seed that is shipped, delivered, transported, or sold to a dealer for resale, eight months.
In the case of any agricultural or vegetable seed that is sold at retail, 15 months.
In the case of any agricultural or vegetable seed that is packaged under conditions that the secretary finds and determines will prolong the viability of the seed, the secretary may designate, in regulations that are adopted pursuant to this chapter, a longer period than otherwise specified in this section, and may require any additional labeling that may be necessary to maintain identification of seed that is packaged under these conditions.
Seed labeled under Section 52455 is not subject to subdivision (b) upon expiration of the viability assurance statement. This exemption does not limit the right of the enforcing officer to enforce other applicable sections of this chapter.
Except as otherwise provided in Section 52486, it is unlawful for any person to ship, deliver, transport, or sell any agricultural or vegetable seed within this state that is within any of the following classes:
Is not labeled in accordance with the provisions of this chapter. This subdivision does not, however, apply to any seed that is described in Section 52451.
Contains prohibited noxious weed seed, subject to tolerances and methods of determination prescribed in the regulations that are adopted pursuant to this chapter. This subdivision does not, however, apply to any of the seed that is described in subdivision (a) or (b) of Section 52451.
Has false or misleading labeling, or pertaining to which there has been a false or misleading advertisement.
Is represented to be certified seed or registered seed, unless it has been produced and labeled in accordance with the procedures and in compliance with the rules and regulations of a seed-certifying agency that is officially recognized under the provisions of this chapter, if produced in this state, or under the provisions of the Federal Seed Act (7 U.S.C., Sec. 1551, et seq.), as enacted, and rules and regulations that are adopted pursuant to that act, if produced outside of this state.
Contains more than 112 percent by weight of all weed seeds. This subdivision does not, however, apply to any seed that is described in subdivision (a), (b), or (c) of Section 52451.
To sell, by variety name, seed not certified by an official seed-certifying agency when it is a variety for which a certificate of plant variety protection under the United States Plant Variety Protection Act (84 Stats. 1542; 7 U.S.C. Sec. 2321, et seq.) specifies sale only as a class of certified seed, except that seed from a certified lot may be labeled as to variety name when used in a mixture by, or with the written approval of the owner of the variety.
It is unlawful for any person to do any of the following:
Detach, alter, deface, or destroy any label, warning tag, or notice that is provided for in this chapter or in the regulations that are adopted pursuant to it, or alter or substitute seed, in a manner that may defeat the purposes of this chapter.
Disseminate any false or misleading advertisement concerning agricultural or vegetable seed in any manner or by any means.
Hinder or obstruct in any way any authorized person in the performance of his or her duties under this chapter.
Fail to comply with a “stop-sale” order.
Except as otherwise provided in Section 52486, it is unlawful for any person to ship, deliver, transport, or sell agricultural or vegetable seed that is treated after harvest with any substance that is likely to be poisonous or toxic to human beings or animals unless there is conspicuously shown on the analysis tag or label, on a separate tag or label attached to each container, or on each container all of the following information:
“TREATED SEED” and the signal word for the category of treatment material, all in capital letters.
The chemical or generic name of the treatment material.
An appropriately worded statement as to the hazards to humans and animals.
An appropriately worded statement of practical treatment, if present.
This information shall be derived from the technical chemical label of each substance applied to the seed.
When more than one substance is applied, each substance shall be noted on the label and the seed shall be labeled for each substance applied with the signal word for the substance with the highest level of toxicity.
For seeds treated with substances subject to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.), the label shall include, for each pesticide, the following information:
The registration number from the United States Environmental Protection Agency, if applicable.
The quantity applied by weight or amount per seed.
This subdivision shall become operative January 1, 2027.
This subdivision shall only apply to seeds shipped, delivered, transported, distributed, or sold in the state for planting within the state.
The requirements of this subdivision do not apply to seeds packaged before January 1, 2027.
It is unlawful for any person to sell or divert for use or for processing, either for human or animal consumption, any grain or other crop seed which is treated after harvest with any substance that is likely to be poisonous or toxic to human beings or animals, unless there is an established state or federal pesticide residue tolerance for such poisonous or toxic substance on the specific grain or crop seed, and such pesticide residue tolerance is not exceeded.
Sections 52481, 52482, and 52484 of this article do not apply to any common carrier in respect to any seed which is transported or delivered for transportation in the ordinary course of its business as a carrier if such carrier is not engaged in conditioning or merchandising seed which is subject to the provisions of this chapter.
A violation of this chapter for having shipped, delivered, transported, or sold agricultural or vegetable seed that has false or misleading labeling shall be construed to have been committed at the time of discovery of the violation, and a complaint charging the violation shall be filed within one year from the time of discovery. No complaint that charges such a violation shall, however, be filed after two years from the date of sale.
It is unlawful to violate any provisions of this chapter or any regulation adopted pursuant to this chapter.
It is unlawful for any person to violate the provisions of the United States Plant Variety Protection Act contained in Part J (commencing with Section 2531), Part K (commencing with Section 2541), or Part L (commencing with Section 2561) of Subchapter III of Chapter 57 of Title 7 of the United States Code, as enacted.
ARTICLE 10. Abatement [52511. - 52515.]
Any lot of agricultural or vegetable seed that does not comply with this chapter is a public nuisance and is subject to seizure on complaint of the secretary or the commissioner or any enforcing officer of this chapter to a court of competent jurisdiction in the area in which the seed is located.
The district attorney of the county in which any such nuisance is found, on the relation of the director or the commissioner or any enforcing officer of this chapter, shall maintain, in the name of the people of the State of California, a civil action to abate and prevent such nuisance. Upon judgment and by order of the court, such nuisance shall be condemned and destroyed in the manner directed by the court, or relabeled, denatured, or otherwise processed, or released upon such conditions as the court in its discretion may impose to insure that the nuisance will be abated.
If the owner fails to comply with the order of the court within the time which is specified in the order, the court may order disposal of the seed and containers, or their sale, under those terms and conditions as the court may prescribe, by the director or the commissioner or any enforcing officer of this chapter, or by the sheriff or marshal. If the court orders the sale of any of the seed and containers which can be salvaged, the costs of disposal shall be deducted from the proceeds of sale and the balance paid into court for the owner.
A proceeding pursuant to this article if the value of the property seized amounts to thirty-five thousand dollars ($35,000) or less is a limited civil case.
The director may, after hearing, refuse to issue or renew, or may suspend or revoke a registration for any violation of this chapter or any regulation adopted pursuant to this chapter. Proceedings under this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1, Division 3, Title 2 of the Government Code.
CHAPTER 3. Seed Potato Certification [52651. - 52651.]
ARTICLE 1. Seed Potato Certification Agencies [52651. - 52651.]
The secretary may, by regulation, designate as a seed potato certification agency, any person or agency that the secretary finds is qualified to certify seed potatoes as to their variety, quality, and freedom from pests and diseases. The secretary shall consult with the University of California and representatives of the seed potato industry of California before approving the qualifications of any seed potato certification agency.
CHAPTER 4. San Joaquin Valley Quality Cotton District [52851. - 52993.]
ARTICLE 1. General Provisions [52851. - 52856.]
The Legislature hereby declares that the purposes of this chapter are to promote, encourage, aid, and protect the planting and growing of cotton in the State of California; that it believes that these purposes can best be accomplished by restricting within certain areas the planting and growing of but two types of cotton, which are Acala and Pima; that, by this means, it is possible to bring the cotton-growing industry in the state to its highest possible development and to ensure the growing of the most superior varieties of cotton; that the planting of pure seed is essential to the production of more marketable and better grades of cotton and cottonseeds, and for the production of grades of fiber best suited for manufacturing purposes; and that the planting of impure seeds or plants, other than those authorized in these areas, is an economic harm and loss to the planter thereof and an irreparable injury to the adjoining or neighboring growers.
The Legislature also declares that the restriction of the use to which cotton lands and cotton gins may be used, as provided in this chapter, is essential to the highest development of the cotton-growing industry; otherwise the different types of seed will be mixed, crossing will take place in the field, the varieties will be mongrelized and cease to be uniform, the fiber will deteriorate in quality, and the seed will be rendered unfit for planting.
The Legislature declares that the development of varieties or species of cotton which meet the desired quality of Acala or Pima cotton should be encouraged, if reasonable restrictions are imposed to prevent contamination and preserve integrity of the high quality cotton produced within the district.
The production and marketing of Acala and Pima cotton produced in this state is hereby declared to be affected with public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the board, nor by an individual in accordance with this chapter or pursuant to the regulations adopted under this chapter, is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
The Legislature further declares that all cotton approved by the board for planting in the district is for the benefit of the cotton-growing industry and is not for the exclusive or limited use of any person.
ARTICLE 2. Definitions [52861. - 52868.]
“Board” means the San Joaquin Valley Cotton Board.
“Industry members” means cottonseed oil crushers, handlers of raw cotton fiber, and cotton ginners or employees thereof.
“Handlers of raw cotton fiber” or “merchant” means any person or organization that is primarily engaged in the business of buying and selling spot cotton or forward contract cotton.
“Cotton ginning organization” means any person or organization owning or operating one or more cotton gins.
“District” means the “San Joaquin Valley Quality Cotton District” which is comprised of all the counties in the San Joaquin Valley where cotton is produced.
“Delinter” means any person who, by any means or method, causes the short fibers to be removed from the seed coat of cottonseed.
“Cotton growers” or “growers” means any person in the district who produces, or causes to be produced, cotton for market.
“Handlers of whole cottonseed” means any person or organization that is engaged in the business of buying, selling, or processing whole cottonseed.
ARTICLE 3. San Joaquin Valley Cotton Board [52871. - 52890.]
There is in the state government the San Joaquin Valley Cotton Board. The board shall be composed of seven cotton growers, three cotton industry members operating in the San Joaquin Valley, and one public member.
The grower members shall be elected by the cotton growers in the county they represent, as follows:
There shall be five elected growers representing each of the five counties within the district with the largest cotton acreage.
There shall be an additional elected grower from each of the two counties within the district with the largest cotton acreage.
The three cotton industry members shall be elected as follows:
One member elected from and by handlers of whole cottonseed.
One member elected from and by handlers of raw cotton fiber.
One member elected from and by cotton ginning organizations.
An organization may not be represented in more than one of the categories specified in the foregoing paragraphs.
One public member shall be appointed by the secretary. The board shall submit a list of three public members to the secretary. The secretary shall choose one public member from the list to serve as a member on the board. If the secretary determines that those on the list are unacceptable, the board shall submit a new list containing the names of three public members from which the secretary shall choose one. This procedure shall continue until a public member has been selected by the secretary to serve on the board.
In addition, the board shall select one representative each from the United States Department of Agriculture and the University of California, and two representatives each from cotton planting seed delinting organizations, and organizations involved in the reproduction, sale, and distribution of cottonseed in the district, to serve as nonvoting ex officio members of the board. These members shall not be selected from the same organization.
The secretary shall supervise and conduct any election held pursuant to Section 52871 and this section. Elections for grower members and elections for industry members shall be conducted as follows:
The secretary shall distribute nomination petitions to each person or organization listed pursuant to Section 52872, and authorized to vote under Section 52871 in the election being held. The petition of signatures in support of a nominee signed by those whom the nominee represents shall be submitted to the secretary in order to nominate any candidate for election to the board within 30 days from the date of the secretary’s distribution of those petitions. There shall be at least 10 signatures on each petition of nomination for a cotton grower candidate, at least two signatures on each petition of nomination for handlers of whole cottonseed candidates, at least six signatures on each petition of nomination for handlers of raw cotton fiber candidates, and at least 10 signatures on each petition of nomination for cotton ginning candidates.
The submitted petitions for nomination shall be verified by the secretary, and an election ballot containing the names of persons nominated shall thereafter be mailed to the persons and organizations eligible to vote in the election.
Each member of the board, except the ex officio members, shall have an alternate member, who shall be a candidate for election in the same manner as the member. The candidate receiving the greatest number of votes in the election for the vacant position shall be the member. The candidate with the next highest number of votes in the election for the vacant position shall be the alternate. In the event of a tie vote in electing members or alternates, the secretary, by lot, shall determine the member and alternate.
An alternate member, in the absence of the member for whom he or she is alternate, shall sit in place of the member on the board, and shall have, and be able to exercise, all the rights, privileges, and powers of the member when sitting on the board. In the event of death, removal, resignation, or the disqualification of a member, the alternate shall act as a member on the board for the remainder of the term.
If an alternate member is unable to continue serving in that position because he or she has replaced a member on the board or is unable to continue serving for any other reason, a new alternate shall be selected, by majority vote of the board. However, that person shall fulfill all the qualifications set forth in this article as required for the alternate member whose office he or she is to fill. Qualification of any person to fill vacancies on the board shall be certified, in writing, by the secretary.
Grower members and their alternates on the board shall have a financial interest in producing, or causing to be produced, cotton for market.
Cotton industry members or their alternates shall have a financial interest in, or be employed by, any person or organization handling cotton for markets.
The public member or his or her alternate on the board shall have all the powers, rights, and privileges of any other member on the board, but shall not have any direct financial interest in the cotton industry.
The term of office for each member, alternate, and ex officio member of the board is four years.
Upon implementation of Article 9.5 (commencing with Section 52951), the board shall have the power to sue and be sued, and to enter into contracts. Copies of its proceedings, records, and acts, when certified by the secretary of the board, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
The board may appoint its own officers, including a chairman, one or more vice chairmen, and such other officers as it deems necessary. The officers shall have the powers and duties as may be delegated to them by the board.
The board may appoint committees composed of both members and nonmembers of the board to advise the board in carrying out this chapter. The board may retain outside counsel, with the approval of the Attorney General, when a possibility of conflict exists between the board and the department.
The board shall meet at least once a year, or at the call of the chairperson or the secretary, or at the request of any six voting members of the board.
A quorum of the board shall be any six voting members or their alternates. The vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the board.
The secretary or the secretary’s representatives shall be notified and may attend each meeting of the board.
No board member, alternate, member of a committee who is a nonmember of the board, or ex officio member shall receive a salary, but may, if approved by the board, be allowed per diem in accordance with Department of Human Resources rules for each day spent in actual attendance on, or in traveling to and from, meetings of the board or committees of the board, or on special assignment for the board.
Upon board action, all moneys received by any person from the assessments levied under the authority of Article 9.5 (commencing with Section 52951) of this chapter shall be deposited in banks designated by the board and shall be disbursed by order of the board through the agent or agents it designates for that purpose. Any designated agent shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in California, in favor of the board, conditioned upon the faithful performance of the agent’s duties and the strict accounting of all funds of the board, in the amount determined by the board.
The state shall not be liable for the acts of the board or its contracts. Payment of all claims arising by reason of the administration of this chapter or acts of the board shall be limited to the funds collected under this chapter. No member of the board or alternate member, or any employee or agent thereof, shall be personally liable on the contracts of the board nor shall a board member, alternate member, or employee of the board be responsible individually or jointly in any way to any cotton grower or handler or any other person for error in judgment, mistakes, or other acts, either of the board or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No board member or alternate member shall be held responsible individually for any act or omission of any member of the board. The liability of the board members shall be several and not joint, and no board members shall be liable for the default of any other board member.
The secretary may require the board to correct or cease any activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter. If the board refuses or fails to cease those activities or functions or to make such corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities of the board until the time that the cessation or correction of activities or functions as required by the secretary have been accomplished.
Written notice to cease any activity that is the subject of a contract entered into by the board prior to the notice, shall not be effective until after the period of notice for termination provided in the contract or 120 days, whichever is shorter. Upon service of the written notice, the secretary shall give written notification to the board of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter.
Either the secretary or the board may bring an action for judicial relief in a court of competent jurisdiction, which may thereafter issue a temporary restraining order, a permanent injunction, or other applicable relief.
ARTICLE 4. Duties and Powers of the Board [52891. - 52893.]
The powers and duties of the board shall include, but not be limited to, all of the following:
Establish a separate Acala and Pima quality standard. When determining each standard, the board shall consider fiber length, strength, uniformity, micronaire, seed quality, productivity, resistance to disease, including verticillium wilt, and spinning characteristics.
Annually review test data and approve for release and planting within the district, cotton varieties that meet the existing Acala or Pima quality standard but are superior in some meaningful respect, as determined by the board, and that have qualities generally recognized by the cotton industry to be essential factors in producing that cotton within the district, or significant area within the district.
Conduct or commission tests for cotton production and quality evaluation in accordance with procedures to be adopted pursuant to Section 52902, and assess fees necessary for administering those tests.
Conduct periodic referendums, as specified in this chapter, regarding the continuation of the district. A referendum shall also be conducted whenever the board proposes substantive changes in the Acala or Pima quality standard.
Require all cotton varieties approved for release for planting, and produced in the district, to contain the word “Acala” or “Pima” in labeling and all lint to be marketed as “SJV Acala” or “SJV Pima.”
Recommend to the secretary on all matters pertaining to this chapter including, but not limited to, the program for enforcing this chapter and the setting of an appropriate seed assessment rate necessary for the administration of this chapter.
The board may, by resolution, take actions that are in the best interest of the cotton industry in the district, which shall include, but not be limited to, the growing of cottons other than Acala and Pima. The resolution may contain provisions to protect the quality and integrity of approved fiber and seed grown within the district.
The resolution shall be subject to a referendum conducted by the secretary, upon the request of the board, using information supplied by the board and other information as determined by the secretary, or a referendum shall be conducted by the secretary if a petition signed by not less than 5 percent of the qualified cotton growers in the district is presented to the board. The costs of any referendum conducted pursuant to this chapter shall be paid from funds collected pursuant to this chapter.
The secretary shall find the resolution approved if either of the following conditions is met:
Not less than 65 percent of the cotton growers certified by the secretary who voted in the referendum, voted in favor, and that those cotton growers so voting represent at least a majority of the cotton producing acreage of all cotton growers who voted in the referendum.
At least a majority of those cotton growers who voted in the referendum voted in favor and that those cotton growers so voting represent not less than 65 percent of the cotton producing acreage of all cotton growers who voted in the referendum. The secretary shall then so certify to the board, which shall then make the approved resolution effective as an order of the board within 10 days after the certification by the secretary.
Upon implementation of Article 9.5 (commencing with Section 52951), the powers and duties of the board shall also include, but not be limited to, all of the following:
To adopt, and from time to time alter, rescind, modify, and amend, all proper and necessary rules, regulations, and orders for carrying out the provisions of this chapter and for exercising its powers and the performance of its duties, including rules for regulation of appeals from any rule, regulation, or order of the board.
To administer and enforce this chapter, and to do and perform all acts and exercise all powers incidental to or in connection with or deemed reasonably necessary, proper, or advisable to effectuate the purposes of this chapter.
To employ a manager to serve, at the pleasure of the board, as president and chief executive officer of the board and other personnel, including legal counsel, that are necessary to carry out the provisions of this chapter.
To establish offices and incur expense, and to enter into any and all contracts and agreements, and to create such liabilities and borrow such funds in advance of receipt of assessments as may be necessary, in the opinion of the board, for the proper administration and enforcement of this chapter and the performance of its duties.
To promote the sale of cotton by advertising and other promotional means for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for cotton.
To enter into cost-sharing advertising with other products considered, by the board, to be fair and equitable to both parties.
In the discretion of the board, to make, in the name of the board, contracts to render service in formulating and conducting plans and programs, and other contracts or agreements deemed necessary for the promotion of the sale of cotton.
In the discretion of the board, to conduct, and contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from that research or elsewhere regarding the marketing and production of cotton. In connection with that research, the board shall have the power to accept contributions of, or to match, private, state, or federal funds that may be available for those purposes, and to employ or make contributions of funds to other persons or state or federal agencies conducting that research.
In the discretion of the board, to publish and distribute, without charge, a bulletin or other communication for dissemination of information relating to the cotton industry to growers and other industry members.
The board may require that all cottonseed delinted for planting within the district be certified by a qualified seed certification agency as provided by subdivision (d) of Section 52482.
ARTICLE 5. Nonapproved Variety Research [52901. - 52903.]
The planting, possessing for planting, growing, picking, harvesting, ginning of cotton, delinting of cottonseed, or sale of lint by anyone conducting research on nonapproved varieties shall be in compliance with regulations adopted by the department. The department shall also adopt regulations to accomplish all of the following purposes:
Maintain the integrity of approved Acala or Pima cotton and prevent contamination of those types of cotton.
Require that applicants notify the department regarding the location of test sites and of the dates and procedures for planting, harvesting, and ginning of cotton.
Establish a procedure for importing cottonseed into the district.
Before any nonapproved cotton is approved by the board for release and planting in the district, it shall be submitted to the board for production and quality evaluation and tests. The secretary, in consultation with the board and the University of California, shall adopt procedures for testing nonapproved cotton varieties. Variety tests shall be conducted for a minimum of three years prior to approval and release of the variety.
The secretary, by permit, may allow seed cotton produced outside the district to be ginned within the district if the planting seed has met the requirements of subdivision (c) of Section 52901. Cottonseed and lint resulting from these ginnings shall be disposed of as directed by the permit. Permittees may be charged an assessment not to exceed four dollars ($4) per bale to recover the department’s costs for permit enforcement.
ARTICLE 6. Exceptions [52911. - 52911.]
This chapter does not apply to the transportation of cottonseed through the district established by this chapter, from a point outside of the district to a destination outside of the district.
ARTICLE 7. Seed Distribution [52921. - 52923.]
All breeders seed for varieties developed by the United States Department of Agriculture or the University of California, and approved for release and planting by the board shall be allocated to the Foundation Seed and Seed Certification Service (FSSC) for expansion to foundation seed in cooperation with the board.
FSSC shall distribute foundation seed to all qualified recipients. If there is not enough foundation seed available to satisfy all requests for foundation seed, FSSC may allocate the seed based upon any reasonable criteria, such as prior years acreage or allocation.
FSSC shall provide a method that will enable persons requesting foundation seed who have no history of cottonseed distribution to receive an initial allocation of foundation seed.
FSSC shall develop criteria in consultation with the board for the allocation of foundation seed to qualified recipients. FSSC shall determine who is a qualified recipient and allocate foundation seed pursuant to that criteria.
ARTICLE 8. Referendum [52931. - 52938.]
A referendum of all cotton growers within the district shall be conducted if a petition, signed by not less than 5 percent of the cotton growers in the district, is submitted to the secretary, which calls for a referendum pertaining to the operation of this chapter.
This chapter shall remain operative if either of the following conditions is met:
Not less than 65 percent of the cotton growers certified by the secretary who voted in the referendum, voted in favor of this chapter, and those cotton growers so voting represent at least a majority of the cotton producing acreage of all cotton growers who voted in the referendum.
At least a majority of those cotton growers who voted in the referendum voted in favor of this chapter and those cotton growers so voting represent not less than 65 percent of the cotton producing acreage of all cotton growers who voted in the referendum.
Nonreceipt of a ballot shall not invalidate such a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 52932, he or she shall so certify and give notice of that favorable vote to the cotton growers in the district.
If the secretary finds that a favorable vote has not been given as provided in Section 52932, the secretary shall so certify and declare all provisions of this chapter inoperative.
A referendum shall be held if the board proposes to implement promotion and research funding as provided in Article 9.5 (commencing with Section 52951) of this chapter.
The board may call for a referendum at any time.
ARTICLE 9. Board and Enforcement Funding [52941. - 52945.]
Any person who has cottonseed delinted for planting purposes under this chapter, shall annually pay to the secretary an assessment in an amount not to exceed six dollars ($6) per hundredweight on the undelinted weight of the cottonseed.
Cottonseed delinters, by June 15th of each year, shall provide the secretary with the name and address of each person having cottonseed delinted and the undelinted weight of their cottonseed.
The assessment shall be used exclusively for enforcement of the provisions of this chapter, and the board functions including cotton variety testing and related administrative expenses.
The secretary, after investigation and due notice, may fix the annual assessment provided under Section 52941 at a lesser amount that would provide sufficient funds to defray the board and enforcement costs incurred in administering this chapter.
The assessment shall be paid to the secretary within one calendar month after July 1 of each year, for cottonseed delinted in the preceding fiscal year or portion of a fiscal year beginning July 1, except that no assessment shall be paid by any person or organization for any cottonseed for which the assessment has been previously paid. If not paid within that period, a penalty of 10 percent of the assessment owed shall be due and payable to the secretary.
All moneys that are received by the secretary pursuant to this chapter shall be deposited in the Department of Food and Agriculture Fund and shall be expended only for the purposes of this chapter.
ARTICLE 9.5. Promotion and Research Funding [52951. - 52953.]
The board is authorized to annually assess cotton growers in the district in an amount not to exceed one-half of 1 percent of each grower’s gross dollar value from the previous year’s cotton crop.
The board shall develop a procedure for collecting assessments under this article.
Collection of the assessment may be required of cotton growers or cotton handlers.
A penalty of 10 percent of the unpaid assessment fee due and payable may be imposed.
ARTICLE 10. Enforcement [52961. - 52961.]
The secretary, and the commissioner of each county acting under the secretary’s supervision, shall enforce this chapter and carry out its provisions and requirements.
ARTICLE 11. Violations and Penalties [52971. - 52976.]
It is unlawful for any person to violate the provisions of this chapter.
Except as otherwise provided in Article 5 (commencing with Section 52901), and Article 12 (commencing with Section 52981), in the district established by this chapter, it is unlawful for any person to plant, possess for planting, pick, harvest, gin, or delint any cotton except those seeds or plants that are approved by the board for planting within the district.
Any person who violates any provision of this chapter is guilty of a misdemeanor and, in addition thereto, is liable in a civil action for all damages that may be occasioned or caused by a violation of this chapter.
Any seed cotton, cotton plant, or cottonseed that does not comply with this chapter is a public nuisance and is subject to seizure on complaint of the secretary or commissioner to a court of competent jurisdiction in the area in which the seed cotton, cotton plant, or cottonseed is located.
The district attorney of the county in which any nuisance is found, at the request of the secretary or the commissioner, shall maintain, in the name of the people of the state, a civil action to abate and prevent the nuisance. Upon judgment and order of the court, that nuisance shall be condemned and destroyed in the manner directed by the court, denatured, or otherwise processed, or released upon conditions that the court may impose to ensure that the nuisance will be abated.
If the owner fails to comply with the order of the court within the time that is specified in the order, the court shall order the secretary, commissioner, sheriff, or marshal to dispose of the seed cotton, cotton plant, or cottonseed and containers, under those terms and conditions as the court may describe.
If the court orders the sale of any of the seed cotton, cotton plants, or cottonseed and containers that can be salvaged, the costs of disposal shall be deducted from the proceeds of sale and the balance shall be paid into court for the owner.
ARTICLE 12. Growing of Nonapproved Varieties [52981. - 52982.]
Notwithstanding any other provision of this chapter, nonapproved varieties of cotton may be grown in the district, subject to regulations proposed by the board and adopted by the department.
The department shall adopt regulations that ensure that the growing of nonapproved varieties of cotton do not adversely affect the quality of Acala and Pima cotton approved to be grown in the district.
Article 9 (commencing with Section 52941), Article 10 (commencing with Section 52961), and Article 11 (commencing with Section 52971) apply to this article, except that the secretary may increase the assessment specified in Article 9 (commencing with Section 52941) in the amount necessary to enforce the regulations adopted by the department for nonapproved varieties of cotton grown in the district pursuant to this article, in order to ensure the quality of Acala and Pima cotton grown in the district.
ARTICLE 13. Operation [52991. - 52993.]
Except as specified in Section 52992, on and after January 1, 2014, the provisions of this chapter, and any regulations adopted pursuant to this chapter, shall become inoperative unless either of the following occurs:
A resolution is approved in accordance with the procedures specified in subdivision (c) of Section 52891.1, as that section read on January 1, 2013, to continue the operation of this chapter.
The secretary receives a petition from members of the cotton industry in the San Joaquin Valley and makes a determination that circumstances in the California cotton industry indicate that the operation of specified sections of this chapter is in the best interests of the cotton industry and the state. If the secretary makes that determination, the secretary may establish a committee to advise the secretary. The committee shall be comprised of cotton growers, handlers of whole cottonseed, handlers of raw cotton fiber, and representatives of cotton ginning organizations.
If the provisions of this chapter become operative as described in paragraphs (1) and (2) of subdivision (a), the department shall post this fact on its Internet Web site.
The following sections of this chapter shall remain operative and shall be administered by the secretary:
Section 52893 as it relates to certified cottonseed.
Section 52901 as it relates to certified cottonseed and colored cotton.
Section 52981 as it relates to colored cotton.
The secretary shall not be required to administer this article or any provisions of this chapter that are operative pursuant to Sections 52991 and 52992 unless the secretary determines that there are sufficient funds remaining in the Department of Food and Agriculture Fund that were deposited and authorized to be expended for the purposes of this chapter, or from other sources, including the California cotton industry, to pay the costs incurred by the secretary.
CHAPTER 5. Nursery Stock Grades and Standards [53301. - 53564.]
ARTICLE 1. Definitions [53301. - 53313.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Advertisement” means any representation which relates to nursery stock, that is disseminated in any manner or by any means, except a representation which is on the label.
“Decorative plants” means indoor plants which are commonly grown and sold in movable containers, and which are not adapted for cultivation out of doors because of climatic conditions and natural peculiarities of habit or growth and because of the purpose of their cultivation.
“Grade size” means the designation relating to nursery stock which denotes the height, spread, caliper, dimension, condition, quality, age, methods of propagation, or means of growth.
“Labeling” means all labels, and other written, printed, or graphic representations, in any form whatsoever, which accompanies and pertains to any nursery stock.
“Nursery stock” means all kinds of nursery stock except decorative plants and seeds.
“Ornamental” means any plant which is grown for ornamental purposes, except decorative plants, dormant bulbs, tubers, roots, corms, rhizomes, and pips.
“Botanical name” means the genus and species, the genus, species, and cultivar name, or the genus and cultivar name given to a plant in accordance with the International Code of Botanical Nomenclature and the International Code of Nomenclature of Cultivated Plants.
“Cultivar name” means the cultivated variety name given to a plant in accordance with the International Code of Nomenclature of Cultivated Plants, without regard to whether that plant is selected from a wild or cultivated population or produced through hybridization.
“Blend” means a combination of the same kinds of nursery stock.
“Mixture” means a combination of two or more kinds of nursery stock.
“Sod” means grassy surface soil nursery stock held together by matted roots of the grass.
“Turf” means grassy surface soil nursery stock consisting of grass cultivars, mixtures or blends of grass cultivars, and dichondra for use in residential and commercial landscapes.
ARTICLE 2. General Provisions [53331. - 53332.]
The Legislature hereby declares that by making any additions to or amendments of this chapter it intends to formulate a system of grades and standards and minimum requirements for nursery stock to the end that purchasers of nursery stock may have adequate knowledge concerning the name and the grade size of nursery stock with relation to established standards. If, however, any provisions of, or amendment or addition to, this chapter, either as originally enacted or as amended or added to, should be held to be unconstitutional, the unconstitutionality of such provision shall not affect any other provision of this chapter.
The Legislature hereby declares that it would have enacted each section, subdivision, sentence, clause, or phrase of this chapter irrespective of the fact that one or more other sections, subdivisions, sentences, clauses, or phrases be declared unconstitutional.
ARTICLE 3. Enforcement [53361. - 53363.]
The director and the commissioners of each county of the state, their deputies and inspectors, under the supervision and control of the director, shall enforce this chapter.
For the purpose of carrying out the provisions of this chapter, all enforcing officers may enter upon any public or private premises in order to have access to nursery stock subject to this chapter and the regulations which are adopted pursuant to it.
If the director or the commissioner shall find that any person has violated any provision of this chapter, he may institute proceedings in a court of competent jurisdiction in the area in which the violation occurred, to have such person convicted of the violation, or he may file with the district attorney such evidence that may be deemed necessary.
ARTICLE 4. Regulations [53391. - 53392.]
The director may adopt regulations which may be necessary to carry into effect the purposes of this chapter and each section of it, and may issue in relation to this chapter explanatory data and charts.
The director by regulations may provide for grade sizes of the different kinds of nursery stock, and may provide that nursery stock shall be labeled with grade sizes which are established by such regulations. The director may make such other regulations as are necessary to carry out the provisions of this chapter.
ARTICLE 5. Warning Tags or Notices [53421. - 53425.]
The director or the commissioner may issue and enforce a written or printed warning tag or notice to the owner or custodian of any lot of nursery stock which he finds is in violation of any provision of this chapter, which shall prohibit movement of such nursery stock until such officer has evidence that the law has been complied with. Upon compliance such order shall be removed.
It is unlawful for any person to move or otherwise dispose of any lot of nursery stock which is held under a warning tag or notice except with the permission of the director or the commissioner and for the purpose specified.
The owner or custodian of nursery stock which is held under a warning tag or notice shall, upon demand, have the right of a hearing before the director or the commissioner as to the justification of any such order, and may appeal to the director from any order of the commissioner which is made pursuant to this article.
This article shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other provisions of this chapter.
Any decision of the director pursuant to this article is subject to review by any court of competent jurisdiction.
ARTICLE 6. Standards [53451. - 53452.]
Nursery stock which is sold shall comply with all of the following requirements:
It shall be living stock and shall not be dead, or in a dying condition.
It shall not be seriously broken, frozen, or damaged.
It shall not be abnormally potbound.
Deciduous fruit and nut trees which are sold shall be free from any of the following defects:
Twisted, crossed, frosted, broken, or other defective roots.
Broken grafts.
Other deformations and defects which would interfere with the normal and proper development of such trees after planting.
ARTICLE 7. Labeling [53481. - 53484.]
When nursery stock is sold, it shall be labeled plainly and legibly as to the grade size, if so required by regulations, and as to the correct name as follows:
The correct name for ornamentals, except roses, fruit trees, and annual or herbaceous perennial ornamental plants, shall be the botanical name.
The correct name for fruit trees shall be the recognized common name and cultivar.
The correct name for turf shall be the kind and cultivar.
The correct name for roses, annual or herbaceous perennial ornamental plants, dormant bulbs, tubers, roots, corms, rhizomes, pips, and other kinds of nursery stock shall be the cultivar name, except that the recognized common name shall be required whenever no cultivar name has been given or can be determined.
In order to identify nursery stock properly, whenever it is shipped, delivered, or transported to any purchaser, each plant shall be individually labeled as to the correct name. The director may create exceptions to this section by regulation.
Nursery stock on display for sale at retail may be labeled by a sign on any block of stock of the same kind and species. Turf shall be labeled by a sign showing the required correct name of the stock on display.
This article shall become operative January 1, 1982.
ARTICLE 8. Violations [53511. - 53512.]
It is unlawful for any person to sell, ship, deliver, or transport to any purchaser any nursery stock which is within any of the following:
Is not labeled in accordance with the provisions of this chapter or the regulations of the director.
Has false or misleading labeling, or pertaining to which there has been a false or misleading advertisement.
Is represented to be certified or registered nursery stock unless it has been produced and labeled in accordance with the procedures and in compliance with the rules and regulations of an official agency.
This section does not apply to any common carrier in respect to any nursery stock which is transported or delivered for transportation in the ordinary course of its business as a carrier.
It is unlawful for any person to do any of the following:
Detach, alter, deface, or destroy any label, warning tag, or notice which is provided for in this chapter or in the regulations which are adopted pursuant to it, or alter or substitute nursery stock, in a manner that may defeat the purpose of this chapter.
Disseminate any false or misleading advertisement concerning nursery stock in any manner or by any means.
Hinder or obstruct in any way any authorized person in the performance of his duties under this chapter.
Fail to comply with a warning tag or notice.
ARTICLE 9. Penalties [53541. - 53541.]
The violation of any provision of this chapter is a misdemeanor and punishable by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or by imprisonment in the county jail for not more than six months, or by both fine and imprisonment.
ARTICLE 10. Abatement [53561. - 53564.]
Any lot of nursery stock which does not comply with the provisions of this chapter is a public nuisance and shall be subject to seizure on complaint of the director or the commissioner to a court of competent jurisdiction in the area in which the nursery stock is located.
The district attorney of the county in which any such nuisance is found, at the request of the director or the commissioner, shall maintain, in the name of the people of the State of California, a civil action to abate and prevent such nuisance. Upon judgment and by order of the court, such nuisance shall be condemned and destroyed in the manner directed by the court, or relabeled, or reconditioned, or released upon such conditions as the court in its discretion may impose to insure the nuisance will be abated.
If the owner fails to comply with the order of the court within the time specified in the order, the court may order that such nursery stock be forthwith destroyed or the nuisance otherwise abated as set forth in such order.
A proceeding pursuant to this article if the value of the property is thirty-five thousand dollars ($35,000) or less is a limited civil case.
DIVISION 20. PROCESSORS, STORERS, DEALERS, AND DISTRIBUTORS OF AGRICULTURAL PRODUCTS [54001. - 57700.]
CHAPTER 1. Nonprofit Cooperative Associations [54001. - 54294.]
ARTICLE 1. Definitions [54001. - 54004.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Association” means any corporation which is organized pursuant to this chapter. An association shall be deemed incorporated pursuant to this chapter, or organized pursuant to this chapter and shall be deemed a producer of a product within the meaning of this chapter, if it is functioning under, or is subject to, the provisions of this chapter, irrespective of whether it was originally incorporated pursuant to such provisions or was incorporated under other provisions.
“Member” includes members of associations without capital stock and holders of common stock in associations which are organized with shares of stock.
“Product” includes any horticultural, viticultural, aquacultural, forestry, dairy, livestock, poultry, bee, or farm product.
ARTICLE 2. General Provisions [54031. - 54042.]
The purpose of this chapter is to do all of the following:
Promote, foster, and encourage the intelligent and orderly marketing of agricultural products through cooperation.
Eliminate speculation and waste.
Make the distribution of agricultural products between producer and consumer as direct as can be efficiently done.
Stabilize the marketing of agricultural products.
The following are all here recognized:
Agriculture is characterized by individual production in contrast to the group or factory system that characterizes other forms of individual production.
The ordinary form of corporate organization permits industrial groups to combine for the purpose of group production and the ensuing group marketing, and the public has an interest in permitting farmers to bring their industry to the high degree of efficiency and merchandising skill evidenced in the manufacturing industries.
The public interest urgently needs to prevent the migration from the farm to the city in order to keep up farm production and to preserve the agricultural supply of the nation.
The public interest demands that the farmer be encouraged to attain a superior and more direct system of marketing in the substitution of merchandising for the blind, unscientific, and speculative selling of crops.
Associations which are organized pursuant to this chapter are “nonprofit,” since they are not organized to make profit for themselves, as such, or for their members, as such, but only for their members as producers.
Any provisions of law which are in conflict with this chapter do not apply to any association which is provided for in this chapter.
Any exemption under any existing law which applies to any agricultural product in the possession, or under the control, of the individual producer, shall apply similarly and completely to such product which is delivered by its farmer members that are in the possession, or under the control, of the association.
A person, firm, corporation, or association, that is hereafter organized or doing business in this state, may not use the word “cooperative” as part of its corporate name or other business name or title for producers’ cooperative marketing activities, unless it has complied with this chapter or is otherwise authorized by Chapter 22 (commencing with Section 26220) of Division 10 of the Business and Professions Code.
Any corporation or association which is organized pursuant to previously existing statutes for the purpose of cooperatively marketing products as defined in this chapter or under Title 23 (commencing with Section 653aa), Part 4, Division 1 of the Civil Code shall be deemed to be organized and existing pursuant to, and by virtue of, this chapter, and all of the provisions of this chapter, and any of the restrictions and benefits of such provisions, shall apply to such corporation.
Any association which is organized pursuant to this chapter is not any of the following:
A conspiracy, a combination in restraint of trade, or an illegal monopoly.
An attempt to lessen competition, to fix prices arbitrarily, or to create a combination or pool in violation of any law of this state.
The marketing contracts and agreements between an association which is organized pursuant to this chapter and its members and any agreements authorized in this chapter are not illegal, in restraint of trade, or contrary to any statute which is enacted against pooling or combinations.
The General Corporation Law (Division 1 (commencing with Section 100) of Title 1 of the Corporations Code) as added by Chapter 682 of the Statutes of 1975 and as heretofore or hereinafter amended and all powers and rights under such law applies to each association which is organized pursuant to this chapter, except where such provisions are in conflict with or inconsistent with the express provisions of this chapter. For the purpose of associations organized without shares of stock, the members shall be deemed to be “shareholders” as the term is used in the General Corporation Law.
Subject to subdivision (c), Chapter 7 (commencing with Section 1500) of Title 10 of Part 3 of the Code of Civil Procedure does not apply to any proprietary interest in an association organized in accordance with this chapter. Any proprietary interest that would otherwise escheat to the state pursuant to Chapter 7 (commencing with Section 1500) of Title 10 of Part 3 of the Code of Civil Procedure shall instead become the property of the association.
This section shall apply to all proprietary interests which as of January 1, 1988, have not yet been paid or delivered to the Controller pursuant to the provisions of Chapter 7 (commencing with Section 1500) of Title 10 of Part 3 of the Code of Civil Procedure.
Notwithstanding subdivision (a), no proprietary interest shall become the property of the association under this section unless all of the following requirements are satisfied:
At least 60 days prior notice of the proposed transfer of the proprietary interest to the association is given to the affected member by first-class or certified mail to the last address of the member shown on the association’s records, and by publication in a newspaper of general circulation in the county in which the member last resided as shown on the association’s records. Notice given in that manner constitutes actual notice.
No written notice objecting to the transfer is received by the association from the affected member or, if the member is deceased, from the member’s heirs or the executor or executrix of the estate, prior to the date of the proposed transfer.
“Proprietary interest” means and includes any membership, membership certificate, membership share, share certificate, or equity or dividend certificate of any class representing a proprietary interest in, and issued by, the association together with all accrued and unpaid earnings, dividends, and patronage distributions relating thereto.
An association organized pursuant to this chapter may request the board of supervisors of the county in which the association’s principal place of business is located to issue a certificate stating that the association meets the requirements of subdivision (b). When the certificate is provided by the board of supervisors to the association, the Franchise Tax Board shall exempt the association from the minimum franchise tax as provided in paragraph (2) of subdivision (c) of Section 23153 of the Revenue and Taxation Code.
The board of supervisors shall issue a certificate if all of the following conditions are met:
The association is located in an economically distressed area.
At least 90 percent of the association’s members are, or have been, within the previous 12 months unemployed or dependent on public social services for their income.
The request is made during the association’s first income year.
The certificate issued by the board of supervisors shall be retained by the association. The association shall forward a copy of the certificate to the Franchise Tax Board upon request.
As used in this section, “economically distressed area” means a county in which the unemployment rate is either 9 percent, or 2 percent above the statewide average, whichever is greater; or in which 8 percent of the residents are dependent on public social services for their income, or 2 percent more of the residents than the statewide average are dependent on public social services for their income, whichever is greater.
ARTICLE 3. Purposes [54061. - 54061.]
Three or more natural persons, a majority of whom are residents of this state, who are engaged in the production of any product, may form an association pursuant to this chapter for the purpose of engaging in any activity in connection with any of the following:
The production, marketing, or selling of the products of its members.
The harvesting, preserving, drying, processing, canning, packing, grading, storing, handling, shipping, or utilization of any product of its members, or the manufacturing or making of the byproducts of any product of its members.
The manufacturing, selling, or supplying to its members of machinery, equipment or supplies.
The financing of the activities which are specified by this section.
Any one or more of the activities which are specified in this section.
ARTICLE 4. Articles of Incorporation [54081. - 54083.]
The articles of incorporation of the association shall show that the signers of the articles of incorporation are engaged in the production of products, and that they propose to incorporate an association pursuant to this chapter, and shall state all of the following:
The name of the association.
The purposes for which it is formed.
The county where the principal office for the transaction of business of the association is to be located.
The number of directors of the association, which shall not be less than three, and the names and addresses of the persons who are to serve as first directors. If it is desired that the first directors shall serve for terms of different length, the term for which each person so named shall serve shall also be stated.
If organized without shares of stock, whether the voting power and the property rights and interest of each member are equal or unequal. If voting power and property rights and interest of each member are unequal, the general rule or rules which are applicable to all members by which the voting power and the property rights and interests, respectively, of each member may be and are determined and fixed shall also be stated.
If organized with shares of stock, the number of shares which may be issued and if the shares are to have a par value, the par value of each share, and the aggregate par value of all shares. If the shares are to be without par value it shall be so stated.
If the shares of stock are to be classified, a description of the classes of shares and a statement of the number of shares of each kind or class and the nature and extent of the preferences, rights, privileges, and restrictions which are granted to or imposed upon the holders of the respective classes of stock.
Except as to the matters and things so stated, no distinction shall exist between the classes of stock or the holders of them. One class of stock shall always be known as common stock and voting power may be restricted to holders of common stock.
Articles of incorporation shall be signed, acknowledged, and filed in the manner which is prescribed by the general laws of this state for domestic corporations.
The articles of incorporation of any association may be amended in the manner and for the purposes which are authorized by the General Corporation Law, Division 1 (commencing with Section 100), Title 1 of the Corporations Code.
ARTICLE 5. Bylaws [54111. - 54122.]
Each association shall, within 30 days after its incorporation, adopt for its government and management, a code of bylaws, not inconsistent with this chapter. The vote or written assent of shareholders or members that hold at least a majority of the voting power is necessary to adopt such bylaws and is effectual to repeal or amend any bylaws, or to adopt additional bylaws.
The power to repeal and amend the bylaws, and adopt new bylaws, may, by a similar vote, or similar written assent, be delegated to the board of directors, which authority may, by a similar vote, or similar written assent, be revoked.
The bylaws may prescribe the time, place, and manner of calling and conducting its meetings. Meetings of members or stockholders shall be held at the place as provided in the bylaws; and if no provision be made, then in the city where the principal place of business is located at a place designated by the board of directors. Meetings of the board of directors may be held at any place within or without the state which is fixed by a quorum of the board of directors unless otherwise provided in the articles of incorporation or bylaws.
The bylaws may prescribe the number of stockholders or members which constitutes a quorum.
The bylaws may prescribe the right of members or stockholders to vote by proxy or by mail or both, and the conditions, manner, form, and effects of such votes; the right of members or stockholders to cumulate their votes and the prohibition, if desired, of cumulative voting.
The bylaws may prescribe the number of directors which constitutes a quorum.
The bylaws may prescribe the qualifications, compensation, duties, and term of office of directors and officers and the time of their election.
The number of directors set forth in the articles of incorporation shall be either a fixed number or a variable number. If a fixed number, it shall not be less than three, and if a variable number, the stated minimum shall not be less than three and the stated maximum shall not be greater than two times the stated minimum minus one.
The number of directors may also be set forth in the bylaws either as a fixed number or as a variable number subject to the same limitations as in subdivision (b). After shares have been issued or members have been admitted, any adoption or amendment of such bylaw provision shall be approved by the outstanding shares as provided in Section 152 of the Corporations Code.
In the event of an inconsistency between an article provision referred to in subdivision (b) and a bylaw provision referred to in subdivision (c), the provision more recently adopted or amended shall prevail.
If a variable number of directors is set forth in the articles of incorporation or the bylaws, the exact number of directors shall be fixed, within the limits specified, by approval of the board of directors or the shareholders as provided in Section 153 of the Corporations Code in the manner designated in the bylaws.
The bylaws may prescribe penalties for violations of the bylaws.
The bylaws may prescribe the amount of entrance, organization, and membership fees, if any; the manner and method of collection of such fees; and the purposes for which they may be used.
The bylaws may prescribe the amount which each member or stockholder shall be required to pay annually, or from time to time, if at all, to carry on the business of the association; the charge, if any, to be paid by each member or stockholder for services which are rendered by the association to him and the time of payment and the manner of collection; and the marketing contract between the association and its members or stockholders which every member or stockholder may be required to sign.
The bylaws may prescribe the amount of any dividends that may be declared on the stock or membership capital. To the extent that dividends are payable out of the excess of association income over association expenses attributable to business transacted with or for members, dividends shall not exceed 8 percent per annum. Dividends are in the nature of interest, and do not affect the nonprofit character of any association that is organized pursuant to this chapter.
The bylaws may prescribe the number and qualification of members or stockholders of the association and the conditions precedent to membership or ownership of common stock; the method, time, and manner of permitting members to withdraw or the holders of common stock to transfer their stock; the manner of assignment and transfer of the interest of members, and of the shares of common stock; the conditions upon which, and time when, membership of any member shall cease; the automatic supsension of the rights of a member when he ceases to be eligible to membership in the association; and the mode, manner, and effect of the expulsion of a member.
The bylaws may prescribe the manner of determining the value of a member’s interest and provision for its purchase by the association upon the death or withdrawal of a member or upon the expulsion of a member or forfeiture of his membership, or at the option of the association, the purchase at a price fixed by conclusive appraisal by the board of directors; and the conditions and terms for the repurchase by the association from its stockholders of their stock upon their disqualification as stockholders. In case of the expulsion of a member, and where the bylaws do not provide any procedure or penalty, the board of directors shall equitably and conclusively appraise his property interest in the association and shall fix the amount of his property interest in money, which shall be paid to him within one year after such expulsion.
ARTICLE 6. Directors and Management [54141. - 54150.]
The affairs of the association shall be managed by a board of not less than three directors who are elected by the members or stockholders.
The bylaws may provide that the territory in which the association has members shall be divided into districts and that directors shall be elected from the several districts. In any such case, the bylaws shall specify the number of directors to be elected by each district, the manner and method of reapportioning the directors and of redistricting the territory covered by the association.
The bylaws may provide that primary elections shall be held to nominate directors. If the bylaws provide that the territory in which the association has members shall be divided into districts, the bylaws may also provide that the results of the primary elections in the various districts shall be final and shall be ratified at the annual meeting of the association.
The bylaws may provide that the territory in which the association has members shall be divided into districts, and that the directors shall be elected by representatives or advisers, who themselves have been elected by the members or stockholders from the several territorial districts. In any such case, the bylaws shall specify the number of representatives or advisers to be elected by each district, the manner and method of reapportioning the representatives or advisers and of redistricting the territory which is covered by the association.
The bylaws may provide that one or more directors may be chosen by any public official or commission or by the other directors selected by the members. Such director shall represent primarily the interest of the general public in such associations. The directors so chosen shall have the same powers and rights as other directors. Such directors shall not number more than one-fifth of the entire number of directors.
The bylaws may provide for an executive committee and may allot to such committee all the functions and powers of the board of directors, subject to the general direction and control of the board.
An association may provide a fair remuneration for the time which is actually spent by its officers and directors in its service and for the service of the members of its executive committee.
If a vacancy on the board of directors occurs except by expiration of term, the remaining members of the board, by a majority vote, shall fill the vacancy unless the bylaws provide for an election of directors by districts. If the bylaws provide for an election of directors by districts, the vacancy shall be filled by the election of a director from the district in which the vacancy occurs or the board of directors may call a special meeting of the members or stockholders in that district to fill the vacancy.
The directors shall elect a president, one or more vice presidents, a secretary, a treasurer, and such other officers as may be prescribed by the bylaws. Any two or more offices, except those of president and secretary, may be held by the same person.
The treasurer may be a bank or any depository and as such, shall not be considered as an officer, but as a function of the board of directors. In such case, the secretary shall perform the usual accounting duties of the treasurer, except that the funds shall be deposited only as and where authorized by the board of directors.
Any member may bring charges against an officer or director by filing them in writing with the secretary of the association, together with a petition which is signed by five percent of the members, which requests the removal of the officer or director in question. The removal shall be voted upon at the next regular or special meeting of the association and, by a vote of a majority of the members, the association may remove the officer or director and fill the vacancy. The director or officer, against whom such charges have been brought, shall be informed in writing of the charges previous to the meeting and shall have an opportunity at the meeting to be heard in person or by counsel and to present witnesses. The person bringing the charges against him shall have the same opportunity.
If the bylaws provide for election of directors by districts with primary elections in each district, the petition for removal of a director shall be signed by 20 percent of the members that reside in the district from which such director was elected. The board of directors shall call a special meeting of the members that reside in that district to consider the removal of the director; and by a vote of the majority of the members of that district, the director in question shall be removed from office.
ARTICLE 7. Powers [54171. - 54182.]
An association may engage in any activity in connection with the marketing, selling, preserving, harvesting, drying, processing, manufacturing, canning, packing, grading, storing, handling, or utilization of any product which is produced or delivered to it by its members; or the manufacturing or marketing of the byproducts of any such product; or any activity in connection with the purchase, hiring, or use by its members of supplies, machinery, or equipment, or in the financing of any such activities; or in any one or more of the activities which are specified in this section.
An association may borrow without limitation as to amount of corporate indebtedness or liability and may make advances to members.
An association may purchase or otherwise acquire, hold, own, and exercise all rights of ownership in, sell, transfer, pledge, or guarantee the payment of dividends or interest on, or the retirement or redemption of, shares of the capital stock or bonds of any corporation or association which is engaged in any related activity or in the warehousing, handling, marketing, packing, manufacturing, processing, or preparing for market of any product which is handled by the association.
An association may establish reserves and invest the funds of the reserves in bonds or in such other property as may be provided in the bylaws.
An association may buy, hold, and exercise all privileges of ownership, over such real or personal property as may be necessary or convenient for the conduct and operation of, or incidental to, any of the business of the association.
An association may levy assessments in the manner and in the amount as may be provided in its bylaws.
An association may do each and every thing which is necessary, suitable, or proper for the accomplishment of any one of the purposes, or the attainment of any one or more of the objects, which are enumerated in this article; or conducive to or expedient for the interest or benefit of the association; and contract accordingly; exercise and possess all powers, rights, and privileges which are necessary or incidental to the purposes for which the association is organized or to the activities in which it is engaged; and, in addition, any other rights, powers, and privileges which are granted by the laws of this state to ordinary corporations, except such as are inconsistent with the express provisions of this chapter; and do any such thing anywhere.
An association may use or employ any of its facilities for any purpose, provided the proceeds which arise from such use and employment shall go to reduce the cost of operation for its members. The products which are handled for, or the services, machinery, equipment, or supplies or facilities which are furnished to, nonmembers shall not, however, exceed in value the products which are handled for, or the services, merchandise, or facilities which are supplied to, members during the same period.
An association may organize, form, operate, own, control, have an interest in, own stock of, or be a member of any other corporation, with or without capital stock, which is engaged in preserving, drying, processing, canning, packing, storing, handling, shipping, utilizing, manufacturing, marketing, or selling of any product which is handled by the association, or the byproducts of any such product.
If such corporations are warehousing corporations, they may issue legal warehouse receipts to the association against the commodities which are delivered by it, or to any other person and such legal warehouse receipts shall be considered as adequate collateral to the extent of the usual and current value of the commodity which they represent. If such warehouse is licensed or licensed and bonded pursuant to the laws of this state or the United States, its warehouse receipt which is delivered to the association on any commodity of the association or its members, or delivered by the association or its members, shall not be challenged or discriminated against because of ownership or control, wholly or in part, by the association.
Any two or more corporations which are organized pursuant to this section may be merged into one such constituent corporation or consolidated into a new corporation, such merger or consolidation to be made in the manner that is prescribed by the general laws of the state which cover domestic corporations.
Any association may, upon resolution adopted by its board of directors, enter into all necessary and proper contracts and agreements and make all necessary and proper stipulations, agreements and contracts and arrangements with any other cooperative or other corporation, or association, which is formed in this or in any other state, for the cooperative and more economical carrying on of its business or any part of its business.
Any two or more associations may, by agreement between them, unite in employing and using, or may separately employ and use, the same personnel, methods, means, and agencies for carrying on and conducting their respective business.
Any association organized and operating pursuant to this chapter or pursuant to similar laws of any other state, the District of Columbia, or the United States, which acts for its members as a producer marketing or bargaining association in its dealings with a person licensed pursuant to Chapter 6 (commencing with Section 55401) or Chapter 7 (commencing with Section 56101) in connection with any product produced by its members, may, either in its own name or in the name of its members, assert all the rights of a producer under either of these chapters with respect to any of those products.
Subdivision (a) does not apply to any late charges claimed under Section 55881 on any agricultural products delivered or scheduled to be delivered prior to January 1, 1986.
ARTICLE 8. Financial Provisions [54201. - 54204.]
An association is not subject in any manner to the terms of the Corporate Securities Law, Division 1 (commencing with Section 25000), Title 4 of the Corporations Code, and any association may issue its membership certificates or stock or other securities as provided in this chapter without the necessity of any qualification under that law.
If an association issues nonpar value stock, the issuance of such stock shall be governed by the terms of all general laws which cover the issuance of nonpar value stock in domestic corporations.
If an association with preferred shares of stock purchases the stock or any property, or any interest in any property of any person, it may discharge the obligations which are so incurred, wholly or in part, by exchanging for the acquired interest, shares of its preferred stock to an amount which at par value would equal the fair market value of the stock or interest so purchased, as determined by the board of directors. In that case the transfer to the association of the stock or interest which is purchased is equivalent to payment in cash for the shares of stock which are issued.
The board of directors of every association shall cause to be sent to the members of the association not later than 120 days after the close of the fiscal or calendar year an annual report of the operations of the association, unless such report is expressly dispensed with in the bylaws.
If required by the bylaws, interim reports of the operations of the association for the three month, six month, or nine month periods of the current fiscal year of the association shall be furnished to the members of the association.
Such annual report and any such interim reports shall include a balance sheet as of such closing date. Such financial statement shall be prepared from, and be in accordance with, the books. It shall be prepared in a form which is sanctioned by sound accounting practice for the association or approved by a duly certified public accountant or a public accountant.
ARTICLE 9. Members [54231. - 54239.]
Under the terms and conditions which are prescribed in the bylaws adopted by it, an association may admit as members or issue common stock to only such persons as are engaged in the production of any product which is to be handled by or through the association, or that use or employ any service or facility offered by the association on, or in connection with, land which is used for the production of any product, including the lessees and tenants of land which is used for the production of such product and any lessors and landlords that receive as rent all or part of the crop which is raised on the leased premises.
If a member of a nonstock association is other than a natural person, such member may be represented by any individual, associate, officer, or manager or member of it, who is duly authorized in writing.
Any association may become a member or stockholder of any other association.
If a member of an association which is established without shares of stock has paid his membership fee in full, he shall receive a certificate of membership.
An association shall not issue a certificate for stock to a member until it has been fully paid for. The promissory notes of the members may be accepted by the association as full or partial payment. The association shall hold the stock as security for the payment of the note, but such retention as security does not affect the member’s right to vote.
An association, in its bylaws, may limit the amount of common stock which any member may own.
The bylaws shall prohibit the transfer of the common stock or membership certificates of the associations to any person that is not qualified to be a shareholder or member as specified in this chapter. Such restrictions shall be printed upon every certificate of stock or membership which is subject to them.
The association may, at any time, as specified in the bylaws, except when the debts of the association exceed 50 percent of its assets, buy in or purchase its common stock at the book value of the common stock, as conclusively determined by the board of directors, and pay for it in cash within one year thereafter.
A member or stockholder is not liable for the debts of the association to an amount which exceeds the sum which remains unpaid on his membership fee or his subscription to the capital stock, including any unpaid balance on any promissory note which is given in payment of the membership fee or the subscription to the capital stock.
ARTICLE 10. Marketing Contracts [54261. - 54266.]
The association and its members may make and execute marketing contracts which require the members to sell, for any period of time, but not over 15 years, all or any specified part of any product or specified commodity exclusively to or through the association, or any facilities which are created by the association. If they contract a sale to the association, title to the product passes absolutely and unreservedly, except for recorded liens, to the association upon delivery or at any other specified time which is expressly and definitely agreed in the contract.
The contract may provide that the association may sell or resell any product that is delivered by its members, with or without taking title to that product, and pay over to its members, the resale price, after deducting all of the following:
Necessary selling, overhead, and other costs and expenses.
Proper reserves for retiring stock, if any.
Dividends not exceeding 8 percent per annum upon stock or membership capital.
Notwithstanding any provisions of the Civil Code, a contract which is entered into by a member or stockholder of an association which provides for the delivery to such association of any product which is produced or acquired by the member or stockholder, may be specifically enforced by the association to secure the delivery to it of such product.
The bylaws or the marketing contract may fix, as liquidated damages, specific sums to be paid by the member or stockholder to the association upon the breach by him of any provision of the marketing contract regarding the sale or delivery or withholding of any product and may provide that the member will pay all costs, premiums for bonds, expenses, and fees, if any action is brought upon the contract by the association. Such provisions are valid and enforceable in the courts of this state. The clauses which provide for liquidated damages are enforceable as such and shall not be regarded as penalties.
If there is a breach or threatened breach of such marketing contract by a member, the association shall be entitled to an injunction to prevent the further breach of the contract and to a decree of specific performance of the contract. Pending the adjudication of such an action and upon filing a verified complaint which shows the breach or threatened breach, and upon filing a sufficient bond, the association shall be entitled to a temporary restraining order and preliminary injunction against the member.
In any action upon such marketing agreements, it shall be conclusively presumed that a landowner or landlord or lessor is able to control the delivery of any product which is produced on his land by tenants or others, whose tenancy or possession or work on such land, or the terms of whose tenancy or possession or labor on such land, were created or changed after execution by the landowner, landlord, or lessor of such a marketing agreement. In such actions, the remedies for nondelivery or breach which are provided by this article shall lie and be enforceable against such landowner, landlord, or lessor.
ARTICLE 11. Reorganization of Corporations Organized Pursuant to Other Laws [54291. - 54294.]
A corporation that is organized or existing pursuant to any law, except Part 12 (commencing with Section 14550) of Division 3 of Title 1 of the Corporations Code, may be brought under the provisions of this chapter by amending its articles of incorporation, in the manner that is prescribed by the general corporation laws, to conform to this chapter. If a corporation amends its articles of incorporation to conform to this chapter, it shall be deemed to be organized and existing pursuant to, entitled to the benefit of, and subject to, this chapter for all purposes and as fully as though it had been originally organized pursuant to this chapter.
Articles of incorporation shall be deemed to conform to this chapter within the meaning of Section 54291 in both of the following cases:
It is provided or declared in the articles of incorporation, in substance, regardless of form, that the corporation is organized and exists as a nonprofit cooperative corporation for the purposes which are provided for in, or permitted by, this chapter, or one or more of such purposes.
It clearly appears from the articles of incorporation that the corporation desires to be subject to, and to be organized, exist, and function pursuant to this chapter.
If the amended articles conform, as provided in Section 54292, provisions in the articles of incorporation that appeared in the original articles or some previous amended articles, are ineffective if, and to the extent that, they are inapplicable to, or inconsistent with, this chapter.
This article applies retrospectively as well as prospectively, and may be availed of by a corporation regardless of the time of incorporation, whether prior or subsequent to the adoption of this article, and shall apply to amendments to articles of incorporation whether made prior or subsequent to the adoption of this article, and all amendments made prior to the adoption of this article shall be effective and valid to the same extent as though made subsequent to the adoption of this article.
CHAPTER 2. Cooperative Bargaining Associations [54401. - 54463.]
ARTICLE 1. Definitions and General Provisions [54401. - 54405.]
As used in this chapter, “cooperative bargaining association” means a farmer association which is organized and functioning pursuant to Chapter 1 (commencing with Section 54001) of this division, for the purpose of group bargaining between its producer members and the first handler or processor, with respect to the sale of any agricultural commodity except milk, cotton, or cottonseed.
It is the public policy of the state to establish and support the right of any farmer to join voluntarily, belong to and freely participate in cooperative bargaining associations. Interference with producer rights set forth in this chapter, including the obligation of processors to negotiate and bargain with cooperative bargaining associations, is an unfair trade practice.
For the purpose of enforcing this chapter, the director may receive complaints from producers against any processor, handler, distributor, or any agent of these persons, or from processors, handlers, distributors, or any agent of these persons against a cooperative bargaining association or any agent of an association, with respect to violations of the unfair trade practices which are specified in Section 54431.
Upon verification of the complaint, the director shall, or upon the director’s own motion may, make any and all necessary investigations, examinations, or inspections of any transaction which involves a suspected violation of any provision of this chapter.
The director may thereafter take action against the processor, handler, distributor, or any agent of these persons, or the cooperative bargaining association or any agent of an association, in accordance with applicable provisions of this chapter.
If, upon the investigation conducted under Section 54404, the director has reasonable cause to believe that the person charged has violated Section 54431, the director shall issue and cause to be served upon the person so charged a complaint stating the charges. The complaint shall summon the named person to a hearing before the director, which he or she shall call at a specific time and place.
At the hearing called pursuant to Section 54404.1, the director may do all the following:
Administer oaths and take testimony.
Issue subpoenas requiring the attendance of witnesses before him or her, together with any books, memoranda, papers, and other documents, articles, or instruments that may be pertinent to the controversy as set forth in the complaint.
Compel the disclosure by the witnesses of all facts known to them that relate to the controversy.
The procedure for holding the hearing pursuant to Section 54404.2 is identical to hearings held pursuant to Article 13 (commencing with Section 55781) of Chapter 6.
Notwithstanding Section 54404.1, if the director receives a verified complaint that a processor, handler, distributor, or any agent of any such person or a cooperative bargaining association or any agent of an association has violated subdivision (e) of Section 54431, the director shall conduct a hearing within 14 days of receiving the complaint. The director shall issue a notice of the hearing not less than five days prior to the commencement of the hearing. The director may, but is not required to, make any investigation in addition to the hearing. The director shall announce his or her decision on the complaint within five days after the conclusion of the hearing and may take any action that is authorized by this section.
If the director determines that the person against whom the complaint was filed has violated subdivision (e) of Section 54431, the director may issue an order fashioned in a manner so as to expeditiously require that person to comply with the requirements of this chapter. If the person thereafter disobeys the order, the director, represented by the Attorney General, shall apply to the Superior Court of the County of Sacramento in order to obtain a court order requiring the person to obey the order of the director. The action shall be handled in an expeditious manner by the court and given calendar preference.
The costs of the hearing held pursuant to subdivision (a) shall be assessed by the director and paid for by the party filing the complaint if the hearing results in a finding that no violation occurred. The costs of the hearing shall be paid for by the party against whom the complaint was filed if the hearing results in a finding that a violation had occurred.
The hearing held pursuant to subdivision (a) shall be held in as expeditious a manner as possible under Sections 54404.2 and 54404.3. The hearing officer shall use his or her best efforts to ensure that the hearing will be conducted as quickly as possible consistent with the requirements of due process and this chapter.
The record from the hearing held pursuant to subdivision (a) may be introduced by either party to that hearing at a hearing held pursuant to Section 54404. 1.
The director may bring an action to enjoin the violation or threatened violation of any provision of this chapter in the superior court of the county in which such violation occurred or is about to occur. Actions against different defendants may be consolidated, in the discretion of the court, if the alleged violations are of the same provision, have occurred in the same or an adjoining county, relate to the same agricultural commodity, occurred in the same production season, and such consolidation can be done without prejudice to a substantial right of any defendant. Any proceedings which are brought pursuant to this section shall be governed in all other respects by Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure.
ARTICLE 2. Unfair Trade Practices [54431. - 54435.]
It is an unfair trade practice, and unlawful, for any processor, handler, distributor, or agent of any such person, or, with regard to subdivisions (d), (e), and (f), for any cooperative bargaining association or any agent of an association, or for any other person to do any of the following:
Interfere with, restrain, coerce, or boycott producers in the exercise of the rights which are guaranteed pursuant to Section 54402.
Discriminate against any producer with respect to price or other terms of purchase of any raw agricultural commodity, by reason of the producer’s membership in, or contract with, any cooperative bargaining association.
Pay or loan money, or give any other thing of value, to a producer as an inducement or reward for refusing or ceasing to belong to, or for breaching one’s membership agreement in, a cooperative bargaining association.
Maliciously or knowingly give false reports about the finances, management, or activities of any person subject to this chapter.
Refuse to negotiate or bargain, including refusing to comply with the procedure prescribed in Article 3.5 (commencing with Section 54451), at reasonable times and for reasonable periods of time with a genuine desire to reach agreement and a serious attempt to resolve differences with a cooperative bargaining association for price, terms of sale, compensation for commodities produced under contract, and other contract provisions relative to any commodity which a cooperative bargaining association represents, or refuse to negotiate or bargain, including refusing to comply with the procedure prescribed in Article 3.5 (commencing with Section 54451), at reasonable times and for reasonable periods of time with a genuine desire to reach agreement and a serious attempt to resolve differences with a processor for price, terms of sale, compensation for commodities produced under contract, and other contract provisions relative to any commodity which the cooperative bargaining association represents. This subdivision does not apply to fresh grapes purchased for wine. Also, this subdivision is limited to processors, handlers, or agents of any of those persons who deal in fruits, nuts, or vegetables for processing and a cooperative bargaining association which meets all of the following:
That, under the articles of incorporation or bylaws of the cooperative bargaining association, the association is producer owned and controlled exclusively by producers.
The cooperative bargaining association has enforceable contracts with its members.
The cooperative bargaining association has financial resources and management reasonably sufficient to accomplish the purpose for which it was organized.
The cooperative bargaining association represents, through its own members, a sufficient number of producers or a sufficient quantity of any particular commodity, or both, to make it an effective agent for producers in bargaining with handlers.
One of the functions of the cooperative bargaining association is acting as principal or agent for its producer members to negotiate or bargain with handlers for prices, terms of sale, compensation for commodities produced under contract and other terms of contracts with respect to the production, sale, and marketing of their commodities.
Refuse to negotiate or bargain for price, terms of sale, compensation for commodities produced under contract, and other contract provisions relative to any commodity which a cooperative bargaining association represents. This subdivision only applies to a cooperative association whose members produce either fresh grapes purchased for wine or whose members produce any other commodity not specified in subdivision (e) and which meets all of the following:
Under the articles of incorporation or bylaws of the cooperative bargaining association, the association is producer owned and controlled exclusively by producers.
The cooperative bargaining association has enforceable contracts with its members.
The cooperative bargaining association has financial resources and management reasonably sufficient to accomplish the purpose for which it was organized.
The cooperative bargaining association represents, through its own members, a sufficient number of producers or a sufficient quantity of any particular commodity, or both, to make it an effective agent for producers in bargaining with handlers.
One of the functions of the cooperative bargaining association is acting as principal or agent for its producer members to negotiate or bargain with handlers for prices, terms of sale, compensation for commodities produced under contract, and other terms of contracts with respect to the production, sale, and marketing of their commodity.
The provisions of subdivision (e) of Section 54431 only apply to any processor, handler, distributor, or agent of any such person, who refuses to negotiate or bargain, as specified by such provisions, with a cooperative bargaining association which represents producers with whom such a processor, handler, distributor, or agent of any such person, has had a prior course of dealing.
For purposes of this section, “prior course of dealing” means that the processor, handler, distributor, or agent of any such person has purchased in any two of the immediate preceding five years a commodity from a producer which a cooperative bargaining association represents. However, a processor, handler, distributor, or agent of any such person is subject to subdivision (e) of Section 54431 if that person has newly gone into business in California by locating in this state from another state or country, by being created from other business entities which had a prior course of dealing with a bargaining association, or by being newly created and utilizing substantially the same processing facilities as a prior processor which itself was subject to subdivision (e) of Section 54431.
The provisions of subdivision (e) of Section 54431 shall not apply to cooperative associations in respect to business done with its own membership.
Nothing in subdivision (e) or (f) of Section 54431 requires any processor, handler, distributor, or agent of any such person, to negotiate over any specific period of time, or to agree upon price, terms of sale, compensation for commodities produced under contract, and other contract provisions relative to any commodity which any cooperative bargaining association represents. However, nothing in this section relieves the parties from the requirement to negotiate and bargain pursuant to subdivision (e) or (f) of Section 54431 or to comply with the procedures prescribed in Article 3.5 (commencing with Section 54451) if applicable.
ARTICLE 3. Annual Report [54442. - 54447.]
To aid in preparation of the report required under this chapter, the secretary shall establish an advisory committee consisting of the following persons:
Six representatives of cooperative bargaining associations from names submitted by cooperative bargaining associations, two of whom shall be appointed by the Governor, two of whom shall be appointed by the Speaker of the Assembly, and two of whom shall be appointed by the Senate Committee on Rules.
Six representatives of processors from names submitted by processors, two of whom shall be appointed by the Governor, two of whom shall be appointed by the Speaker of the Assembly, and two of whom shall be appointed by the Senate Committee on Rules.
The members of the advisory committee shall be reimbursed for travel expenses pursuant to the rules and regulations adopted by the Director of Human Resources pursuant to Section 19820 of the Government Code for attendance at a meeting approved by the Secretary of Food and Agriculture.
The advisory committee shall study and report on all of the following issues:
Unfair trade practices.
Licensing.
Funding.
Investigation and hearing procedures.
The need for a mechanism to resolve bargaining disputes.
Any other issues relating to this chapter.
Any recommended changes to this chapter.
The advisory committee shall meet not less than once annually.
The advisory committee shall prepare and transmit a report to the secretary at a time fixed by the secretary so as to meet his or her obligation under this article.
This article shall be construed as a continuation of former Article 3 of Chapter 2 of Division 20.
ARTICLE 3.5. Conciliation [54451. - 54458.]
The department shall order conciliation between any cooperative bargaining association and any processor subject to this chapter if it determines, after receiving a request under the procedure specified in Section 54452, that conciliation will materially assist the parties in negotiating an agreement. Either party may request at any time that conciliation be ordered.
A conciliation service shall be appointed by the department if the parties cannot agree on a conciliator.
The following procedure shall be used upon receipt by the department of a request for conciliation:
The request from one of the parties to the negotiation, referred to as the requesting party, shall be presented on a form prescribed by the department.
The requesting party shall submit, along with the request, the last offer made to the other party, referred to as the responding party, reasons for rejection of the responding party’s last offer, and an indication as to what the requesting party believes would be required to reach an agreement. A copy of the request, as well as any information required pursuant to this subdivision, shall be express mailed to the responding party on the same day that the request is submitted to the department.
On the next business day after receiving the request for conciliation, the department shall notify the responding party that a request for conciliation has been received. The responding party shall be required to respond to the department within three business days after receipt of notification that conciliation has been requested. The response from the responding party shall include the last offer made to the requesting party, reasons for rejection of the requesting party’s last offer, and an indication as to what the responding party believes would be required to reach an agreement. The responding party’s response shall be made on a form prescribed by the department. A copy of the response, as well as any information required pursuant to this subdivision, shall be express mailed to the requesting party on the same day that the response is submitted to the department.
On the same day that the responding party is notified by the department that a request for conciliation has been made, the department shall notify the conciliation service designated by the department pursuant to Section 54451.5 that conciliation may be ordered.
On the date that the department notifies the responding party that a conciliation has been requested, the department may also request additional information from either party and the department shall notify both parties of their right to use a conciliator agreed upon by the parties if the parties notify the department of their agreement before conciliation is ordered.
Both parties have three business days after the date of the request made pursuant to subdivision (e) in which to respond to the request for additional information.
Within three business days after final receipt from the parties of all information requested by the department, the department shall determine whether conciliation shall be conducted.
If conciliation is ordered, the department shall, on the day the department determines that conciliation shall be conducted, notify both parties that the conciliation will take place and direct the conciliator agreed to by the parties to commence the conciliation process in accordance with its commercial mediation rules. If the parties have not agreed upon a conciliator, the department shall appoint the conciliation service designated by the department pursuant to Section 54451.5, and direct that conciliation service to commence the conciliation process in accordance with its commercial mediation rules. However, this article prevails if there is any conflict between those rules and this article.
Confidential information disclosed to a conciliator by the parties or by any other person in the course of the conciliation shall not be divulged by the conciliator. All statements, oral or written, records, reports, or other documents received or made by a conciliator while serving in that capacity, or by any other person, shall be confidential. The conciliator shall not be compelled to divulge the information or to testify in regard to the conciliation in any proceeding or judicial forum. The parties shall maintain the confidentiality of the conciliation, and shall not rely on, or introduce as evidence in any proceeding or forum, any of the following:
Views expressed or suggestions made by any party in the course of conciliation proceedings with respect to a possible settlement of the dispute.
Admissions by any party in the course of conciliation proceedings.
Proposals made or views expressed by the conciliator.
The fact that any party in the course of conciliation proceedings had or had not indicated willingness to accept a proposal for settlement made by the conciliator or other party.
The conciliator shall perform the following duties:
Meet with the parties involved in the bargaining process in an attempt to resolve the dispute.
Participate in negotiations and have authority to offer suggestions and recommendations to resolve the dispute.
The total time allotted for conciliation shall not exceed 10 calendar days unless the conciliator feels that an additional period of five calendar days is likely to resolve the dispute. The determination of the conciliator on whether to extend the period of conciliation shall be based on the progress of negotiations during the conciliation process, the impact of a time delay on the parties, and other relevant factors.
If a settlement has not been arrived at through the conciliation process, upon the conclusion of the process and within the time requirements of subdivision (c), the conciliator shall make a final recommendation to the parties as to what he or she believes will equitably resolve the dispute and result in a negotiated settlement. Each party shall be required to respond to the other party, and to the conciliator with their position and response to the conciliator’s final recommendations.
If the dispute has not been resolved by the completion of the conciliation process, the conciliator shall file a final report with the department within three business days after the close of conciliation. The report shall include only the following:
A factual summary of the events that occurred during conciliation, including all of the following:
The dates on which conciliation occurred.
The amount of time expended in conciliation on each of those dates.
The location of the conciliation on each of those dates.
The names of the individuals present during conciliation on each of those dates.
The final proposals of each of the parties.
The response, as expressed by each party, to the other party’s final proposal.
A description of the remaining unresolved issues, as expressed by each party.
A copy of the original request and response specified in Section 54452.
All reasonable costs incurred in carrying out the conciliation prescribed in this article shall be shared equally by each party to the negotiations.
In the report submitted to the Legislature pursuant to Section 54441, the department shall include a section on this article, which shall consist of the following items:
The number of requests for conciliation.
The number of conciliation cases handled.
The number of conciliation cases reaching settlement through the process prescribed by this article.
The parties involved in conciliation.
Recommended changes to this article that would improve its effectiveness.
The report shall not include any information otherwise confidential pursuant to subdivision (b) of Section 54453.
Any person who violates any provision of this article is liable civilly for a penalty in an amount not to exceed the sum of ten thousand dollars ($10,000) for each and every violation.
ARTICLE 4. Penalties [54461. - 54463.]
The willful violation of any provision of this chapter is a misdemeanor punishable by a fine of not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) for each and every violation. This section does not apply to Article 3.5 (commencing with Section 54451).
In addition to the penalty which is provided by Section 54461, any person who violates any provision of this chapter is liable civilly for a penalty in an amount not to exceed the sum of five thousand dollars ($5,000) for each and every violation. This section does not apply to Article 3.5 (commencing with Section 54451).
In addition to any other remedies provided under this article, the director may seek to obtain injunctive relief in the proper court to require any person subject to this chapter to comply with any applicable requirement in this chapter.
CHAPTER 4. California Rice Certification Act of 2000 [55000. - 55123.]
ARTICLE 1. Declarations and Legislative Intent [55000. - 55003.]
The production and processing of rice constitutes an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens. The California rice industry has the potential to be one of the leading segments of the state’s agricultural industry. To realize this potential, there is a need to make domestic and foreign consumers aware of the nutritional value of rice, the high quality of the rice produced and processed in the state, the many varieties of rice produced and processed in the state, the intricacies of rice culture, and the versatility of rice as a part of a well balanced diet.
The program established pursuant to this chapter is essential to ensuring the consistently high quality of the rice produced, processed, or handled in the state by informing consumers, maintaining consumer confidence, and enhancing and protecting the reputation of California’s rice industry throughout the nation and around the world.
This chapter is intended to allow the rice industry to work cooperatively to maintain consumer confidence and the acceptance of rice produced, processed, and handled in the state.
There is a growing need to maintain the identity of various types of rice to satisfy increasing consumer demand for specialty rices. This demand requires providing the industry with the ability to establish the terms and conditions for the production, processing, and handling of rice in order to achieve the goal of preventing the potential for the commingling of various types of rice, and in order to prevent commingling where reconditioning is infeasible or impossible.
ARTICLE 2. Definitions [55006. - 55015.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Records” means books, records, contracts, documents, memoranda, papers, correspondence, or other data, whether in written, magnetic, or electronic form, that pertain to matters relating to this chapter.
“Certification” means certification pursuant to Article 7 (commencing with Section 55070).
“Chapter” means any provision of the California Rice Certification Act of 2000, and includes any amendments to and regulations adopted pursuant to that act.
“Characteristics of commercial impact” means characteristics that may adversely affect the marketability of rice in the event of commingling with other rice and may include, but are not limited to, those characteristics that cannot be visually identified without the aid of specialized equipment or testing, those characteristics that create a significant economic impact in their removal from commingled rice, and those characteristics whose removal from commingled rice is infeasible.
“Commission” means the California Rice Commission created pursuant to Chapter 9.5 (commencing with Section 71000) of Part 2 of Division 22.
“Committee” refers to the committee established under Section 55020.
“Department” means the Department of Food and Agriculture.
“Handle” means to engage in the business of being a handler.
“Handler” means any person engaged in this state in the business of offering for sale or selling rice.
“Person” includes any individual, partnership, limited liability company, limited liability partnership, corporation, firm, company, or any other entity doing business in California.
“Process” means to harvest, dry, mill, transport, or store rice.
“Producer” includes any person who produces rice, or causes rice to be produced.
“Rice” means all rough or “paddy” rice or milled rice (Oryza species) produced in or shipped into California, including mochi rice (sweet rice) and rice produced for seed. It does not include wild rice (Zinzania aquatica; Zinzania palustris).
“Secretary” means the Secretary of Food and Agriculture.
ARTICLE 3. Administration [55020. - 55022.]
The secretary shall appoint a committee, from nominations received from the commission, to administer Article 4 (commencing with Section 55040) and Article 5 (commencing with Section 55050), except as otherwise specified. The committee shall consist of four producers, four handlers, and one representative each of the California Crop Improvement Association, the California Warehouse Association, and the California Cooperative Rice Research Foundation. The secretary shall also appoint one member from the University of California who shall not be affiliated with the California Crop Improvement Association. If the secretary finds any of those nominated to be unacceptable, he or she shall notify the commission and request that another person be nominated. The commission shall appoint one ex officio member who shall be involved in the handling or breeding of seed, and may appoint any other ex officio members deemed reasonably necessary to implement this chapter.
A majority of the membership of the committee shall constitute a quorum of the committee. The vote of a majority of the members present at which there is a quorum shall constitute an act of the committee. The committee may continue to transact business at a meeting at which a quorum is initially present, notwithstanding the withdrawal of members, provided any action is approved by the requisite majority of the required quorum.
As a committee of the commission, the committee established pursuant to Section 55020 shall conduct itself according to the bylaws and rules of the commission.
All funds received from the assessments levied pursuant to this chapter shall be deposited in banks that the commission may designate and be accounted for in a manner prescribed by the commission, and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose.
Upon receipt of a recommendation from the committee for the promulgation, amendment, or repeal of regulations, the secretary shall within 30 working days do one of the following:
Initiate the rulemaking process with the regulation as recommended by the committee.
Decline to initiate the rulemaking process and provide the committee with a written statement of reasons for the decision.
Request that the committee provide additional information regarding the recommended regulations.
All regulations adopted pursuant to this chapter shall be adopted in compliance with the Administrative Procedure Act, Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code and may be subsequently repealed or amended as provided for in that chapter.
ARTICLE 4. Duties and Powers [55040. - 55047.]
The powers and duties of the committee shall include, but not be limited to, all of the following:
Identifying rices that have characteristics of commercial impact.
Recommending to the secretary proposed regulations establishing terms and conditions for planting, producing, processing, or handling rice identified pursuant to subdivision (a), including, but not limited to, seed application requirements, field buffer zones, handling requirements, seed testing, and identity preservation requirements. All rice identified pursuant to subdivision (a) shall be subject to an identity preservation program.
Reviewing the efficacy of terms, conditions, and identity preservation programs imposed on the planting, producing, processing, or handling of rice identified pursuant to subdivision (a) using the most current industry standards and generally accepted scientific principles.
Recommending to the secretary on all matters pertaining to this chapter, including, but not limited to, the amendment or repeal of regulations adopted pursuant to this chapter, enforcement of this chapter, and setting the assessment rates.
The committee shall review each rice identified as having characteristics of commercial impact not less often than every two years, or upon receipt of a petition from a handler of rice. A handler of rice identified as having characteristics of commercial impact may not file more than one petition on a particular variety of rice in any two-year period.
Neither the recommendations of the committee nor any regulation adopted pursuant to this chapter shall be construed as establishing any production, processing, or market tolerance.
The committee shall recommend to the secretary that regulations be adopted, amended, or repealed by the secretary to accomplish all of the following purposes:
Maintain the integrity and prevent the contamination of rice which has not been identified pursuant to subdivision (a) of Section 55040.
Prevent the introduction of diseases, weeds, or other pests.
Ensure that persons handling seed for the production of rice identified pursuant to subdivision (a) of Section 55040, or that persons bringing rice identified pursuant to subdivision (a) of Section 55040 into the state for processing, notify the commission of the location of planting sites and of the dates and procedures for planting, producing, processing, or handling of rice identified pursuant to subdivision (a) of Section 55040.
Ensure that persons receiving rice having been identified pursuant to subdivision (a) of Section 55040 produced outside the state for processing notify the commission of the location of the receipt and of the procedures for processing or handling the rice to prevent commercial impact to other rice and the spread of weeds, diseases, or other pests.
Ensure enforcement of terms and conditions imposed on the planting, processing, or handling of rice identified pursuant to subdivision (a) of Section 55040.
Encourage research and development of new types of rice.
ARTICLE 5. Commercial Impact Rice [55050. - 55052.]
Except as provided for in Section 55052, no person may plant, produce, process, or handle rice identified pursuant to subdivision (a) of Section 55040, except in compliance with this chapter. Regulations shall be adopted by the secretary, in accordance with Section 55022, to accomplish all of the following purposes:
Maintain the integrity and prevent contamination of rice which has not been identified pursuant to subdivision (a) of Section 55040.
Prevent the introduction of disease, weeds, or other pests.
Ensure that persons handling seed for the production of rice identified pursuant to subdivision (a) of Section 55040 or bringing rice identified pursuant to subdivision (a) of Section 55040 into the state for processing notify the commission of the location of planting sites and of the dates and procedures for planting, producing, processing, or handling of rice identified pursuant to subdivision (a) of Section 55040.
Ensure that persons receiving rice having been identified pursuant to subdivision (a) of Section 55040 produced outside the state for processing notify the commission of the location of the receipt and of the procedures for processing or handling the rice to prevent commercial impact to other rice and the spread of weeds, diseases, or other pests.
Enforce the restrictions and conditions imposed on the planting, producing, processing, or handling of rice identified pursuant to subdivision (a) of Section 55040.
Encourage research and development of new types of rice.
Except as set forth in this section, this chapter shall not apply to 50 acres or less of rice of any type planted for research purposes. No one type may be planted on more than 50 acres in the state and be considered research within the meaning of this section. Any person conducting research on 50 acres or less shall notify the committee of the location of the acreage involved, and the proposed procedures for planting, producing, processing, or handling the rice. The committee shall review and approve, modify, or reject the proposed procedures to ensure that the research will not result in commercial impacts to other rice. The committee shall accept any procedures that have been previously approved or accepted by an agency of state or federal government unless the committee provides written justification for modifying or rejecting the procedures.
In addition to the information required pursuant to subdivision (a), the committee may require any person proposing to conduct research using rice brought into the state from another state or country to provide the committee with proposed procedures to ensure that the introduced rice is free of diseases, weeds, or other pests. The committee shall review and approve, modify, or reject the proposed procedures. The committee shall accept any procedures that have been previously approved or accepted by an agency of state or federal government unless the committee provides written justification for modifying or rejecting the procedures.
The notice required pursuant to this section shall not require specific information regarding the attributes of the rice that is the subject of the research.
The notice required by this section shall be provided in the time and manner specified by the committee.
This chapter shall not apply to research conducted by the University of California except for rice produced directly from the research that enters the channels of trade.
ARTICLE 6. Assessments [55060. - 55063.]
Handlers of seed for the production of rice identified pursuant to subdivision (a) of Section 55040, shall annually pay to the commission an assessment in an amount not to exceed five dollars ($5) per hundredweight (cwt.).
The first in-state handler of paddy or brown rice identified pursuant to subdivision (a) of Section 55040, or of seed for the production of rice identified pursuant to subdivision (a) of Section 55040, brought into the state from outside California, shall report to the commission prior to the receipt of the rice or seed and pay an assessment to the commission in an amount not to exceed ten cents ($0.10) per hundredweight (cwt.). The report and payment shall be made in the time and manner specified by the commission.
The assessment shall be paid in the time and manner specified by the commission. No assessment shall be paid by any person for any rice seed for which the assessment has been previously paid. Assessments not paid when due shall be subject to a penalty of 10 percent of the assessment and interest at the rate of 1 percent per month.
The commission shall use all funds received pursuant to this chapter for the purposes of this chapter.
The commission shall publish an annual report of its activities including an accounting of the use of assessments collected pursuant to this chapter. The report, in aggregate form, shall be made available to any person upon request.
ARTICLE 7. Certification of Rice [55070. - 55076.]
The commission may establish a program allowing for the certification of any verifiable attribute of rice. The commission may operate the program or contract with qualified entities to implement all or any aspect of the program. No organization shall be considered qualified for the purposes of this article unless it can provide accurate, verifiable certification of identified attributes of seed, rough or paddy rice, or milled rice, as determined by the commission. This article does not authorize the certification of any rice as organic. Certification pursuant to this article shall not be construed as establishing any production, processing, or market tolerance.
The commission shall require any organization seeking to certify rice pursuant to this article to file the procedures and standards of an internationally recognized identity preservation program or a certification plan, including, but not limited to, the following:
Minimum information to be required from seed producers, producers and handlers regarding production, growing, conditioning, or processing practices, and methods for verifying the information received.
Qualifications of, and training requirements for, all inspectors.
Procedures for inspection and testing methods, including a complete description of the sampling methodologies.
Criteria for certification and attributes to be certified.
Processes for decisionmaking relative to certification procedures, criteria, and methods.
The certification plan shall be kept by the commission and made available for public inspection upon request.
Organizations certifying rice shall keep accurate books, accounts, and records of all activities relating to certification. The records shall be preserved for a period of three years and shall be submitted for inspection at any reasonable time upon written demand of the commission.
At the end of each rice producing season, as established by the commission, each organization certifying rice for the commission shall prepare a list of all persons whose rice has been certified or is pending certification. This list shall be filed with the commission and shall be available for public inspection.
Notwithstanding any other provision of law, any producer or handler of rice sold as a certified rice and any organization certifying rice for the commission shall immediately make available for inspection by, and shall within 72 hours of a request provide to, the commission a copy of any record required to be kept under this chapter. Records acquired pursuant to this section and any information marked trade secret or confidential acquired by the commission in carrying out its duties under this chapter shall not be public records as that term is defined in Section 7920.530 of the Government Code and shall not be subject to Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code.
The commission shall not be required to obtain records not in its possession in response to a subpoena. Prior to releasing records required to be kept pursuant to this chapter in response to a subpoena, the commission shall delete any financial information about any operation or transaction, information regarding the identity of suppliers or customers, the quantity or price of supplies purchased or products sold, and any information marked trade secret or confidential.
Upon receipt of a petition from any person providing adequate evidence of good cause to do so, the commission may declare all rice produced within a specified area to be certified as to any attribute. If the commission makes this declaration, all rice produced within the area shall be deemed certified, and may be labeled as provided in Section 55082 if the rice is handled to preserve its identity.
ARTICLE 8. Sale of Certified Rice [55080. - 55083.]
Every person engaged in this state in the production or handling of rice to be identified as certified pursuant to this chapter, shall register with the commission or its designate prior to the first sale of rice so identified, and shall thereafter annually renew the registration unless the person is no longer engaged in the activities requiring registration.
Registration shall be on a form developed by the commission, or developed by its designate and approved by the commission, and shall be valid for one rice producing season.
Rice certified pursuant to this chapter shall be labeled as follows or with substantially similar language:
“THIS LOT OF RICE CERTIFIED (accurate identification of specified attribute) IN ACCORDANCE WITH THE CALIFORNIA RICE CERTIFICATION ACT OF 2000.”
The label shall also include the name of any organization that provided the certification as the commission’s designate. The commission may revise the label language with the concurrence of the secretary.
This chapter shall apply to all rice sold as certified pursuant to this chapter within the state, wherever produced or handled, and to all rice produced or handled in the state, wherever sold as certified, pursuant to this chapter; except that in lieu of registration under this chapter, the commission may recognize a certification program operating outside the state that certifies rice sold as certified, provided that program meets minimum standards substantially similar to those contained in this chapter. The commission may establish a procedure whereby certification organizations operating outside the state may apply for and receive recognition.
ARTICLE 9. Violations [55100. - 55108.]
It is unlawful for any person to handle, advertise, or label rice in violation of this chapter.
Notwithstanding subdivision (a), a person engaged in business as a retailer of rice who in good faith handles, labels, or advertises any rice in reliance on the representations of a producer or handler that the rice may be sold as certified, shall not be found to violate this chapter, except under any of the following circumstances:
The retailer knew or should have known that the rice could not be sold as certified.
The retailer was engaged in producing or handling the rice.
The retailer prescribed or specified the manner in which the rice was produced or handled.
It is unlawful for any person to certify rice in violation of this chapter.
It is unlawful for any person to certify rice unless designated by the commission.
It is unlawful for any person to willfully make a false statement or representation, or knowingly fail to disclose a fact required to be disclosed pursuant to Article 7 (commencing with Section 55070).
It is unlawful for any person to produce or handle rice sold as certified unless duly registered pursuant to Section 55080.
It is unlawful for any person to willfully make a false statement or representation, or knowingly fail to disclose a fact required to be disclosed, during registration pursuant to Section 55080.
It is unlawful for any person to forge, falsify, fail to retain, fail to obtain, or fail to disclose records as required by this chapter.
It is unlawful for any person to fail or refuse to pay any assessments levied pursuant to this chapter.
It is unlawful for any person to plant, produce, process, or handle rice, except in compliance with this chapter.
All remedies provided by this chapter are cumulative and not exclusive of any other remedy, whether initiated by the commission or the department.
Penalties received pursuant to this article shall be handled as specified in Section 55062.
ARTICLE 10. Investigations and Actions by the Commission [55110. - 55113.]
The commission may receive and investigate complaints regarding alleged violations of this chapter. The commission may refer cases to the department for action.
The commission shall provide notice to the person or persons, and to the secretary, alleged to have violated the provisions of this chapter informing him or her of the commission’s decision to take further action pursuant to this article. The person may seek a review of the commission’s decision by the secretary and thereafter may seek judicial relief.
The commission may enter into a written agreement with any person alleged to have violated this chapter that will cause the cessation of any alleged violation and avoidance of future violations.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and for obtaining a writ of attachment, specific performance, or injunctive relief regarding this chapter. The commission may seek a writ of attachment or injunctive relief, including, but not limited to, a temporary restraining order, preliminary injunction, or a permanent injunction, in order to prevent any violation or threatened violation of this chapter.
The commission shall provide notice to the person alleged to have violated this chapter prior to commencing a civil action.
A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated, or has threatened to violate, this chapter. No bond shall be required to be posted by the commission as a condition for the issuance of the requested writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure shall not be required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure shall not be required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding rice until there is full compliance and satisfaction of the judgment. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal place of business of the commission. The commission may be sued only in the county of its principal office.
Prior to bringing an action for injunctive relief pursuant to this section, the commission shall review all available information, recommend specific enforcement action to the secretary, and allow the secretary the opportunity to respond. Notwithstanding the secretary’s response, nothing in this section shall be construed as preventing the commission from bringing the action.
The commission shall be entitled to receive reimbursement for any reasonable attorney’s fees and other related costs, including, but not limited to, investigative costs, involved in enforcement of this chapter.
ARTICLE 11. Investigations and Actions by the Department [55120. - 55123.]
The department may investigate complaints referred to it by the commission regarding alleged violations of this chapter. The department may enter and inspect the premises of any person subject to this chapter for the purpose of inspecting rice, rice processing, or handling activities governed by this chapter. If the department determines that violations have occurred, the department may take action authorized by this chapter, including, but not limited to, seizing and destroying rice. Rice may not be destroyed by the department without due notice to the person whose rice was seized and an informal hearing before the secretary pursuant to procedures adopted by the department.
The department may commence civil actions and utilize all remedies provided in law or equity for obtaining a writ of attachment, specific performance, or injunctive relief for violations of this chapter.
The department may levy a civil penalty against any person who is grossly negligent or willfully violates this chapter in an amount of not more than fifteen thousand dollars ($15,000) for each violation. Each day a grossly negligent or willful violation of this chapter continues, for a period that shall not exceed 10 days, may be a separate violation. The amount of the penalty assessed for each violation shall be based upon the nature of the violation, the seriousness of the effect of the violation upon the effectuation of the purposes and provisions of this chapter, and the impact of the penalty on the violator, including the deterrent effect on future violations. If the secretary determines, based on evidence submitted, that the grossly negligent or willful violation has the potential to seriously impact the ability of California rice producers to produce or market rice without characteristics of commercial impact, each day shall be considered a separate violation and the period of time shall not exceed a total of 20 days.
Upon a finding that a violation was negligent or unintentional, the secretary may levy a civil penalty of not more than two thousand five hundred dollars ($2,500) for each violation.
For a first offense, and upon a finding that the violation is minor and negligent or unintentional, in lieu of a civil penalty as prescribed in subdivision (b), the secretary may issue a notice of violation.
A person against whom a civil penalty is levied shall be afforded an opportunity for a hearing before the secretary, upon a request made within 30 days after the date of issuance of the notice of penalty. At the hearing, the person shall be given the right to present evidence on his or her own behalf. If no hearing is requested, the civil penalty shall constitute a final and nonreviewable order.
If a hearing is held, review of the decision of the secretary may be sought by the person against whom the civil penalty is levied within 30 days of the date of the final order of the secretary pursuant to Section 1094.5 of the Code of Civil Procedure.
A civil penalty levied by the department pursuant to this section may be recovered in a civil action brought in the name of the state.
The department shall be entitled to receive reimbursement for any reasonable attorney’s fees and other related costs, including, but not limited to, investigative costs, involved in enforcement of this chapter.
The department shall use all funds received pursuant to this chapter for the purposes of this chapter.
CHAPTER 5. Grain and Seed Cleaners [55251. - 55255.]
As used in this chapter:
“Grain and seed” includes any grain, seeds, rice, beans, and any other agricultural product which is customarily cleaned by grain and seed cleaners.
“Grain and seed cleaner” means a person that is lawfully engaged in the business of cleaning grain and seeds for others.
If the owner delivers any grain and seed to a grain and seed cleaner for cleaning, and desires to have the cleanings from the grain and seed kept for him, he shall make written request to the grain and seed cleaner to segregate and hold all cleanings which result from the cleaning of the grain and seed.
If a request is made by the owner, the cleaner shall sack or otherwise segregate the cleanings and give written notice to the owner when the cleaning is completed.
If the cleanings are not removed from the cleaning plant within five days after the mailing of the written notification to the owner, as provided in Section 55253, or five days from the date of receiving authorization to move the cleanings if such authorization is required by Section 7571, the grain and seed cleaner may dispose of the cleanings in such manner as is provided by law.
If no disposition of the cleanings is provided for by law and authorization to move the cleanings if required by Section 7571 is received as provided in Section 55254, the grain and seed cleaner may dispose of the cleanings by sale or otherwise and shall pay the grower the net receipts received from such sale after deducting reasonable expenses of the sale and satisfying any claims which he may have against such cleanings.
CHAPTER 6. Processors of Farm Products [55401. - 55922.]
ARTICLE 1. Definitions [55401. - 55409.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Agent” means any person that on behalf of any processor contracts for or solicits any farm product from a producer of the farm product, or that negotiates the purchase of any farm product on behalf of any processor.
“Cash” means coin or currency of the United States, and does not include a check or money order.
“Cash buying processor” means any person who is engaged in the business of processing or manufacturing any farm product; who obtains from the producer of any farm product, title to, or possession or control of the farm product; and who buys or agrees to buy any farm product, by cash payment of the full agreed price of such product to the producer at the time of obtaining possession or control or at the time of contracting for title to, or possession or control of any farm product.
“Farm product” includes every agricultural, horticultural, viticultural, or vegetable product of the soil, honey and beeswax, oilseeds, poultry, poultry product, livestock product, and livestock for immediate slaughter. It does not include timber or any timber product, milk or any milk product, any aquacultural product, or cattle sold to any person who is bonded under the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181, et seq.).
“Lender” includes any person that advances new value to a processor.
“Licensee” means any person licensed under the provisions of this chapter as a processor or cash buying processor.
“New value” includes any new advance or loan, whether in money or other property, which is made by a lender to a processor. It does not, however, include any extension or renewal of any existing obligation of the processor, nor any obligation which is substituted for such existing obligation.
“Packout basis” means that payment for the farm product is based on the grade or quality of the finished product, as determined at the completion of the processing.
“Processor” means any person that is engaged in the business of processing or manufacturing any farm product, that solicits, buys, contracts to buy, or otherwise takes title to, or possession or control of, any farm product from the producer of the farm product for the purpose of processing or manufacturing it and selling, reselling, or redelivering it in any dried, canned, extracted, fermented, distilled, frozen, eviscerated, or other preserved or processed form. It does not, however, include any retail merchant that has a fixed or established place of business in this state and does not sell at wholesale any farm product which is processed or manufactured by him.
“Producer” means any person that is engaged in the business of growing or producing any farm product.
Juice or must used for wine which, as a condition of sale, is required to be pressed or crushed from grapes in the field or at a facility not owned by the purchasing vintner, is a farm product for purposes of this chapter. Juice or must which was not required to be pressed or crushed from grapes as a condition of a sale, and which is stored for the account of the producer who grew the grapes, is not a farm product when it is sold.
ARTICLE 2. General Provisions [55431. - 55439.]
The marketing of agricultural commodities within this state is hereby declared to be affected with the public interest. The provisions of this chapter are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
The director may publish in pamphlet form as often as he thinks necessary a list of processors that are licensed pursuant to this chapter, together with all necessary regulations which concern the enforcement of this chapter.
Any money in the Department of Food and Agriculture Fund that was derived pursuant to this chapter, or Chapter 7 (commencing with Section 56101), may be expended for the administration and enforcement of these chapters and Chapter 7.2 (commencing with Section 56701), notwithstanding any other law that limits the expenditure of any such money to the specific purposes or to the administration or enforcement of each of the chapters separately.
No provisions in any bond which is given pursuant to any provision of this chapter which attempts by contract to shorten the period which is prescribed for the commencement of an action on the bond by Section 337 of the Code of Civil Procedure, is valid if such provision attempts to limit the time for commencement of action on the bond to a shorter period than six months from the termination of the 35-day period which is covered by such bond.
Except pursuant to an exemption granted by the department, no person licensed under this chapter shall employ as an agent any person who meets any of the following criteria:
Whose license has been revoked, or is currently suspended.
Who has committed any one flagrant or repeated violations of this chapter or Chapter 7 (commencing with Section 56101).
Who failed to pay a producer’s claims for which the person, or, where the person controlled the decision to pay, the person’s employer, was liable, and which arose out of the conduct of a business licensed, or required to be licensed, under this chapter or Chapter 7 (commencing with Section 56101).
Who has been convicted of a crime that includes as one of its elements the financial victimization of another person.
The department may approve the employment of any person covered under subdivision (a), if the licensee furnishes and maintains a surety bond in the form and amount satisfactory to the department, but which shall not be less than ten thousand dollars ($10,000), as assurance that the licensee’s business will be conducted in accordance with this chapter and that the licensee will pay all amounts due California producers. The department may approve employment without a surety bond after the expiration of four years from the effective date of the applicable disciplinary order. The department, based on changes in the nature and volume of business conducted by the licensee, may require an increase or authorize a reduction in the amount of the bond, but in no case shall the bond be reduced below ten thousand dollars ($10,000). A licensee who is notified by the department to provide a bond in an increased amount shall do so within a reasonable time to be specified by the department, and if the licensee fails to do so, the approval of employment shall automatically terminate. The department may suspend or revoke the license of any licensee who, after the date given in the notice, continues to employ any person in violation of this section.
The department may obtain access to a licensee’s or agent’s criminal record during the course of a licensing investigation opened for other reasons or if the department is presented with a reasonable basis to believe an agent or licensee satisfies any of the criteria set forth in paragraphs (1) to (4), inclusive, of subdivision (a). The Department of Justice shall furnish criminal record information to the department at the department’s request. If the information thereby obtained reveals a conviction for a crime that includes as one of its elements the financial victimization of another person, the department shall bring this to the attention of the licensee and the agent by a written notice. This written notice shall set out the charges against the licensee or agent, prohibit employment or revoke or deny the license effective if and when any rights to an administrative hearing have been exhausted, and set out the licensee’s or agent’s rights under this section.
The department may grant an exemption on presentation of substantial, clear, and convincing evidence to support a reasonable belief as to any of the following:
There has been a mistake of fact or identity.
The present role as an agent provides no opportunity for a repeat of the prior behavior.
The person has been rehabilitated.
All submissions shall be authenticated and verified under penalty of perjury. Unless the licensee or agent can prove one of these three elements by substantial, clear, and convincing evidence, the department shall deny the request for exemption.
A licensee or agent who has been identified by the department as satisfying any of the criteria set forth in paragraphs (1) to (4), inclusive, of subdivision (a) and who has not been granted an exemption by the department shall be afforded a hearing upon the licensee’s or agent’s request under this chapter. The licensee or agent shall not have a right of hearing if the department did not notify the employer or deny an exemption.
At the hearing, the department shall have the burden to prove that any of the criteria set forth in paragraphs (1) to (4), inclusive, of subdivision (a) are satisfied by a preponderance of the evidence. It shall be the licensee’s or agent’s burden to prove rehabilitation by substantial, clear, and convincing evidence.
In the case of a criminal conviction, “convicted of a crime” includes a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action that the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. For purposes of this section or any other provision of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction.
For purposes of this section or any other provision of this chapter, a certified copy of a decision and order or minutes of the court in which a finding is made concerning any of the criteria set forth in paragraphs (1) to (3), inclusive, of subdivision (a), is prima facie evidence of the truth of the charge and collateral estoppel applies.
The documents and information procured pursuant to this section shall be considered the records of a consumer and shall not be construed to be a public record. The documents and information shall remain confidential, except in actions brought by the department to enforce this division, or as a result of the issuance of a subpoena in accordance with Section 1985.4 of the Code of Civil Procedure. The unauthorized release of the documents received from the Department of Justice or the information contained in those documents is a misdemeanor.
Civil suits and criminal prosecutions which arise by virtue of any provision of this chapter may be commenced and tried in any of the following:
The county where the products were received by the processor.
The county in which the principal place of business of such processor is located.
The county in which the violation of this chapter occurred.
The rights, remedies, and penalties which are provided for in this chapter are in addition to any other rights, remedies, or penalties which are provided for by law, and any acts or parts of acts in conflict therewith are hereby repealed.
Except as otherwise provided in this chapter, the provisions of Part 2 (commencing with Section 307) of the Code of Civil Procedure are applicable to, and constitute the rules of practice in, the proceedings which are mentioned in this chapter, and the provisions of Part 2 of the Code of Civil Procedure relative to new trials and appeals, except insofar as they are inconsistent with the provisions of this chapter, apply to the proceedings which are mentioned in this chapter.
If any clause, sentence, paragraph, or part of this chapter is for any reason adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder of this chapter, but shall be confined in its operation to the clause, sentence, paragraph, or part of this chapter which is directly involved in the controversy in which such judgment is rendered.
ARTICLE 3. Exceptions [55461. - 55462.]
This chapter does not apply to or include any nonprofit cooperative association which is organized and operating pursuant to Chapter 1 (commencing with Section 54001) or pursuant to similiar laws of any other states, the District of Columbia, or the United States. This chapter also does not apply to the agents of these organizations in the performance of their duties. This chapter does apply to the activities of the organization, or agent, which involve the handling or dealing in any farm product of nonmembers of the organization, and activities of such an organization, or agent, which involve acting as a producer bargaining association asserting the lien rights of its members.
For the purposes of trading in cattle, this chapter does not apply to or include any person who is bonded under the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181, et seq.) who is engaged in the business of buying or selling cattle.
ARTICLE 4. Agent’s License [55481. - 55493.]
A person shall not act as an agent unless such person has first obtained a license as provided in this chapter.
Every person, before acting as an agent, shall file an application with the director for a license to so act. The application shall be accompanied by the application fee which is prescribed by Article 16 (commencing with Section 55861) of this chapter.
Each application shall include all of the following:
Such information as the department may consider proper or necessary.
The name and address of the applicant.
The name and address of the processor that is represented or sought to be represented by the agent.
The written endorsement or nomination of the processor.
A release authorizing the department, during consideration of the application and for the duration of licensure, to have access to and obtain financial information from both of the following:
The applicant’s files with credit reporting agencies.
The applicant’s files with banks, savings and loan associations, or any other financial institutions with whom the applicant has done business in the past or with whom the applicant intends to do business during the year of licensure.
A notice signed by the applicant that the department may obtain criminal record information during the course of a licensing investigation or upon presentation with a reasonable basis to believe the licensee has been convicted of a crime. An applicant whose application is incomplete shall be given written notice that a failure to complete it within 30 calendar days shall result in denial of the application.
The documents and information procured pursuant to this section shall be considered the records of a consumer and shall not be construed to be a public record. The documents and information shall remain confidential, except in actions brought by the department to enforce this division, or as a result of the issuance of a subpoena in accordance with Section 1985.4 of the Code of Civil Procedure. The unauthorized release of the documents received from the Department of Justice or the information contained in those documents is a misdemeanor.
The department shall adopt regulations that specify the proper and necessary information and supporting documentation the department requires for an application to be considered complete.
The department shall accept or deny an application within 90 calendar days of receipt of a completed application. The department may deny, condition, suspend, or revoke a license issued pursuant to this chapter upon any of the following grounds and in the manner provided in this chapter:
Upon one flagrant violation, as determined by the department, or upon repeated violations, by the holder or applicant, of any one or combination of the sections of this division or under any one or combination of the regulations promulgated by the department under the authority of this division.
Upon one flagrant violation, as determined by the department, or upon repeated violations, by a holder’s or applicant’s agent, employee, or contractor, or of an organization or entity in which the holder or applicant holds a significant financial interest, of any one or combination of the sections of this division or any one or combination of the regulations promulgated under this division under circumstances where the holder or applicant knew or should have known and failed to take reasonable measures to prevent the violation or failed to report the violation to the department upon learning of the violation.
On the conviction of the holder or applicant of a crime that includes as one of its elements the financial victimization of another person. However, if the licensee was licensed prior to January 1, 1998, and the department knew of, or was on notice of, the conviction, that conviction may not form the basis of a discipline under this subdivision.
On the grounds of a false or misleading statement by a holder or applicant that the holder or applicant knew or should have known to be false or misleading, directed to any official of any government concerning the scope of any indicia of authority, including, but not limited to, the holder’s or applicant’s license associated with the holder’s or applicant’s business, the standards under which the indicia was authorized, the contents of the application for licensure, or the holder’s or applicant’s relationship to the indicia.
On the grounds that a holder or applicant, or a holder’s or applicant’s agency, employee, or contractor, or an organization or entity in which a holder or applicant holds a significant financial interest, deceived a grower in any material matter. Deception, for purposes of this subdivision, does not require scienter, but requires active misrepresentation where the actor knew the representation to be false or where the actor should have known, with due consideration, that he or she did not know whether or not the representation was true or false.
The Legislature finds there to be a substantial nexus between the conduct specified in Section 55484 and an applicant’s or holder’s fitness for licensure.
The department shall not dismiss an action where a violation, however minor, has been established. The department shall not dismiss an action because the applicant or holder establishes factors in mitigation.
However, the department may impose discipline other than denial or revocation of the license. As an alternative to revocation of a license, the department may stay a revocation subject to terms for a period of probation. As an alternative to denial the department may issue a license subject to conditions. Terms of probation or terms of conditional licensure may include, but are not limited to, a requirement of restitution, payment for extra audits, immediate revocation on a new violation, or any other terms that respond to the particular violations or circumstances found.
Once a finding of a violation has been made, the department may consider the following factors in assessing the appropriate level of discipline:
The relative isolation or infrequency of the conduct.
Whether the conduct was a part of a pattern or practice.
Whether the actor had been warned before.
Whether the actor considered the consequences of the conduct.
Whether the actor reasonably relied on others.
The severity of the consequences.
The mens rea of the actor.
In the case of a criminal conviction, evidence of rehabilitation.
The total licensing history.
The following factors shall not be considered in assessing the appropriate level of discipline:
The social or economic contributions of the applicant or holder.
General testimonials as to good character and worthiness to be licensed.
Economic hardship on the licensee.
“Mercy of the court” pleas in connection with criminal convictions, pattern or practice violations, or deception.
In the case of a felony criminal conviction, the department shall not consider rehabilitation unless the convicted person has a valid certificate of rehabilitation.
If an application for a license indicates, or the department determines during the application review process, that the applicant was issued a license that was revoked within the preceding two years, the department shall cease any further review of the application until two years have elapsed from the date of the revocation. The cessation of review shall not constitute a denial of the application for the purposes of this chapter, or any other provision of law.
If an application for a license indicates, or the department determines during the application review process, that the applicant had previously applied for a license and the application was denied within the last year, the department shall cease further review of the application until 30 days have elapsed from the date of the notification of the denial or from the effective date of the decision and order of the department upholding a denial. The cessation of review shall not constitute a denial of the new applicant for purposes of this chapter, or any other provision of law.
Nothing in subdivision (a) or (b) prohibits the department from taking into account the basis for denial or revocation in considering any new application subsequent to the elapse of the applicable period of prohibition.
The applicant shall satisfy the department of the applicant’s character, responsibility, and good faith in seeking to carry on the business that is stated in the application.
A license is forfeited by operation of law prior to its expiration date when one of the following occurs:
The holder surrenders the license to the department.
The holder dies.
The partnership holder dissolves.
The holder of a significant financial interest in a corporation transfers his or her interest to another person or entity, regardless of relationship.
The holder files for bankruptcy under provisions other than those permitting and governing reorganization under bankruptcy.
The withdrawal of an application for a license after it has been filed with the department does not deprive the department of its authority to institute or continue a proceeding against the applicant or to enter an order denying the license, unless the department consents in writing to such a withdrawal.
The expiration or forfeiture by operation of law of a license, or its forfeiture or cancellation by order of the department or by order of a court of law, or its surrender without the written consent of the department, does not deprive the department of its authority to institute or continue a disciplinary proceeding against the holder upon any ground provided by law or to enter an order revoking the license or otherwise taking disciplinary action against the holder.
Any action brought by the department against an applicant or holder does not abate by reason of the sale or other transfer of ownership of the business that is a party to the action, except with the written consent of the department.
Nothing in this division or in any other provision of this code deprives the department of the authority to settle or adjudicate a disposition of a case other than by revocation or denial. The department or the department’s designee may compromise with the applicant or holder in a written stipulation and order. The department may, following a hearing, order probation on terms and conditions as determined by the department. The authority conferred by this subdivision shall include, but not be limited to, the authority to order payment of amounts determined owing, the authority to dismiss an action on the department’s own initiative, the authority to order administrative penalties, the authority to order a respondent to pay for heightened audit scrutiny, the authority to suspend a license for a period of years, or any combination of remedies other than final revocation or denial of a license.
The department shall notify the applicant or holder in writing of the department’s decision to bring charges to deny or revoke a license.
The notice shall inform the applicant or holder of the charges against him or her, of the department’s proposed disciplinary action, and of his or her rights under this chapter.
The notice shall be served by certified mail to the applicant’s or holder’s last known address.
The notice shall be mailed to the applicant or holder at least 30 calendar days in advance of the impending action.
The department’s proposed action shall become final unless the applicant or holder appeals prior to the end of the notice period by submitting a notice of defense to the department in a form specified by the department. The notice shall be transmitted to the department in a form that is written, including, but not limited to, by facsimile.
If the department receives a timely notice of defense, the department shall schedule a hearing within 90 calendar days of receipt of the notice of defense. Pending the final decision at the conclusion of the hearing, a revocation shall be stayed.
Proceedings for the revocation or denial of a license issued under this chapter shall be conducted by hearing officers appointed for that purpose by the department. The department may elect to use hearing officers employed by the Office of Administrative Hearings. The hearing officers shall be independent of the Market Enforcement Bureau, but may be employees of the department. The hearing officers shall be qualified administrative law judges.
Proceedings shall be conducted generally in accordance with the provisions of Chapters 4.5 (commencing with Section 11400) and 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. However, proceedings need not conform strictly to any “rules of court” adopted as regulations by the Office of Administrative Hearings to guide the conduct of hearings conducted by the Office of Administrative Hearings. The department has all power granted by Chapters 4.5 (commencing with Section 11400) and 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
The sole parties to the proceedings shall be the department and the applicant or holder. Third party intervention shall not be permitted. The disputes, claims, and interests of third parties shall not be within the jurisdiction of the proceedings. However, nothing in this paragraph prohibits any interested party from submitting an amicus brief if the hearing officer requests written briefs.
The validity of a department regulation or order shall not be within jurisdiction of the proceedings.
Law and motion matters shall be handled by the assigned hearing officer.
The hearing officer may not enter into settlement discussions.
The hearing officer may not issue sanctions.
In all proceedings conducted in accordance with this section, the standard of proof to be applied is the preponderance of the evidence. When the department seeks to revoke an existing license, the department shall have the burden of proof and the burden of producing evidence.
Decisions following a hearing shall be adopted by the department or the department’s designee and become final unless remanded for reconsideration or alternated in accordance with Chapters 4.5 (commencing with Section 11400) and 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
The department shall maintain a library of decisions that shall be made available to any person, including the parties to administrative actions during discovery.
The director may issue to each agent a separate license card for each processor represented by the agent.
Any agent that displays a void or expired license card is guilty of a misdemeanor.
Each agent shall show his license upon the request of any interested person.
ARTICLE 5. Processor’s License [55521. - 55530.]
A person shall not act as a processor or a cash buying processor unless he has first obtained a license as provided in this chapter or in Section 56574.
Every person, before acting as a processor or a cash buying processor, shall file an application with the director for a license to so act. The application, unless it is an application for a conjunctive processor’s license pursuant to Section 56574, shall be accompanied by the application fee which is prescribed by Article 16 (commencing with Section 55861) of this chapter.
It is unlawful for a licensee that has changed its legal entity to do any of the following:
Continue to operate after the change.
Purchase or handle any farm product from a person who had a farm product contract with the former licensee at the time of the change in entity without notifying that person, in writing, of the change in entity.
Use any invoice, contract, or other document associated with the purchase, consignment, or brokerage of any farm product that identifies the former licensee unless the new entity is conspicuously identified on the same invoice, contract, or other document as the entity responsible for the transaction.
The new entity shall notify the director in writing of the change in legal entity within 15 days of the change. The new legal entity shall, before it conducts business that requires a license, obtain a new license for the business.
Notwithstanding subdivision (b), if a licensee conducts business without a new license as a result of a change of legal entity, it may, within 120 days of the change, upon a showing of no substantial change in financial resources and liabilities, petition the director to grant a new license retroactive to the first day of the month during which the change occurred, and the director may grant the license with retroactive effect upon a finding that doing so would be consistent with the purposes of this chapter. Upon granting the petition, the director shall (1) require the licensee to pay an additional fee in an amount that will cover the expenses of the department in the matter, but not to exceed the fee for a new license, (2) place conditions on the license that are consistent with the purposes of this chapter as the director deems appropriate, and (3) require the licensee to pay an amount, for deposit in the Farm Products Trust Fund, equal to the amount that would have been required had the license been obtained in accordance with subdivision (b).
If the Secretary of State suspends the corporate status of any licensee or if the corporate status is forfeited, the license is revoked by operation of law. The former licensee shall provide written notice of the suspension or forfeiture to the director, and to each person with whom it has a farm product contract, within 15 days of the date the Secretary of State mails the notice of suspension or forfeiture.
The former licensee, may, upon a showing of no substantial change in financial resources and liabilities, and within 90 days of the suspension or forfeiture of corporate status, petition the director for an order to reissue its license formerly held under this chapter. If the corporate status has been reinstated by the Secretary of State, the director may reissue the license if the director finds that doing so would be consistent with the purposes of this chapter. As a condition to reissuing the license, the director may (1) require the former licensee to undertake such financial guarantees, including the filing and maintaining bonds, as the director deems necessary to protect the interests of contracting parties, and (2) impose conditions on the license that are consistent with the purposes of this chapter as the director deems appropriate.
Each application shall state all of the following:
The full name of the applicant.
If the applicant is a firm, exchange, association, or corporation, the full name of each member of the firm or the names of the officers of the exchange, association, or corporation.
The principal business address of the applicant in this state.
The name of every person who is authorized to receive and accept service of summons for the applicant.
A release authorizing the department, during consideration of the application and for the duration of licensure, to have access to and obtain financial information from both of the following:
The applicant’s files with credit reporting agencies.
The applicant’s files with banks, savings and loan associations, or any other financial institutions with whom the applicant has done business in the past or with whom the applicant intends to do business during the year of licensure.
A notice signed by the applicant or the applicant’s representative that the department may obtain criminal record information during the course of a licensing investigation or upon presentation with a reasonable basis to believe the licensee has been convicted of a crime. An applicant whose application is incomplete shall be given written notice that a failure to complete the application within 60 calendar days shall result in denial of the application.
The documents and information procured pursuant to this section shall be considered the records of a consumer and shall not be construed to be a public record. The documents and information shall remain confidential, except in actions brought by the department to enforce this division, or as a result of the issuance of a subpoena in accordance with Section 1985.4 of the Code of Civil Procedure. The unauthorized release of the documents received from the Department of Justice or the information contained in those documents, is a misdemeanor.
In addition to the other requirements of this chapter, each application for a license, except for an application for a cash buying processor license, shall include an affidavit in which the applicant affirms that he or she is current in making all payments required under undisputed contract agreements, and that he or she will do all of the following:
Abide by all provisions of this chapter and Chapter 7 (commencing with Section 56101).
Prepare and retain financial records adequate to document all transactions with suppliers.
Prepare and retain current financial information, including, but not limited to, profit and loss statements and a balance sheet that presents fairly the financial condition as of the end of the applicant’s most recent fiscal year.
The affidavit shall be on a form prescribed by the secretary and shall be submitted under penalty of perjury.
Any balance sheet or financial information prepared, retained, or submitted as required by this chapter that shows the applicant to be in an unsound financial condition that impairs the ability to pay farm products creditors in full for farm products received or handled is sufficient grounds to deny the application for license or the renewal of a license. The denial of the application for a license or renewal of a license relating to an unsound financial condition shall include a notice and an opportunity for a hearing.
If the secretary is not satisfied that an applicant or licensee is financially responsible, the secretary may, in lieu of denying, suspending, or revoking the license, accept an irrevocable guarantee of the obligations of the licensee to all California farm product creditors. The irrevocable guarantee may include a personal or corporate guarantee, a certificate of deposit, a bank letter of credit, or a surety bond, as determined to be appropriate by the secretary, and shall be in an amount that is at least sufficient to pay for the licensee’s obligations at the time the guarantee is issued. The guarantee shall be for any period, in any form, and in any amount that the secretary may, from time to time, require. The secretary may, as a condition of accepting and maintaining the guarantee, require the guarantor to supply financial information to the secretary at times and to the extent the secretary deems advisable.
A guarantee placed with the secretary pursuant to subdivision (a) shall support an action in a court of competent jurisdiction by a farm products creditor for obligations of the licensee to the creditor and by a state officer for the obligations of the licensee to the state related to transactions subject to the guarantee.
An irrevocable guarantee accepted by the secretary pursuant to this section shall not operate as a release for purposes of Section 55637.
If at any time the secretary has cause or reason to believe that any applicant or licensee is in an unsound financial condition so as to impair his or her ability to pay farm products creditors in full for farm products received or handled, or for any reason the secretary deems advisable, the secretary may require an applicant or licensee to file with him or her a balance sheet or statement of financial position that presents fairly the financial condition of the licensee. The financial statement, if not prepared by a public accountant or certified public accountant, shall be on a form prescribed by the secretary and shall be submitted under penalty of perjury. Any balance sheet submitted that does not provide the information required by the secretary may be rejected until the information is provided.
Failure to file a financial statement as required by this chapter or to comply with the affidavit requirements of Section 55523.1 is a violation of this chapter.
Any financial statement submitted to the secretary pursuant to this chapter is confidential and shall not be divulged except at a hearing before the secretary or under subpoena, if necessary, for the proper determination of any court proceedings.
The department shall accept or deny an application within 90 calendar days of receipt of a completed application. The department may deny, condition, suspend, or revoke a license issued pursuant to this chapter upon any of the following grounds and in the manner provided in this chapter:
Upon one flagrant violation, as determined by the department, or repeated violations, by the holder or applicant, of any one or combination of the sections of this division or under any one or combination of the regulations promulgated by the department under the authority of this division.
Upon one flagrant violation, as determined by the department, or repeated violations, by a holder’s or applicant’s agent, employee, or contractor, or of an organization or entity in which the holder or applicant holds a significant financial interest, of any one or combination of the sections of this division or any one or combination of the regulations promulgated under this division under circumstances where the holder or applicant knew or should have known and failed to take reasonable measures to prevent the violation or failed to report the violation to the department on learning of the violation.
On the conviction of the holder or applicant of a crime that includes as one of its elements the financial victimization of another person. However, if the licensee was licensed prior to January 1, 1998, and the department knew of, or was on notice of, the conviction, that conviction may not form the basis of a discipline under this subdivision.
On the grounds of a false or misleading statement by a holder or applicant that the holder or applicant knew or should have known to be false or misleading, directed to any official of any government concerning the scope of any indicia of authority, including, but not limited to, the holder’s or applicant’s license associated with the holder’s or applicant’s business, the standards under which the indicia was authorized, the contents of the application for licensure, or the holder’s or applicant’s relationship to the indicia.
On the grounds that a holder or applicant, or a holder’s or applicant’s agency, employee, or contractor, or an organization or entity in which a holder or applicant holds a significant financial interest, deceived a grower in any material matter. Deception, for purposes of this subdivision, does not require scienter, but requires active misrepresentation where the actor knew the representation to be false or where the actor should have known, with due consideration, that he or she did not know whether or not the representation was true or false.
The Legislature finds there to be a substantial nexus between the conduct specified in Section 55524 and an applicant’s or holder’s fitness for licensure.
The department shall not dismiss an action where a violation, however minor, has been established. The department shall not dismiss an action because the applicant or holder establishes factors in mitigation.
However, the department may impose discipline other than denial or revocation of the license. As an alternative to revocation of a license, the department may stay a revocation subject to terms for a period of probation. As an alternative to denial the department may issue a license subject to conditions. Terms of probation or terms of conditional licensure may include, but are not limited to, a requirement of restitution, payment for extra audits, immediate revocation on a new violation, or any other terms that respond to the particular violations or circumstances found.
Once a finding of a violation has been made, the department may consider the following factors in assessing the appropriate level of discipline:
The relative isolation or infrequency of the conduct.
Whether the conduct was a part of a pattern or practice.
Whether the actor had been warned before.
Whether the actor considered the consequences of the conduct.
Whether the actor reasonably relied on others.
The severity of the consequences.
The mens rea of the actor.
In the case of a criminal conviction, evidence of rehabilitation.
The total licensing history.
The following factors shall not be considered in assessing the appropriate level of discipline:
The social or economic contributions of the applicant or holder.
General testimonials as to good character and worthiness to be licensed.
Economic hardship on the licensee.
“Mercy of the court” pleas in connection with criminal convictions, pattern or practice violations, or deception.
In the case of a felony criminal conviction, the department shall not consider rehabilitation unless the convicted person has a valid certificate of rehabilitation.
If an application for a license indicates, or the department determines during the application review process, that the applicant was issued a license that was revoked within the preceding two years, the department shall cease any further review of the application until two years have elapsed from the date of the revocation. The cessation of review shall not constitute a denial of the application for the purposes of this chapter, or any other provision of law.
If an application for a license indicates, or the department determines during the application review process, that the applicant had previously applied for a license and the application was denied within the last year, the department shall cease further review of the application until one year has elapsed from the date of the notification of the denial or from the effective date of the decision and order of the department upholding a denial. The cessation of review shall not constitute a denial of the new applicant for purposes of this chapter, or any other provision of law.
Nothing in subdivision (a) or (b) prohibits the department from taking into account the basis for denial or revocation in considering any new application subsequent to the elapse of the applicable period of prohibition.
The applicant shall satisfy the department of the applicant’s character, responsibility, and good faith in seeking to carry on the business that is stated in the application.
The withdrawal of an application for a license after it has been filed with the department does not deprive the department of its authority to institute or continue a proceeding against the applicant or to enter an order denying the license, unless the department consents in writing to the withdrawal.
The expiration or forfeiture by operation of law of a license, or its forfeiture or cancellation by order of the department or by order of a court of law, or its surrender without the written consent of the department, does not deprive the department of its authority to institute or continue a disciplinary proceeding against the holder upon any ground provided by law or to enter an order revoking the license or otherwise taking disciplinary action against the holder.
Any action brought by the department against an applicant or holder does not abate by reason of the sale or other transfer of ownership of the business that is a party to the action, except with the written consent of the department.
Nothing in this division or in any other provision of this code deprives the department of the authority to settle or adjudicate a disposition of a case other than by revocation or denial. The department or the department’s designee may compromise with the applicant or holder in a written stipulation and order. The department may, following a hearing, order probation on terms and conditions as determined by the department. The authority conferred by this subdivision shall include, but is not limited to, the authority to order payment of amounts determined owing to California farm product creditors, the authority to dismiss an action on the department’s own initiative, the authority to order administrative penalties, the authority to order a respondent to pay for heightened audit scrutiny, the authority to suspend a license for a period of years, or any combination of remedies other than final revocation or denial of a license.
Any person who is adjudicated liable for payment of a claim for farm products which arose out of the conduct of a business licensed or required to be licensed under this chapter or Chapter 7 (commencing with Section 56101), and who has not made full settlement with all producer-creditors, shall not be licensed by the director as a principal for four years from the date of the adjudication.
Licensees or applicants for a license shall be required to furnish and maintain an irrevocable guarantee in a form and amount satisfactory to the secretary if, within the preceding four years, the secretary determines that they have done any of the following:
Engaged in conduct which demonstrates a lack of financial responsibility, including, but not limited to, delinquent accounts payable, judgments of liability, insolvency, or bankruptcy.
Failed to assure future financial responsibility unless an irrevocable guarantee is provided.
Otherwise violated this chapter which resulted in license revocation.
The irrevocable guarantee may include a personal or corporate guarantee, a certificate of deposit, a bank letter of credit, or a surety bond, as determined to be appropriate by the secretary.
The guarantee shall not be less than ten thousand dollars ($10,000) or 20 percent of the annual dollar volume of business based on farm product value returned to the grower, whichever is greater, as assurance that the licensee’s or applicant’s business will be conducted in accordance with this chapter and that the licensee or applicant will pay all amounts due farm products creditors.
The secretary, based on changes in the nature and volume of business conducted by the licensee, may require an increase or authorize a reduction in the amount of the guarantee, but in no case shall the guarantee be reduced below ten thousand dollars ($10,000). A licensee who is notified by the secretary to provide a guarantee in an increased amount shall do so within a reasonable time as specified by the secretary. If the licensee fails to do so, the secretary may, after a notice and opportunity for a hearing, suspend or revoke the license of the licensee.
The department shall notify the applicant or holder in writing of the department’s decision to bring charges to deny or revoke a license.
The notice shall inform the applicant or holder of the charges against him or her, of the department’s proposed disciplinary action, and of his or her rights under this chapter.
The notice shall be served by certified mail to the applicant’s or holder’s last known address.
The notice shall be mailed to the applicant or holder at least 30 calendar days in advance of the impending action.
The department’s proposed action shall become final unless the applicant or holder appeals prior to the end of the notice period by submitting a notice of defense to the department in a form specified by the department. The notice shall be transmitted to the department in a form that is written, including, but not limited to, by facsimile.
If the department receives a timely notice of defense, the department shall schedule a hearing within 90 calendar days of receipt of the notice of defense. Pending the final decision at the conclusion of the hearing, a revocation shall be stayed.
Proceedings for the revocation or denial of a license issued under this chapter shall be conducted by hearing officers appointed for that purpose by the department. The department may elect to use hearing officers employed by the Office of Administrative Hearings. The hearing officers shall be independent of the Market Enforcement Bureau, but may be employees of the department. The hearing officers shall be qualified administrative law judges.
Proceedings shall be conducted generally in accordance with the provisions of Chapters 4.5 (commencing with Section 11400) and 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. However, proceedings need not conform strictly to any “rules of court” adopted as regulations by the Office of Administrative Hearings to guide the conduct of hearings conducted by the Office of Administrative Hearings. The department has all power granted by Chapters 4.5 (commencing with Section 11400) and 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
The sole parties to the proceedings shall be the department and the applicant or holder. Third party intervention shall not be permitted. The disputes, claims, and interests of third parties shall not be within the jurisdiction of the proceedings. However, nothing in this paragraph prohibits any interested party from submitting an amicus brief if the hearing officer requests written briefs.
The validity of a department regulation or order shall not be within jurisdiction of the proceedings.
Law and motion matters shall be handled by the assigned hearing officer.
The hearing officer may not enter into settlement discussions.
The hearing officer may not issue sanctions.
In all proceedings conducted in accordance with this section, the standard of proof to be applied is the preponderance of the evidence. When the department seeks to revoke an existing license, the department shall have the burden of proof and the burden of producing evidence.
Decisions following a hearing shall be adopted by the department or the department’s designee and become final unless remanded for reconsideration or alternated in accordance with Chapters 4.5 (commencing with Section 11400) and 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
The department shall maintain a library of decisions that shall be made available to any person, including the parties to administrative actions during discovery.
Each licensed processor shall post his license, or a copy of it, in his office or salesroom in plain view of the public.
ARTICLE 7. Sale of Farm Products by Weight [55581. - 55581.]
If any farm product is sold to and purchased by any processor on the basis of weight, such product shall be weighed by a weighmaster licensed under the laws of this state, and a certificate as to such weight issued by him shall be delivered to the seller by the processor or by the weighmaster as agent for the processor. Settlement for such product shall be made on the basis of the weight which is shown on the certificate.
ARTICLE 8. Processors [55601. - 55613.]
Every processor shall pay for any farm product which is delivered to the processor at the time and in the manner which is specified in the contract with the producer. If no time is set by such contract, or at the time of delivery, then the processor shall pay for the farm product within 30 days of the delivery or taking possession of such farm product.
Section 55601.5 shall be known, and may be cited as, the “Clare Berryhill Grape Crush Report Act of 1976.”
Upon delinquency of a contract.
If payment is not made within 30 days when the contract does not specify time of payment or if there is no contract.
If payment is not made within 30 days when the contract is oral, irrespective of the agreed time of payment.
The processor shall have the burden of proof as to the timely delivery of such a notice.
Such a notice shall only be required as to the first contract between any particular seller and processor during any one calendar year.
Notwithstanding the provisions of Section 55601, every processor who purchases livestock for slaughter shall make full payment of such livestock, by the transfer of collected funds to the seller’s account, within two business days from the delivery of such livestock to the processor.
For purposes of this section, “business day” means any day which is a business day under the provisions of Section 9 of the Civil Code.
Notwithstanding Section 55461, on or before January 31 of every year, every processor who crushes grapes in this state shall furnish to the secretary, on forms provided by the secretary, a report that includes all of the following:
The total number of tons of grapes purchased by the processor in this state during the preceding crush within each grape-pricing district, broken down by total tons purchased, variety, and price, including any bonuses or allowances, and sugar calculations.
The total number of tons of grapes purchased by the processor in this state in nonrelated purchases during the preceding crush within each grape-pricing district, broken down by total tons purchased, variety, and price, including any bonuses or allowances, and sugar calculations.
The total number of tons of each variety of grape crushed within each grape-pricing district and the average sugar content of each variety within each grape-pricing district.
The total number of tons of grapes purchased and crushed that are expected, as of the date of reporting by the processor, to be marketed as grape concentrate. In reporting tons purchased and crushed that are expected to be marketed as grape concentrate, processors may estimate equivalent tonnage. In estimating the equivalent tonnage, the processor shall include all equivalent tons crushed for the production of grape concentrate for wine and all other purposes marketed outside the state and the equivalent tons crushed for the production of grape concentrate for all purposes other than wine marketed within the state. In determining the estimated equivalent tons, processors shall make their best estimate of the gallons of concentrate per ton of grapes crushed based upon the Brix level of the grapes used in concentrate production.
When reporting price within the category of all tonnage purchased, processors shall include grapes purchased from (i) growers for wine, wine vinegar, juice, concentrate, and beverage brandy, (ii) another processor only if that processor was also the grower of the grapes, (iii) growers that are considered separate entities from the processor operation, or (iv) growers or other processors, but not by the reporting processor; and shall exclude (i) material other than grapes, and defects, or other weight adjustments deducted from the gross-weight ticket, (ii) any raisin-distilling material, (iii) grapes grown by the processor from vineyards that are not considered separate entities, (iv) grapes purchased from other processors that were previously purchased from growers, or (v) grapes crushed to grower accounts or crushed for other wineries. If several varieties were packaged together and purchased for one price, the processor shall report the average price per ton as one mixed lot, and when reporting crush information, shall report individual variety and tonnage information.
When reporting price within the category of nonrelated purchases, processors shall exclude tonnage of grapes purchased from a grower if, during the reporting year (i) the grower or an affiliate of the grower, or both the grower and the affiliate of the grower, owned, directly or indirectly, at least 5 percent of the indicia of ownership or voting authority of the processor, (ii) the processor or an affiliate of the processor, or both the processor and the affiliate of the processor, owned, directly or indirectly, at least 5 percent of the indicia of ownership or voting authority of the grower, or (iii) the processor or an affiliate of the processor, or both the processor and the affiliate of the processor, provided long-term financing to the grower in exchange for rights or options to purchase a significant portion of the grower’s harvest.
On or before February 25 of every year, each processor who crushes grapes in this state shall furnish to the secretary information concerning the final prices, including any bonuses or allowances, paid by variety and grape-pricing district to all growers holding reference price contracts in effect before January 1, 1977, which payments have not been reported on January 31.
The secretary may not release or otherwise make available any information furnished by an individual processor under this section, except in proceedings brought against the processor by the secretary for the purpose of enforcing this section, or except in the case of a producer who holds any reference price-grape purchase contract, to whom the secretary may furnish, upon request and at a reasonable cost, the information needed to verify the reference price, including any bonuses or allowances, set forth in the contract.
The secretary shall not release or otherwise make available any information furnished by an individual processor under this section to any other division of the department except in accordance with a subpoena issued in accordance with Section 1985.3 of the Code of Civil Procedure.
The secretary shall release only aggregate figures for grapes crushed that are expected to be marketed as grape concentrate and shall not include information by district, types, or variety.
The secretary shall enforce the collection of the information and, on or before March 15 of each year, shall publish a preliminary summary report on the preceding crush. The report shall include all of the following information:
Commencing with the report for the 1997 crush, in a separate and independent table without affecting or modifying existing tables, by weighted average price only, nonrelated purchases, by variety within each grape-pricing district excluding any bonuses, allowances, sugar calculations, and tonnage.
On or before April 30 of each year, the secretary shall publish a final summary report, which shall contain all of the data furnished by the processors on or before January 31 and on or before February 25 of each year covering purchases under reference price contracts. The secretary may publish an addendum or supplemental report when reasonably necessary to correct any erroneous or misleading information contained in the annual report required by this section.
The forms provided to processors by the secretary pursuant to this section shall provide for the separate reporting of grapes used by a processor (1) as distilling material and (2) for both beverage brandy and other than beverage brandy. A processor shall report all grapes used as distilling material by variety. The secretary, in determining the weighted average price paid for each grape variety purchased within each grape-pricing district, shall not include the prices paid for grapes of any variety used as distilling material for other than beverage brandy in determining the weighted average price. The secretary’s report shall include a separate summary regarding grapes used by processors as distilling material.
All grape purchase contracts entered into on or after January 1, 1977, shall provide for a final price, including any bonuses or allowances, to be set on or before the January 31 following delivery of the grapes purchased. Any grape purchase contract entered into in violation of this subdivision is illegal and unenforceable. For the purpose of this section, a grape purchase contract shall not include any existing supply contract between a nonprofit cooperative association and a commercial processor.
If the department reasonably believes that a processor has failed, refused, or neglected to provide the information required by this section, or if the department finds apparent discrepancies in the information reported, the department may audit or investigate in accordance with Article 11 (commencing with Section 55721) or proceed in accordance with Article 5 (commencing with Section 55521), except as specified in paragraph (6). Injunctive relief under Section 55921 shall issue only upon a finding by a court of competent jurisdiction that a processor has done any of the following:
Refused to submit required information after the department provides reasonable notice to the processor of the processor’s obligations and rights under this chapter.
Misreported a fact, knowing that fact to be false, or in reckless disregard for whether the fact was true.
Both the refusal to submit after the provision of reasonable notice and the misreporting of a fact under the circumstances set forth in this subdivision shall constitute violations of this chapter. Neither a refusal to submit nor a misreporting of a fact under this subdivision shall be prosecuted pursuant to Article 18 (commencing with Section 55901) or subject to civil penalties under Article 19 (commencing with Section 55921).
In the case of misreporting in any action authorized by this section, it shall be a defense for a processor to rely on information provided to the processor by a producer with respect to whether a purchase is a related purchase.
In the case of a refusal to report or misreporting, the department shall not commence an audit or investigation, other than a routine audit based on scientifically proven random sampling methods, without first disclosing to the processor being audited or investigated any and all information that constitutes the department’s belief that the processor has not complied, including the identities of all persons providing information on potential violations to the department.
Anonymous complaints, unattributable information, or undocumented information shall not constitute reasonable belief and shall not be the basis for any investigation or audit action brought under this section. The department shall inform the processor of its reasons for auditing.
For purposes of this section, the following definitions shall apply:
Gallons of concentrate (approximately 20 degrees Brix) produced divided by 40 equals equivalent tons.
Gallons of concentrate (approximately 68 degrees Brix) divided by 170 equals equivalent tons.
To provide funds to carry out Section 55601.5, each processor who crushes more than 100 tons of grapes in California shall pay to the secretary the amount determined by the secretary to be necessary to cover these costs, but not to exceed ten cents ($0.10) per ton of grapes received for crushing, fresh weight equivalent, during each marketing season beginning July 1 and ending the following June 30. However, five cents ($0.05) per ton of grapes received for crushing, or one-half of the fee if the fee is less than ten cents ($0.10), shall be paid by the processor who crushes grapes and five cents ($0.05) per ton of grapes received for crushing, including any grapes produced by the processor, or one-half of the fee if the fee is less than ten cents ($0.10), shall be paid by the processor who crushes grapes and may be deducted from moneys owed to the producer.
The amount of the fee shall be paid to the secretary on or before January 31 of each year on all grapes received for crushing through December 15. The amount of the fee on grapes received for crushing after December 15 shall be paid to the secretary on or before June 30 of that marketing season.
The secretary may fix the fee at a lesser amount and may adjust the fee from marketing season to marketing season.
A processor who crushes grapes who fails, neglects, or refuses to pay the required fee shall be in violation of this chapter. A processor who crushes grapes shall not be entitled to pass the penalty on to the producer of the grapes.
If the secretary conducts an acreage survey pursuant to Section 55613, the secretary may increase the fee charged pursuant to subdivision (a) by not more than four cents ($0.04) per ton of grapes received for crushing, fresh weight equivalent, to cover costs of the survey. The same ratio of payment between processor and producer shall be maintained if the fee is increased pursuant to this subdivision.
The fee authorized by subdivision (a) for the reports required to be prepared by the secretary pursuant to Section 55601.5 and the increase in that fee authorized by subdivision (e) for the survey authorized by Section 55613 shall be established by the secretary so as to generate only the amount of revenue that the secretary reasonably anticipates will be needed to cover the cost incurred by the secretary in gathering and producing the reports required by Section 55601.5, in conducting the survey authorized by Section 55613, and in conducting related enforcement activities. The funds generated by the fees authorized by this section shall be used only for the purpose of gathering the information and producing the reports required to be prepared by the secretary pursuant to Section 55601.5 and conducting the survey authorized by Section 55613.
All moneys received under this section shall be deposited into the State Treasury to the credit of the Department of Food and Agriculture Fund.
Notwithstanding Section 55461, every processor who handles freestone peaches for freezing and drying in California shall furnish to the director, on or before December 10 of each year, and every processor who handles walnuts, raisins, or prunes in California annually shall furnish to the director, on or before August 31 of each year, on forms provided by the director, the reporting information specified below showing the number of tons purchased by the processor in that marketing season. In the report, the tonnage shall be broken down by at least major varieties and weighted average price paid for the tonnage acquired (including any bonuses or allowances) and may contain other information required by the director, including, but not limited to, the following:
For walnuts, including inshell acquisitions and shelling stock acquisitions, the color, size, percentage of edible yield, and percentage of offgrade.
For raisins, the percentage of mold, moisture content, sand, offgrade, or micro-organisms on offgrade acquisitions.
For prunes, by size and percentage offgrade.
For freestone peaches, by type of utilization on a fresh weight basis and percentage of offgrade.
The above reporting shall be on a statewide basis.
The secretary shall not release, or otherwise make available, any information furnished by a cooperative or an individual processor under Section 55601.7 or this section, including information relating to the weighted average prices paid, except in proceedings brought against the processor by the secretary for the purpose of enforcing this section.
The secretary shall (1) enforce the collection of the information required in Section 55601.7, (2) on or before January 15, publish a summary report for freestone peaches used for freezing and drying and, (3) on or before October 20, publish a summary report for walnuts, raisins, and prunes, reflecting the statistics derived from the processor reports. The summary reports shall include summaries of all information required to be furnished to the secretary.
The secretary may dispense with the reporting requirements and his or her duties to enforce the collection of this information and the publishing of summary reports if the secretary determines that the same or similar information is made public information within the same time periods of subdivision (b) by any federal or state committee or organization responsible for regulating the handling of any of the commodities subject to this section.
To provide funds to carry out Section 55601.7 and this section, each processor, including agricultural cooperatives, subject to these reporting requirements shall pay to the secretary the amount determined by the secretary to be necessary to cover these costs, but not to exceed twelve cents ($0.12) per fresh ton for freestone peaches, twelve cents ($0.12) per dry ton for raisins and prunes, and twelve cents ($0.12) per inshell dry ton for walnuts handled by the processor during each marketing season.
The amount of the fee for freestone peaches used for freezing and drying shall be paid to the secretary on or before December 10 for all freestone peaches used for freezing and drying received from April 1 through November 30.
The amount of the fee for any freestone peaches used for freezing and drying received from December 1 to March 31, inclusive, shall be paid to the secretary on or before May 1 of the next marketing season.
The amount of the fee shall be paid to the secretary on or before May 1 of each year for all other commodities received from September 1 to March 31, inclusive.
The amount of the fee for any other commodity received from April 1 to August 31, inclusive, shall be paid to the secretary on or before September 1 of the next marketing season.
The secretary may fix the fee at a lesser amount and may adjust the fee from marketing season to marketing season. Any processor who fails, neglects, or refuses to pay the required fee is in violation of this chapter. Any such processor shall not pass the penalty on to the producer of the commodity.
All funds received under this subdivision shall be deposited in the State Treasury to the credit of the Department of Food and Agriculture Fund.
If the secretary finds that any processor has failed, refused, or neglected to provide the information required by this section, the secretary may proceed in accordance with Article 11 (commencing with Section 55721).
Any cooperative subject to the reporting provisions of this section shall, in lieu of reporting prices, report all advances and other payments made as of the reporting date and its good faith estimate of the market value of the commodity for the crop year.
The willful failure of any processor to report to the secretary, as required by this section, is a violation of this chapter and is a separate and distinct violation of this chapter for each day the processor fails to meet the reporting requirements.
For the purpose of Section 55601.7 and this section, “marketing season” means the crop year that runs from September 1 to August 31, inclusive, for walnuts, raisins, and prunes, and the crop year that runs from April 1 to March 31, inclusive, for freestone peaches.
Every processor except a licensed winegrower, that purchases for freezing any farm product from the producer of the farm product on a packout basis shall promptly upon completion of the processing of each lot or day’s delivery inform the producer of the results obtained.
If a specific grade or quality is a condition of a packout basis contract between the producer and the processor, such grade or quality shall be determined at the completion of the processing.
Every contract between a processor and a producer which covers the purchase of any farm product on a packout basis shall designate the price to be paid for each grade purchased.
Where the processor is operating under continuous United States Department of Agriculture inspection, the United States Department of Agriculture grade determination shall be accepted as final in accounting to the producer.
Where the processor is not operating under continuous United States Department of Agriculture inspection, any dispute as to grade shall be settled by lot inspection to be made by the United States Department of Agriculture. In the event any lot is shipped within 30 days of processing, the processor shall draw representative samples in accordance with United States Department of Agriculture sampling procedures, and the samples shall be held for a period of not less than 30 days from the date of processing for the inspection if necessary.
The provisions of Section 55581 of the Agricultural Code and Section 12713 of the Business and Professions Code do not apply to farm products purchased and accounted for on a packout basis, pursuant to this section.
Every processor, except a licensed winegrower, that receives any farm product from the producer of the farm product for processing on a consigned basis shall promptly make and keep a correct record which shows in detail all of the following with reference to the processing, handling, storage, and sale of such farm product:
The name and address of the consignor.
The date received.
The quantity received.
The size of the containers into which the finished product is packed.
The grade and quality of the finished product.
The price which is obtained from the sale of the finished product.
An itemized statement of costs and charges which the processor paid in connection with the processing, handling, storage, and sale of the farm product. Any services rendered for which charges are made, if not filed with the director, shall be charged at cost, if not covered by a written contract. Cost-supporting data shall be available for verification.
If the processor has entered into a contract with two or more producers or consignors, which provides that the returns for any farm product which is handled and sold for the account of such producers or consignors shall be pooled on a definite basis as to grade or quality, or both, during a specific period of time, then the processor shall render a true account of sale which shows the net average pool return on each grade and quality from the sales that are made, which shows in detail all charges in connection with the handling, processing, and selling of such farm product. The processor shall keep a correct record of such sales and charges.
Every processor shall keep accurate books and records which show the name and address of any producer that is selling and making delivery of any farm product to him, including the dates of deliveries, the quantities of the farm product which is delivered, and the agreed price to be paid for such farm product. If no agreed price has been arrived at, or a method for determining it agreed upon, such agreed price shall be considered the value of such product as of date of delivery. For the purpose of ascertaining such value and in addition to other evidence, reference may be had to price quotations from the federal-state market news service.
Accurate grading and weight receipts shall be given by all processors to each producer, or his agent, upon each and every delivery. Each receipt shall state all of the following:
The date of the receipt.
The name and address of the producer.
The name of the processor.
Not later than five days after demand, the processor shall give to every such producer so requesting a full and complete statement of such producer’s account, which shows all of the following:
The entire quantities of the product which has been delivered by the producer.
The grades of the product which has been delivered by the producer.
The amount which is owing for every lot and for the total amount of the product which has been delivered by the producer.
Remittance in full of the amount which is realized from such sales, including all collections, overcharges, and damages, less the agreed commission and other charges, together with a complete account of sales, shall be made to the consignor within 10 days after receipt of the moneys by the consignee, unless otherwise agreed in writing.
The burden of proof is upon the consignee to prove the correctness of his accounting as to any transaction which may be questioned.
A processor, in order to prevent loss or economic waste, may resell or redeliver any raw product purchased and received from the producer of the raw product to another processor for the purpose of processing and such act is not an act which requires licensing pursuant to Chapter 7 (commencing with Section 56101) of this division. The processor who resells or redelivers any raw product remains liable to the producer for the full value of the raw product.
All records required to be kept under this chapter shall be kept for a period of four years.
If the secretary determines by February 1 of any year, commencing in 1992, that an acreage survey of the grape crop is desired by the processors and producers of grapes for wine, and if the producers and processors of grapes for raisins and the producers and packers of grapes for fresh market use agree to pay their proportionate share of the cost of the survey, as determined by the secretary, the secretary shall conduct the survey. The secretary shall implement subdivision (e) of Section 55601.6 to fund the wine industry’s proportionate costs of the survey. If an acreage survey is conducted, the results of the survey shall be printed and made available on or before May 30 of the year in which it is conducted.
The department shall reimburse any processor or producer of grapes for wine to cover the costs incurred by any of those persons to fund the wine industry’s proportionate share of an acreage survey in 1991, from funds collected pursuant to subdivision (e) of Section 55601.6.
For purposes of this section, “acreage survey” means an accumulation of plant removals, new plantings, and graftings to provide reliable information on the changing character of the state’s grape industry. This information shall be tabulated for each county and on a statewide basis and for each variety of grapes.
ARTICLE 9. Producer’s Lien [55631. - 55653.]
Every producer of any farm product that sells any product that is grown by him or her to any processor under contract, express or implied, in addition to all other rights and remedies that are provided for by law, has a lien upon that product and upon all processed or manufactured forms of that farm product for his or her labor, care, and expense in growing and harvesting that product. The lien shall be to the extent of the agreed price, if any, for that product so sold. If there is no agreed price or a method for determining the price that is agreed upon, the extent of the lien is the value of the farm product as of the date of the delivery. Any portion of that product or the processed or manufactured forms of that product, in excess of the amount necessary to satisfy the total amount owed to producers under contract, shall be free and clear of that lien.
Every producer of a flower, agricultural, or vegetable seed that sells seed that is grown by him or her, when the seed was purchased or supplied by the grower and not supplied by the dealer or an independent third party who paid for the seed, to any seed dealer under contract, express or implied, in addition to all other rights and remedies that are provided for by law, has a lien upon that product and upon all processed or manufactured forms of that product for his or her labor, care, and expense in growing and harvesting that product. The lien shall be to the extent of the agreed price, if any, for that product so sold. If there is no agreed price or a method for determining the price that is agreed upon, the extent of the lien is the value of that product as of the date of the delivery. Any portion of that product or the processed or manufactured forms of that product, in excess of the amount necessary to satisfy the total amount owed to producers under contract, shall be free and clear of that lien.
Notwithstanding Section 55461, a nonprofit cooperative association acting as a producer bargaining association may assert producer’s lien rights for, or on behalf of, its members.
This producer’s lien attaches on all of such delivered product from the date of delivery of such farm product or any portion of it by a producer to any processor.
The producer’s lien is a preferred lien prior in dignity to all other liens, claims, or encumbrances except the following:
Labor claims for wages and salaries for personal services which are rendered by any person to any processor in connection with such processing business after the delivery of any such product for processing.
The lien of a warehouseman as provided by Division 7 (commencing with Section 7101) of the Uniform Commercial Code.
Every lien which is provided for in this article is on every farm product and any processed form of the farm product which is in the possession of the processor without segregation of the product. For purposes of this chapter, any and all farm products or processed form of farm products deposited by a processor with a warehouse, whether or not warehouse receipts are given as security to a lender, shall be considered as being in the possession of the processor and subject to the lien.
The lien of a producer, unless sooner released by payment or by security which is given for the payment as provided in this article, attaches from the date of delivery of the product, or if there is a series of deliveries, it attaches from the date of the last delivery.
If suit is commenced by any such producer to enforce any lien, such lien shall remain in effect until one of the following occurs:
The payment of the agreed price or the value of such product.
Deposit of the amount of the lien or claims with the clerk of the court in which any such action is pending.
The final determination of such court proceeding.
Any lien on any product or processed product may, however, be released, to the extent the value of the claim upon such product is secured, by a surety bond or a cash deposit or other security given as provided in this article. Any producer may also release any lien which is possessed by him upon payment being made to him for the agreed or reasonable value of the product which is so sold and delivered, or upon arrangements being made for such payment which are satisfactory to the producer.
It is unlawful for any processor to remove, from this state or beyond his ownership or control, any farm product which is delivered to him, or any processed form of the farm product, to which any of the liens provided for in this chapter has attached, except for any of such product or processed product as may be in excess of a quantity on hand which is of a value that is sufficient to satisfy all existing liens. Furthermore, this section shall not prohibit the sale of any farm product or processed form of the product to which such a lien has attached, so long as the total proceeds of the sale are used to satisfy obligations to producers which are secured by a lien established pursuant to this chapter.
The director, within 15 days of the filing of a verified complaint by a producer, shall investigate any charge that a purchaser of a farm product to which a lien has attached has removed any farm product, or any processed form of a farm product, in violation of Section 55638.
Any processor that desires to secure a release of any or all of such liens on any product or processed product may do so in any of the following ways:
By paying the agreed or actual value of any farm product which is purchased by such processor within 20 days from the date of delivery of the farm product unless the date of payment is otherwise agreed upon in writing or such payment is secured other than by lien.
By depositing with the director a surety bond which is executed by such processor as principal and by a surety company which is qualified and authorized to do business in this state as surety in an amount which equals the current market value of the product or processed product which is intended by such processor to be sold or otherwise disposed of, as such value may appear by the sworn statement of such processor in accordance with quotations from the federal-state market news service or other evidence which is satisfactory to the director. The bond shall be conditioned that if the processor fails to pay up to the amount of such bond the lawful claims of all producers whose liens have been released by the bond, within 35 days after date of the bond, the surety shall be liable to and shall pay to the state on behalf of such claimants all such lawful claims as may be covered by the amount of the bond, together with costs of suit if an action is filed on the bond.
By depositing with the director a cash sum in lawful money of the United States which is expressly set apart by an instrument in writing that is signed by the processor for the purpose of guaranteeing to the extent of such sum, payment of all existing claims of producers whose liens are released by the deposit, within 35 days from the date of such deposit. The director shall be named in such instrument as trustee to carry out the purpose and intent of the instrument.
By designating, setting apart, and depositing in a public warehouse a quantity of any processed farm products and indorsing over to the director and delivering to him the warehouse receipt for such products for the purpose of guaranteeing to the extent of the value of such deposit, payment within 35 days from the date of such deposit, all existing claims of producers and labor claimants whose liens are released by it.
By securing a release from the director after payment in full for such farm product.
If all lawful claims of the producers have been paid in accordance with this article by any processor, any product which is released by such action may be sold, transported, or otherwise disposed of.
If a bond, cash deposit, or security is given to the director by any processor as provided in this article, such processor may sell, transport, or otherwise dispose of the product or processed product to the value which is represented by such security as such value may appear by the sworn statement of such processor in accordance with quotations from the federal-state market news service or other evidence satisfactory to the director.
The director may accept such bond, if approved by him, and such other security. If the claims or any of them are not paid in accordance with the condition of such security, the director may, on proof being made to his satisfaction of the amounts which are due such claimants, pay all such unpaid claims insofar as possible out of the deposit money, or proceeds from any sale made by him of any securities or processed products which are given as security.
If a bond has been given as security, the director shall notify the principal and surety of any default on the part of the principal under the bond, and make demand for payment on behalf of such unpaid claimants. If payment is not made, the director may take any legal action he may deem necessary to enforce payment under such bond.
If the director has received warehouse receipts for any processed product as security, and the processor giving them has failed to pay the claims in accordance with the terms of such security, the director may sell such security with or without notice, and in such manner as he shall determine.
All claims in relation to payment shall have equal standing and payment shall be prorated if necessary among the claimants.
This article does not prevent the director if in his opinion the rights of all of the claimants are fully protected, as provided for in this article, from issuing a certificate in the name of the department and signed by him which releases any specific lot or quantity of any product or processed product from all liens of the claimants. No security which is held by the director shall, however, be released by him to any processor unless and until it is made to appear to his satisfaction that all claims have been fully paid, or that the rights of all of the claimants are fully protected.
A fee of five dollars ($5) shall be paid to the director for issuing any certificate or release which is provided for in this section.
This article does not impair or affect the right of any claimant that possesses a lien to maintain a personal action to recover such debt against a processor, either in an action to foreclose his lien or in a separate action. He is not required to state in his affidavit to procure an attachment that his demand is not secured by a lien.
The judgment, if any, which is obtained by the plaintiff in such personal action, or personal judgment which is obtained in such lien action, does not impair or merge any lien right or claim which is held by such plaintiff. Any money, however, which is collected on the judgment shall be credited on the amount of such lien or claims in any action which is brought to enforce the lien or in any action which is filed pursuant to this article by the director.
In an action that is filed by any such lien claimant, the defendant processor may file with the court in which the action is pending a surety bond in an amount that is sufficient to cover the demand of plaintiff’s complaint, including the costs, whereupon the court may order the release of a portion or the whole of any product or processed product upon which the lien of plaintiff has attached.
Such processor may also, on motion duly noticed, introduce evidence to the court before whom any such action is pending to the effect that he has sufficient security or money on deposit with the director to protect the lien or other rights of plaintiff. If he does so, the court may order the release of a portion or the whole of such product upon which the lien of plaintiff is attached, and deny to plaintiff any recovery in such action. Such action by the court does not, however, prejudice any other rights or remedies which are possessed by the plaintiff.
The plaintiff in an action which is brought to foreclose any of the liens which are provided for in this article may, in a proper case, and upon proper allegations, secure an injunction against the processor in accordance with the provisions of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure to restrain the doing of any acts on the part of such processor which are designed to or which would, in effect, remove any processed product in his possession or under his control and upon which valid liens exist, beyond the process of the court, to plaintiff’s injury.
If in a court proceeding to foreclose such lien, it is found and determined by the court that there is no cash, bond, or other deposit placed with the director as security for the payment of any of the lien claims as set out in the complaint, the judgment of foreclosure shall be against a sufficient quantity in value of such farm product or processed product in the possession or under the control of the defendant processor, as may be necessary to satisfy such claim or render judgment and declare forfeited any bond which is deposited in the court by such processor to secure the lawful claims of the plaintiff as determined by the court.
All actions filed by the director or producers against any processor for the foreclosure of the liens or other security which are provided for in this article may be consolidated by the court and all persons that are necessary to a determination of such action may be made parties to such actions. Any judgment which is rendered shall determine the lawfulness of the amount of each claim as represented by the pleadings.
ARTICLE 10.5. Liens on Livestock Sold or Delivered to Meatpackers [55701. - 55704.]
As used in this article, the following definitions shall apply:
“Livestock” means any cattle, sheep, swine, goat, or any horse, mule, or other equine, whether living or dead.
“Meatpacker” means an establishment where livestock are either slaughtered, the carcasses thereof are prepared, or meat is processed and where state or federal inspection is maintained.
Except as otherwise provided in this section, any person who sells or furnishes livestock to a meatpacker, shall have a lien, not dependent upon possession, on the livestock and upon the identifiable proceeds and products thereof, for the unpaid part of the purchase price, or for the unpaid value of the livestock at the time of the transfer of possession if no purchase price has been agreed upon. The lien shall commence on the date of the transfer of possession of the livestock to the meatpacker and shall have priority over all other liens upon, and security interests in, the livestock and the identifiable proceeds and products thereof, without regard to the time of attachment or perfection of such other liens or security interests and shall remain a lien upon the livestock and the identifiable proceeds and products thereof notwithstanding sale, exchange, or other disposition thereof.
Notwithstanding the provisions of subdivision (a), a buyer in the ordinary course of business, as that term is defined in paragraph (9) of subdivision (b) of Section 1201 of the Commercial Code, shall take free of such lien even though the buyer knows of the existence of the lien.
Notwithstanding the provisions of subdivision (a), the lien shall cease to be of any force or effect after the expiration of 21 days from the date of delivery of the livestock unless a notice of lien is filed pursuant to subdivision (e), in which case the lien shall remain effective as long as such notice shall remain effective.
No person shall have a lien pursuant to subdivision (a) to the extent that the person shall have made the livestock available to the meatpacker on credit terms.
Any person selling or delivering livestock who claims a lien under this article shall file a statement with the Secretary of State and a copy thereof with the director, both within 21 days after delivery of the livestock to the meatpacker. The statement shall be in writing, verified by the oath of the person filing, and shall contain all of the following:
The name and address of the person filing.
A statement of the amount demanded by the person filing the statement after deducting all credits and offsets.
The name and address of the meatpacker who received the livestock.
A description of the livestock delivered to the meatpacker and the date of delivery.
A statement that the amount claimed is a true and bona fide existing debt as of the date of the statement.
A statement that the amount claimed is a true and bona fide existing debt as of the date on which payment was due for the livestock.
Every statement that is filed shall be accompanied by the fees required by Chapter 5 (commencing with Section 9501) of Division 9 of the Commercial Code in the case of a financing statement not on the standard form and shall remain effective for a period of five years from the date of filing.
Except as provided in this section, any lien created under Section 55702 shall continue in force for a period of five years from the date of filing of the notice of lien. The lien shall cease at the expiration of five years unless the claimant thereof, or his assignee, or successor in interest, brings suit to foreclose the lien, in which case the lien continues in force until such lien foreclosure suit is finally determined and closed. If such foreclosure proceeding is not prosecuted to trial within two years after the commencement thereof, the court may in its discretion dismiss the foreclosure suit.
The plaintiff in any such lien foreclosure suit may have the property upon which such lien subsists attached, as provided in the Code of Civil Procedure.
Any number of persons claiming liens under this article may join in the same action and when separate actions are commenced, the court may consolidate them. Whenever the sale of the property subject to any lien or liens provided for in this article, under the judgment or decree of foreclosure of such lien or liens, results in a deficiency of proceeds, the proceeds shall be divided pro rata among the lien claimants whose liens are established, regardless of the order in which the liens were created or the order in which the suits to foreclose same were commenced, and the judgment or decree for the deficiency may be docketed against the party personally liable therefor and his sureties, in the same manner and with the same effect as in actions for the foreclosure of security interests.
Nothing contained in this article shall be construed to impair or affect the right of any person to whom any debt may be due for livestock sold or delivered to maintain a personal action to recover such debt against the person liable therefor, or his sureties, either in connection with a suit to foreclose the lien or in a separate action. Any person bringing such personal action may take out a separate attachment therefor, notwithstanding his lien or the amount of his debt. In the affidavit to procure an attachment pursuant to such personal action, such person shall state that the attachment is made pursuant to this section, and the judgment, if any, obtained by the plaintiff in such personal action shall not be construed to impair or merge any lien held by such person under this article. Any money collected on such personal judgment shall be credited on the amount of such lien in any action brought to enforce the lien.
Any rights or remedies granted to a person who sells livestock pursuant to this article, are in addition to any other rights or remedies provided by law for such seller.
ARTICLE 11. Examinations and Audits of the Books and Records of Licensees [55721. - 55725.]
If, in the opinion of the department, there appears to be reasonable grounds for investigating a complaint or notification made under the provisions of this chapter, the department shall investigate the complaint or notification. In the course of the investigation, if the department determines that violations of this chapter are indicated other than alleged violations specified in the complaint or notification that served as the basis for the investigation, the department may expand the investigation to include the additional violations.
In the opinion of the department, if an investigation substantiates the existence of violations of this chapter, the department may cause a complaint to be issued.
The investigation may include, but shall not be construed to require, examinations and audits of the books and records of any processor that pertain to the solvency of the processor of, or to the purchase of, or to the handling and accounting for, any farm product that is purchased or received on a pack-out or other basis from the producer of the farm product. The department may examine and audit all pertinent books, records, weight certificates, receipts, ledgers, journals, papers, contracts, bank statements, canceled checks and other documents of the processor that show or tend to show facts regarding the financial condition and the number and status of accounts of growers and others that are doing business with the processor.
If the examination discloses evidence of any violation of this chapter, the department may issue a complaint detailing the charges and the discipline sought in accordance with this chapter.
An aggrieved grower or licensee with a complaint that is not subject to the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181 et seq.) or the federal Perishable Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.) may seek resolution of that complaint by filing a complaint with the department within nine months from the date a complete account of sales was due. The complaint shall be accompanied by two copies of all documents in the complainant’s possession that are relevant to establishing the complaint, a filing fee in the amount specified in the fee schedule set forth in paragraph (2), and a written denial of jurisdiction from the appropriate federal agency unless the commodity involved clearly does not fall under either the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181 et seq.) or the federal Perishable Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.). Within five business days of receipt of a signed and verified complaint, the filing fee, and the denials of federal jurisdiction, the department shall serve the verified complaint on the respondent. Service shall be by certified mail. The department, the secretary, the department’s employees, the department’s agents, the boards and commissions associated with the department, their employees or agents, and the State of California are not parties to the dispute in a proceeding brought under this section.
The complaint filing fee schedule shall be as follows:
For complaints alleging an amount due of less than one hundred thousand dollars ($100,000), the filing fee shall be two hundred dollars ($200).
For complaints alleging an amount due of one hundred thousand dollars ($100,000) or more but less than two hundred fifty thousand dollars ($250,000), the filing fee shall be three hundred dollars ($300).
For complaints alleging an amount due of two hundred fifty thousand dollars ($250,000) or more, the filing fee shall be five hundred dollars ($500).
The respondent served shall answer within 30 calendar days of service. The respondent’s response shall include two copies of all relevant documentation of the transactions referred to in the verified complaint.
Within 30 calendar days of receipt of the answer, the department shall issue to both parties a written factual summary on the basis of the documents that have been filed with the department.
If a settlement is not reached within 30 calendar days after the department’s summary is issued, the department, on request of the claimant or respondent and upon payment of a filing fee of three hundred dollars ($300), shall schedule alternate dispute resolution, to commence within 90 calendar days. The department shall serve both parties with a notice of hearing, which sets out the time, date, street address, room number, telephone number, and name of the hearing officer. Service of the notice of hearing shall be by certified mail.
The alternate dispute resolution shall proceed as follows:
The hearing shall be conducted by hearing officers in accordance with standard procedures promulgated by the American Arbitration Association or other acceptable alternative dispute resolution entities.
The hearing officers shall be familiar with the type of issues presented by those claims, but need not be attorneys.
The sole parties to the proceedings shall be the complainant and the respondent.
The disputes, claims, and interests of the department or the State of California are not within the jurisdiction of the proceedings.
The validity of a regulation of the department or order promulgated pursuant to this code is not within the jurisdiction of the proceedings.
Law and motion matters shall be handled by the assigned hearing officer.
The hearing officer has no authority to enter into settlement discussions, except upon stipulation of the parties involved.
The parties may represent themselves in propria persona or may be represented by a licensed attorney at law. A party may not be represented by a representative who is not licensed to practice law.
To the extent of any conflict between Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code and this article, this article shall prevail.
The hearing officer may order a review of records or an audit of records by a certified public accountant. The review or audit shall be conducted under generally accepted auditing standards of the American Institute of Certified Public Accountants, and upon completion of the review or audit the nature and extent of the review or audit shall be disclosed to the parties by the auditor in the audit report. The audit report shall disclose the number of transactions reviewed and the rationale for selecting those transactions. The department shall advance the costs of the audit or review of records, but the hearing officer shall apportion the costs at the conclusion of the hearing. The department shall pursue repayment in accordance with the hearing officer’s apportionment and may bring an action in a court of competent jurisdiction to recover funds advanced. This subdivision does not require the department to pursue any specific remedy or prohibit the department from accepting a reasonable repayment plan.
The hearing officer shall render a written decision within 60 days of submission of the case for decision. In addition to rendering a written finding as to what is owed by whom on the substantive allegations of the complaint, the hearing officer shall decide whether or not to order the full cost of the alternative dispute resolution proceeding, and in what ratio or order the losing party is to pay the costs of the proceeding. For these purposes, the cost of the alternative dispute resolution proceeding does not include the filing fee, the parties’ attorney fees, or expert witness fees. The hearing officer may also award a sanction against a complainant for filing a frivolous complaint or against a respondent for unreasonable delay tactics, bad faith bargaining, or resistance to the claim, of either 10 percent of the amount of the award or a specific amount, up to a maximum of one thousand dollars ($1,000). Any sanction award shall not be deemed to be res judicata or collateral estoppel in any subsequent case in which either the complainant or respondent are charged with filing a frivolous complaint, unreasonable delay tactics, bad faith bargaining, or resistance to the claim. The department may consider the written decision of the hearing officer in determining any related licensing action. The written decision of the hearing officer may be introduced as evidence at a court proceeding.
This section does not prohibit the parties to the dispute from settling their dispute before, during, or after the hearing.
This section does not alter, preclude, or condition the exercise, during any stage of the proceedings provided by this chapter, of any other rights to relief a party may have through petition to a court of competent jurisdiction, including, but not limited to, small claims court.
Every licensee shall prepare and preserve the accounts, records, and memoranda required by this chapter which shall fully and correctly disclose all transactions involved in his business. Licensees shall keep records which are adapted to the particular business that the licensee is conducting and in each case such record shall fully disclose all transactions in the business in sufficient detail as to be readily understood and audited. Minimum records required under this chapter are:
1. A record of cash received.
2. A record of cash disbursed.
3. A general ledger or its equivalent.
4. A record of amounts due California producers.
5. A record of amounts due others.
Every licensee shall prepare and preserve records and memoranda required by this chapter which shall fully and correctly disclose the true ownership and management of such business.
The failure or refusal of any licensee to produce and make available to the director any books or records requested pursuant to this article, or otherwise to obstruct the examination or audit, is sufficient ground to suspend or revoke the license issued pursuant to this chapter.
ARTICLE 12. Investigations and Hearings [55741. - 55745.]
The department, upon its own motion, may, or upon the verified complaint of any interested party and within 30 days of the filing of that complaint, shall, commence to investigate, examine, or inspect any of the following:
A transaction that involves the failure of the processor to make payment for any farm product within the time that is specified for payment in the contract of sale and purchase between the producer and the processor, in accordance with the terms of the contract or in accordance with this chapter.
A transaction that involves the failure of a processor who contracts to harvest a producer’s crop to fulfill the terms of the contract.
A charge that a processor may be insolvent or in an unsound financial condition.
Except as otherwise provided in Section 55743 or 55744, if the complaint is a bona fide dispute that involves any of the following, the department has no jurisdiction to act upon the complaint if the processor or complainant within 10 days after receiving notice of the filing of the verified complaint has notified the department of his or her election to submit the dispute to alternative dispute resolution procedures in accordance with the provisions of a written contract:
The rejection of any farm product.
The failure or refusal to accept and pay for any farm product that is bought or contracted to be bought from a producer by a processor.
The failure or refusal by the processor to furnish or provide boxes or other containers, or hauling, harvesting, or any other service that is contracted to be done by the processor in connection with the acceptance, harvesting, or other handling of the farm product.
The terms and conditions of the written contract.
The jurisdiction that is otherwise reserved to the department in this chapter, however, is restored for the purposes of this chapter if the authorities responsible for the alternative dispute resolution procedures, without reasonable cause, fail, refuse, or neglect to adjudicate the matter of dispute within 90 days from the date of the notification to the department.
The department also has jurisdiction over any such complaint or dispute if the processor has failed to perform in accordance with any alternative dispute resolution procedure award that is made in accordance with the terms of the written contract.
Any verified complaint filed with the department pursuant to this chapter shall be filed not later than nine months from the date a complete account of sales was due. This period, however, does not include the length of time it takes to secure a written letter of denial from the federal agencies responsible for administering the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181, et seq.) or the federal Perishable Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.).
ARTICLE 14. Contempt [55811. - 55813.]
If any person in any proceedings before the director disobeys or resists any lawful order or refuses to respond to a subpoena, or refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or is guilty of misconduct during a hearing or so near the place of a hearing as to obstruct the proceeding, the director shall certify the facts to the superior court in and for the county where the proceedings are held.
The court shall thereupon issue an order which directs the person to appear before the court and show cause why he should not be punished as for contempt. The order and a copy of the certified statement shall be served on the person. Thereafter the court shall have jurisdiction of the matter.
The same proceedings shall be had, the same penalties may be imposed, and the person charged may purge himself of the contempt in the same way, as in the case of a person who has committed a contempt in the trial of a civil action before a superior court.
ARTICLE 16. Fees [55861. - 55864.]
Except as otherwise provided in this article or in Section 56574, each applicant for a license shall pay to the department a fee in accordance with the schedule in subdivision (b), except that an agent shall pay one hundred dollars ($100) for each license period of the principal.
The amount of the fee due each year from the applicant shall be determined by the annual dollar volume of business based on the value of the farm products that are returned to the grower, as follows:
For a dollar volume of less than twenty thousand dollars ($20,000), the fee shall be two hundred fifty dollars ($250).
For a dollar volume of twenty thousand dollars ($20,000) and over, but less than fifty thousand dollars ($50,000), the fee shall be three hundred fifty dollars ($350).
For a dollar volume of fifty thousand dollars ($50,000) and over, but less than two million dollars ($2,000,000), the fee shall be four hundred fifty dollars ($450).
For a dollar volume of two million dollars ($2,000,000) and over, but less than four million dollars ($4,000,000), the fee shall be five hundred fifty dollars ($550).
For a dollar volume of four million dollars ($4,000,000) and over, the fee shall be six hundred fifty dollars ($650).
The department may reevaluate the fee structure based on operating costs. The fees shall adequately cover the costs to fully administer and operate the program in an effective and efficient manner.
The fees provided by Section 55861 are maximum fees. The secretary may fix those fees at a lesser amount, and may adjust those fees from time to time, whenever the secretary finds that the funds needed to administer this chapter must be adjusted for the sustainability of the program.
If any processor does not apply for the renewal of a preexisting license on or before the date of expiration of the license, a penalty of twenty-five dollars ($25) shall be added to the fee provided for under Section 55861 or 55861.5. That penalty shall be paid within 30 days immediately following the license expiration date . Payment of the penalty shall entitle the applicant to 60 days from the date of the penalty payment to complete the application. If the application is not completed within that time, the application shall be denied and all fees retained by the department.
If the penalty described in paragraph (1) is not paid within the 30-day period, any application for renewal of a preexisting license shall be treated as a new application.
A new applicant shall have 60 days from the date of filing the application form and payment of the fee to complete the application. After the 60-day period has elapsed, if the application remains incomplete, the application may be denied and the application fee may be retained by the department.
In addition to subdivision (a), if any person is found to be operating a business within the past five years without a license required by Section 55521, or failed to pay the fees in accordance with the schedule in subdivision (b) of Section 55861, that person shall pay to the secretary an amount equal to three times that portion of the fees that were not paid for the last five years the business has operated.
Any person that has applied for and obtained a license pursuant to this chapter may apply for and secure a license under Chapter 7 (commencing with Section 56101) by filing an application which is accompanied by a fee determined by the dollar volume of business based on the value of the farm products that is returned to the grower or licensee, as follows:
For a dollar volume of less than fifty thousand dollars ($50,000), the fee shall be fifty dollars ($50).
For a dollar volume of fifty thousand dollars ($50,000) and over, but less than two million dollars ($2,000,000), the fee shall be one hundred forty-five dollars ($145).
For a dollar volume of two million dollars ($2,000,000) and over, the fee shall be two hundred dollars ($200).
This license shall be known as a “conjunctive license.”
Any person who has applied for and obtained a license as agent, in the manner and upon the payment of the fee which is set forth in Section 55861, whose principal has applied for and obtained a conjunctive dealer's, commission merchant's, broker's, or cash buyer’s license, as the case may be, shall be deemed to be licensed to represent his principal under Chapter 7 (commencing with Section 56101) of this division, and no other fee shall be required of such agent.
All fees which are collected pursuant to this chapter shall be paid into the State Treasury monthly and shall be credited to the Department of Agriculture Fund and, except as otherwise provided in Section 55433, shall be expended in carrying out this chapter.
ARTICLE 17. Violations [55872. - 55882.]
It is a violation of this chapter if the applicant, or licensee, has failed or refused to pay for any farm product at the time and in the manner which is specified in the contract with the producer, or as is otherwise provided in this chapter.
It is a violation of this chapter if the applicant, or licensee, has rejected, without reasonable cause, or has refused to accept, without reasonable cause, any farm product which is bought or contracted to be bought from a producer by such applicant or licensee, or failed or refused, without reasonable cause, to furnish or provide boxes or other containers, or hauling, harvesting, or any other service which is contracted to be done by the licensee in connection with the acceptance, harvesting, or other handling of such farm product which is bought or handled or contracted to be bought or handled.
It is a violation of this chapter if the licensee has knowingly employed an agent without causing the agent to comply with the licensing requirements of this chapter which are applicable to agents.
It is a violation of this chapter if the licensee has failed or refused, upon demand, to permit the director or his agents to make the investigations, examinations, or audits as provided in this chapter, or that the licensee has removed or sequestered any books, records, or papers necessary to any such investigations, examinations, or audits, or has otherwise obstructed them.
It is a violation of this chapter if the applicant, or licensee, has otherwise violated any provision of this chapter or Chapter 7 (commencing with Section 56101) of this division.
It is a violation of this chapter if the licensee licensed as a cash buying processor has bought or otherwise taken title to, or possession of, any farm product from the producer of the farm product, except by cash payment to the producer, at the time of obtaining such possession or control, of the full agreed price.
The failure or refusal of a processor to make payment for any farm product within the time which is specified for such payment in the contract of sale and purchase between the producer and the processor, and in accordance with the terms of the contract, is a violation of this chapter.
It is a violation of this chapter if the applicant or licensee has failed or refused to render a true and correct account of sales or make settlement thereon or to pay for farm products received on consignment within the time and in the manner required by this chapter.
It is a violation of this chapter if the licensee or applicant has failed or refused to file with the director a schedule of his charges for services in connection with any farm product which is handled on account of, or as agent for another. Any services rendered for which charges are made, if not filed with the director, shall be charged at cost, if not covered by a written contract. Cost-supporting data shall be available for verification.
Under a contract for the purchase or handling of any farm product, any delinquent payment of money under this chapter shall also include a late charge of 5 percent per month of the unpaid balance calculated on a daily basis for the period of the delinquency for the first month and an additional 1 percent per month of the unpaid balance calculated on a daily basis for the remaining period of the delinquency. Any such late charge shall be payable to the person from whom the farm product was purchased, unless the person waives, in writing, his right to such payment. Such waiver shall be valid and effective only when given after a delinquency has occurred.
This section does not affect the time of payment provided for in this chapter or in any contract for the purchase or handling of any farm product.
It is a violation of this chapter if a licensee fails, neglects, or refuses to collect or remit any assessments that have been levied in accordance with the assessment provisions of Article 10 (commencing with Section 58921) of Chapter 1 or Article 12 (commencing with Section 59941) of Chapter 2 of Part 2 of Division 21, or Article 8 (commencing with Section 64691) of Chapter 2, Chapter 3, (commencing with Section 65500), Article 5 (commencing with Section 66621) of Chapter 4, Article 6 (commencing with Section 67101) of Chapter 5, Article 6 (commencing with Section 68101) of Chapter 6, Article 6 (commencing with Section 69081) of Chapter 7, Chapter 9.5 (commencing with Section 71000), Article 6 (commencing with Section 72101) of Chapter 10, Chapter 12.6 (commencing with Section 74701), Chapter 12.7 (commencing with Section 74801), Article 6 (commencing with Section 75131) of Chapter 13, Article 8 (commencing with Section 75631) of Chapter 13.5, Article 6 (commencing with Section 76141) of Chapter 14, Chapter 15 (commencing with Section 76201), Chapter 16.5 (commencing with Section 77001), Chapter 17 (commencing with Section 77201), Chapter 17.5 (commencing with Section 77401), Chapter 19 (commencing with Section 77701), Chapter 20 (commencing with Section 77901), Article 6 (commencing with Section 78285) of Chapter 21, or Article 6 (commencing with Section 78700) of Chapter 24, of Part 2 of Division 22.
ARTICLE 18. Criminal Penalties [55901. - 55906.]
Except as specified in Section 55902, any misdemeanor which is prescribed by this article is punishable by a fine of not less than five hundred dollars ($500) or more than five thousand dollars ($5,000), by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment.
For a violation of the offense described in subdivision (a), the department may recover investigative costs, excluding attorneys’ fees and administrative overhead, for those charges where there has been a conviction in a court of law, or a court-supervised settlement has been reached. Nothing in this section allows the department to recover investigative costs for an administrative licensing action or any action that has not been filed in a court of law.
Any person or entity responsible for investigative costs under this section shall be allowed to audit the department’s investigative costs. The audit must be performed by a third-party certified public accountant and paid for by the person or entity requesting the audit. The department shall promulgate regulations to implement this subdivision by June 1, 2002.
It is a misdemeanor for any person subject to this chapter to act as a processor or agent without a license, and is punishable by a fine of not less than ten thousand dollars ($10,000), by imprisonment in the county jail for not more than one year, or by both the fine and imprisonment.
It is a misdemeanor for any person subject to this chapter to pay license fees in an amount less than that amount established under subdivision (b) of Section 55861. Any person who pays less than the amount established under subdivision (b) of Section 55861 for two or more consecutive years shall pay to the director treble the amount of the license fees due pursuant to this chapter.
It is a misdemeanor for any person licensed as a cash buying processor to buy or otherwise take title to, or possession of, any farm product from a producer of the product, except by cash payment of the full agreed price to the producer at the time of obtaining possession or control.
It is a misdemeanor for any person that is subject to this chapter to willfully refuse to pay for any farm product which such person purchases within 20 days after the date of the delivery of such product by the producer if he has the ability to pay and demand for payment is made, except in the case of a bona fide dispute, unless the time of payment is otherwise agreed upon in writing, or the payment of the purchase price is secured other than by a lien.
It is a misdemeanor for any person that is subject to this chapter to falsely deny the amount, or the validity, of any producer’s claim, or that it is due, with the intent to secure for himself, his employer or other person, any discount upon such indebtedness, or with the intent to annoy, harass, oppress, hinder, delay, or defraud the person to whom such indebtedness is due.
It is a misdemeanor for any person that is subject to this chapter to sell, hypothecate, sequester with intent to defraud any producer, or in any manner place or attempt to place any product upon which liens in favor of any producer have attached, beyond the control, reach, or recovery of any such claimant.
It is a misdemeanor for any person that is subject to this chapter to fail to comply with this chapter.
ARTICLE 19. Civil Remedies and Penalties [55921. - 55922.]
The director may bring an action to enjoin the violation or the threatened violation of any provision of this chapter or of any order which is made pursuant to this chapter in the superior court in the county in which such violation occurs or is about to occur.
There may be enjoined in one proceeding any number of defendants alleged to be violating the same provisions or orders, although their properties, interests, residences, or places of business may be in several counties and the violations separate and distinct. Any proceeding which is brought pursuant to this section shall be governed in all other respects by the provisions of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure.
Any person that violates any provision of this chapter is liable civilly in the sum of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000) for each violation, to be recovered in an action by the secretary in any court of competent jurisdiction. All sums which are recovered under this section shall be deposited in the State Treasury to the credit of the Department of Food and Agriculture Fund.
The department may recover investigative costs, excluding attorney’s fees and administrative overhead, for those charges where there has been a conviction in a court of law, or a court-supervised settlement has been reached. Nothing in this section allows the department to recover investigative costs for an administrative licensing action or any action that has not been filed in a court of law.
Any person or entity responsible for investigative costs under this section shall be allowed to audit the department’s investigative costs. The audit shall be performed by a third-party certified public accountant and paid for by the person or entity requesting the audit. The department shall promulgate regulations to implement this subdivision by June 1, 2002.
CHAPTER 7. Produce Dealers [56101. - 56652.]
ARTICLE 1. Definitions [56101. - 56110.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Agent” means any person who on behalf of any licensee receives on consignment, contracts for, or solicits for sale on commission, any farm product from a licensee or producer of such product, or who negotiates the consignment or purchase of any farm product on behalf of any licensee.
“Broker” means any person that negotiates the purchase or sale of any farm product. A broker may not, however, handle either the farm product which is involved or the proceeds of a sale.
“Cash” means coin or currency of the United States, and does not include a check or money order.
“Cash buyer” means any person who obtains title to, possession or control of, or buys or agrees to buy any farm product from a licensee or a producer by paying to the seller the full agreed price in cash at the time of obtaining possession or control, or at the time of contracting for title to, or possession or control of any farm product.
“Commission merchant” means any person, as follows:
Who receives on consignment or solicits any farm product from a licensee or producer of the product.
Who accepts any farm product in trust from a licensee or the producer of the product for purposes of sale.
Who sells any farm product on commission.
Who handles any farm product in any way for the account of or as an agent of the consignor of the product. Any person who accepts a farm product from a licensee or the producer of such product for the purpose of sale or resale is a commission merchant, unless the person has bought, or agreed to buy, the farm product by a contract which designates the price to be paid to the seller.
“Consignor” includes any person that ships or delivers to any commission merchant or dealer any farm product for handling, sale, or resale.
“Dealer” means any person who obtains title to, or possession, control, or delivery of, any farm product from a licensee or producer at a designated price for the purpose of resale, or who buys or agrees to buy any farm product from a licensee or the producer of the farm product at a designated price.
“Established place of business” means any permanent warehouse, building, or structure which is owned in fee or leased, at which the owner or lessee carries on a legitimate permanent business in good faith, and at which a stock of any farm product is stored or kept in quantities which are usually carried and reasonably adequate to meet the requirements of the business. It does not mean any tent, temporary stand, or other temporary structure, or permanent structure which is occupied pursuant to a temporary arrangement.
“Farm product” includes every agricultural, horticultural, viticultural, and vegetable product of the soil, poultry and poultry products, livestock products and livestock not for immediate slaughter, bees and apiary products, hay, dried beans, honey, and cut flowers. It does not, however, include any timber or timber product, flower or agricultural or vegetable seed, any milk product that is subject to the licensing and bonding provisions of Chapter 2 (commencing with Section 61801) of Part 3 of Division 21, any aquacultural product, or cattle sold to any person who is bonded under the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181 et seq.).
“Licensee” means any person licensed under this chapter as a broker, cash buyer, commission merchant, or dealer.
“Producer” means any person that is engaged in the business of growing or producing any farm product.
ARTICLE 2. General Provisions [56131. - 56136.]
The marketing of agricultural commodities within this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
The director may publish in pamphlet form as often as he thinks necessary a list of all licensees and agents that are licensed pursuant to this chapter together with all necessary regulations which concern the enforcement of this chapter.
Any money in the Department of Food and Agriculture Fund that was derived pursuant to this chapter or Chapter 6 (commencing with Section 55401) may be expended for the administration and enforcement of these chapters and Chapter 7.2 (commencing with Section 56701), notwithstanding any other law that limits the expenditure of any such money to the specific purposes or to the administration or enforcement of each of the chapters separately.
Except pursuant to an exemption granted by the department, no person licensed under this chapter shall employ any person as an agent, or who previously was an agent, who meets any of the following criteria:
Whose license has been revoked or is currently suspended.
Who has committed any one flagrant or repeated violations of this chapter or Chapter 6 (commencing with Section 55401).
Who failed to pay a producer’s claims for which the person, or, where the person controlled the decision to pay, the person’s employer, was liable, and which arose out of the conduct of a business licensed or required to be licensed under this chapter or Chapter 6 (commencing with Section 55401).
Who has been convicted of a crime that includes as one of its elements the financial victimization of another person.
The department may approve employment of any person covered by subdivision (a) if the licensee furnishes and maintains a surety bond in form and amount satisfactory to the department, but that shall not be less than ten thousand dollars ($10,000), as assurance that the licensee’s business will be conducted in accordance with this chapter and that the licensee will pay all amounts due farm products creditors. The department may approve employment without a surety bond after the expiration of four years from the effective date of the applicable disciplinary order. The department, based on changes in the nature and volume of business conducted by the licensee, may require an increase or authorize a reduction in the amount of the bond, but in no case shall the bond be reduced below ten thousand dollars ($10,000). A licensee who is notified by the department to provide a bond in an increased amount shall do so within a reasonable time to be specified by the department. If the licensee fails to do so, the approval of employment shall automatically terminate. The department may suspend or revoke the license of any licensee who, after the date given in the notice, continues to employ any person in violation of this section.
The department may obtain access to a licensee’s or person’s criminal record during the course of a licensing investigation opened for other reasons or if the department is presented with a reasonable basis to believe a person or licensee satisfies any of the criteria set forth in paragraphs (1) to (4), inclusive, of subdivision (a). The Department of Justice shall furnish criminal record information to the department at the department’s request. If the information thereby obtained reveals a conviction for a crime that includes as one of its elements the financial victimization of another person, the department shall bring this to the attention of the licensee and the person by a written notice. This written notice shall set out the charges against the licensee or person, prohibit employment or revoke or deny the license effective if and when any rights to an administrative hearing have been exhausted, and set out the licensee’s or person’s rights under this section.
The department may grant an exemption on presentation of substantial, clear, and convincing evidence to support a reasonable belief as to any of the following:
There has been a mistake of fact or identity.
The present role of the person provides no opportunity for a repeat of the prior behavior.
The person has been rehabilitated.
All submissions shall be authenticated and verified under penalty of perjury. Unless the licensee or person can prove one of these three elements by substantial, clear, and convincing evidence, the department shall deny the request for exemption.
A licensee or person who has been identified by the department as satisfying any of the criteria set forth in paragraphs (1) to (4), inclusive, of subdivision (a) and who has not been granted an exemption by the department shall be afforded a hearing upon the licensee’s or person’s request under this chapter. The licensee or person shall not have a right of hearing if the department did not notify the employer or deny an exemption.
At the hearing, the department shall have the burden to prove that any of the criteria set forth in paragraphs (1) to (4), inclusive, of subdivision (a) are satisfied by a preponderance of the evidence. It shall be the licensee’s or person’s burden to prove rehabilitation by substantial, clear, and convincing evidence.
In the case of a criminal conviction, “convicted of a crime” includes a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action that the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. For purposes of this section or any other provision of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction.
For purposes of this section or any other provision of this chapter, a certified copy of a decision and order or minutes of court in which a finding is made concerning any of the criteria set forth in paragraphs (1) to (3), inclusive, of subdivision (a), is prima facie evidence of the truth of the charge and collateral estoppel applies.
The documents and information procured pursuant to this section shall be considered the records of a consumer and shall not be construed to be a public record. The documents and information shall remain confidential, except in actions brought by the department to enforce this division, or as a result of the issuance of a subpoena in accordance with Section 1985.4 of the Code of Civil Procedure. The unauthorized release of the documents received from the Department of Justice or the information contained in those documents, is a misdemeanor.
Civil suits and criminal prosecutions which arise by virtue of any provision of this chapter may be commenced and tried in any of the following:
The county where the product was received by the licensee or agent.
The county in which the principal place of business of such licensee or agent is located.
The county in which the violation of this chapter occurred.
The rights, remedies, and penalties that are provided for in this chapter are in addition to any other rights, remedies, or penalties that are provided for by law, and supercede provisions of law in conflict therewith.
Except as otherwise provided in this chapter, Part 2 (commencing with Section 307) of the Code of Civil Procedure is applicable to, and constitutes the rules of practice in, the proceedings that are mentioned in this chapter except as insofar as they are inconsistent with the provisions of this chapter.
If any clause, sentence, paragraph, or part of this chapter is for any reason, adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder of this chapter, but shall be confined in its operation to the clause, sentence, paragraph, or part of this chapter which is directly involved in the controversy in which such judgment is rendered.
No person, other than a corporate officer, licensed and employed as an agent, shall control the business of the licensee, as determined by the director.
For purposes of this section, “control” includes, but is not limited to, possession, either direct or indirect, of the power to direct or cause the direction of the management and policies of the licensee.
Violation of this section shall, after notice and opportunity for hearing, constitute grounds for license revocation of either, or both, the licensee or agent by the director.
ARTICLE 3. Exceptions [56161. - 56162.]
This chapter does not apply to or include any of the following:
Any nonprofit cooperative association organized and operating pursuant to Chapter 1 (commencing with Section 54001), any nonprofit cooperative association organized and operating pursuant to any similar law of any other state, the District of Columbia, or the United States, or the agents of these organizations, except as to the activities of these organizations or agents which involve the handling of, or dealing in, any farm product of a nonmember of the organization.
Any person or exchange that buys, receives, or otherwise handles any farm product as a processor, as defined in Section 55407.
Any retail merchant who has a fixed or established place of business in this state. This exemption does not, however, apply to retail merchants who are also engaged in the business of selling, at wholesale, any farm product purchased from a licensee or producer. This exemption also does not apply to any transaction wherein possession of any farm product is obtained from a licensee or producer, and the farm product is sold to another person without being handled in the regular course of a retail business which is conducted at a fixed and established place.
Any person who buys any farm product for his or her own use or consumption.
Any person licensed as a distributor or handler under Chapter 2 (commencing with Section 61801) of Part 3 of Division 21 who purchases farm products from a dealer, broker, or commission merchant. However, this chapter applies to any such licensed person who purchases farm products from a producer.
Any person licensed as a landscape contractor pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code.
Any person, not otherwise required to be licensed pursuant to this chapter, that buys or otherwise acquires possession of any farm product from, and processed by, a nonprofit cooperative association to which subdivision (a) is applicable.
For the purposes of trading in cattle, any person engaged in the business of buying or selling cattle who is bonded under the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181, et seq.).
This chapter does not apply to any person that buys, receives, or otherwise handles any farm product for human consumption whose business is the distribution or sale of the farm product to persons who regularly operate mobile vehicles, mobile food preparation units, or vending machines on routes and who sell the farm product directly to the consumer. However, this chapter applies to any such person who purchases farm products from a producer.
ARTICLE 4. Licenses [56181. - 56196.]
Except as otherwise provided in Section 55610, any person engaged in the business of buying, receiving on consignment, soliciting for sale on commission, or negotiating the sale of farm products from a licensee or producer for resale shall be licensed as provided in this chapter.
Any person required by Section 56181 to be licensed shall file an application with the director for a license to transact business before engaging in such business. The application shall be accompanied by the application fee which is provided in Article 17 (commencing with Section 56571) of this chapter.
It is unlawful for a licensee that has changed its legal entity to do any of the following:
Continue to operate after the change.
Purchase or handle any farm product from a person who had a farm product contract with the former licensee at the time of the change in entity without notifying that person, in writing, of the change in entity.
Use any invoice, contract, or other document associated with the purchase, consignment, or brokerage of any farm product that identifies the former licensee unless the new entity is conspicuously identified on the same invoice, contract, or other document as the entity responsible for the transaction.
The new entity shall notify the director in writing of the change in legal entity within 15 days of the change. The new legal entity shall, before it conducts business that requires a license, obtain a new license for the business.
Notwithstanding subdivision (b), if a licensee conducts business without a new license as a result of a change of legal entity, it may, within 120 days of the change, upon a showing of no substantial change in financial resources and liabilities, petition the director to grant a new license retroactive to the first day of the month during which the change occurred, and the director may grant the license with retroactive effect upon a finding that doing so would be consistent with the purposes of this chapter. Upon granting the petition, the director shall (1) require the licensee to pay an additional fee in an amount that will cover the expenses of the department in the matter, but not to exceed the fee for a new license, (2) place conditions on the license that are consistent with the purposes of this chapter as the director deems appropriate, and (3) require the licensee to pay an amount, for deposit in the Farm Products Trust Fund, equal to the amount that would have been required had the license been obtained in accordance with subdivision (b).
If the Secretary of State suspends the corporate status of any licensee or if the corporate status is forfeited, the license is revoked by operation of law. The former licensee shall provide written notice of the suspension or forfeiture to the director, and to each person with whom it has a farm product contract, within 15 days of the date the Secretary of State mails the notice of suspension or forfeiture.
The former licensee, may, upon a showing of no substantial change in financial resources and liabilities, and within 90 days of the suspension or forfeiture of corporate status, petition the director for an order to reissue its license formerly held under this chapter. If the corporate status has been reinstated by the Secretary of State, the director may reissue the license if the director finds that doing so would be consistent with the purposes of this chapter. As a condition to reissuing the license, the director may (1) require the former licensee to undertake such financial guarantees, including the filing and maintaining of bonds, as the director deems necessary to protect the interests of contracting parties and (2) impose other conditions on the license that are consistent with the purposes of this chapter as the director deems appropriate.
The application shall in each case state all of the following:
Every class of farm products which the applicant proposes to handle.
The full name of the person that is applying for such license. If the applicant is a firm, exchange, association, or corporation, the full name of each member of the firm, or the names of the officers of the exchange, association, or corporation shall be given in the application.
The principal business address of the applicant in this state and elsewhere.
The name of each person authorized to receive and accept service of summons and legal notices of all kinds for the applicant.
An initial application, at a minimum, shall include the following:
A release authorizing the department, during consideration of the application and for the duration of licensure, to have access to and obtain financial information from both of the following:
The applicant’s files with credit reporting agencies.
The applicant’s files with banks, savings and loan associations, or any other financial institutions with whom the applicant has done business in the past or with whom the applicant intends to do business during the year of licensure.
A notice signed by the applicant that the department may obtain criminal record information during the course of a licensing investigation or upon presentation with a reasonable basis to believe the licensee has been convicted of a crime. An applicant whose application is incomplete shall be given written notice that a failure to complete it within 60 calendar days shall result in denial of the application.
The documents and information procured pursuant to this section shall be considered the records of a consumer and shall not be construed to be a public record. The documents and information shall remain confidential, except in actions brought by the department to enforce this division, or as a result of the issuance of a subpoena in accordance with Section 1985.4 of the Code of Civil Procedure. The unauthorized release of the documents received from the Department of Justice or the information contained in those documents is a misdemeanor.
The department shall adopt regulations that specify the proper and necessary information and supporting documentation the department requires for an application to be considered complete.
In addition to the general requirements which are applicable to all applications as set forth in this article, the following requirements shall apply to each applicant who engages in the designated activity:
Each applicant who intends to engage in business as a commission merchant shall include a complete schedule of commissions, together with an itemized listing of all charges for all services. Such designated commissions and charges shall not be changed or varied except by written contract between the parties. If changed by a written contract, such charges shall be clearly set forth in detail in such written contract. Any services which are rendered for which charges are made, if not listed in the schedule on the application, shall be rendered on a strictly cost basis.
Each application for an agent’s license shall include such information as the director may consider proper or necessary, and shall include the name and address of applicant, and the name and address of the licensee that is represented or sought to be represented by the agent, and the written endorsement or nomination of such licensee.
The department shall accept or deny an application within 90 calendar days of receipt of a completed application. The department may deny, condition, suspend, or revoke a license issued pursuant to this chapter upon any of the following grounds and in the manner provided in this chapter:
Upon one flagrant violation, as determined by the department, or upon repeated violations, by the holder or applicant, of any one or combination of the sections of this division or under any one or combination of the regulations promulgated by the department under the authority of this division.
Upon one flagrant violation, as determined by the department, or upon repeated violations, by a holder’s or applicant’s agent, employee, or contractor, or of an organization or entity in which the holder or applicant holds a significant financial interest, of any one or combination of the sections of this division or any one or combination of the regulations promulgated under this division under circumstances where the holder or applicant knew or should have known and failed to take reasonable measures to prevent the violation or failed to report the violation to the department upon learning of the violation.
Upon the conviction of the holder or applicant of a crime that includes as one of its elements the financial victimization of another person. However, if the licensee was licensed prior to January 1, 1998, and the department knew of, or was on notice of, the conviction, that conviction may not form the basis of a disciplinary action under this subdivision.
On the grounds of a false or misleading statement by a holder or applicant that the holder or applicant knew or should have known to be false or misleading, directed to any official of any government concerning the scope of any indicia of authority, including, but not limited to, the holder’s or applicant’s license associated with the holder’s or applicant’s business, the standards under which the indicia was authorized, the contents of the application for licensure, or the holder’s or applicant’s relationship to the indicia.
On the grounds that a holder or applicant, or a holder’s or applicant’s agency, employee, or contractor, or an organization or entity in which a holder or applicant holds a significant financial interest, deceived a grower in any material matter. Deception, for purposes of this subdivision, does not require scienter, but requires active misrepresentation where the actor knew the representation to be false or where the actor should have known, with due consideration, that he or she did not know whether or not the representation was true or false.
The Legislature finds there to be a substantial nexus between the conduct specified in Section 56185 and an applicant’s or holder’s fitness for licensure.
The department shall not dismiss an action where a violation, however minor, has been established. The department shall not dismiss an action because the applicant or holder establishes factors in mitigation.
However, the department may impose discipline other than denial or revocation of the license. As an alternative to revocation of a license, the department may stay a revocation subject to terms for a period of probation. As an alternative to denial the department may issue a license subject to conditions. Terms of probation or terms of conditional licensure may include, but are not limited to, a requirement of restitution, payment for extra audits, immediate revocation on a new violation, or any other terms that respond to the particular violations or circumstances found.
Once a finding of a violation has been made, the department may consider the following factors in assessing the appropriate level of discipline:
The relative isolation or infrequency of the conduct.
Whether the conduct was a part of a pattern or practice.
Whether the actor had been warned before.
Whether the actor considered the consequences of the conduct.
Whether the actor reasonably relied on others.
The severity of the consequences.
The mens rea of the actor.
In the case of a criminal conviction, evidence of rehabilitation.
The total licensing history.
The following factors shall not be considered in assessing the appropriate level of discipline:
The social or economic contributions of the applicant or holder.
General testimonials as to good character and worthiness to be licensed.
Economic hardship on the licensee.
“Mercy of the court” pleas in connection with criminal convictions, pattern or practice violations, or deception.
In the case of a felony criminal conviction, the department shall not consider rehabilitation unless the convicted person has a valid certificate of rehabilitation.
If an application for a license indicates, or the department determines during the application review process, that the applicant was issued a license that was revoked within the preceding two years, the department shall cease any further review of the application until two years have elapsed from the date of the revocation. The cessation of review shall not constitute a denial of the application for the purposes of this chapter, or any other provision of law.
If an application for a license indicates, or the department determines during the application review process, that the applicant had previously applied for a license and the application was denied within the last year, the department shall cease further review of the application until 30 days have elapsed from the date of the notification of the denial or from the effective date of the decision and order of the department upholding a denial. The cessation of review shall not constitute a denial of the new applicant for purposes of this chapter, or any other provision of law.
Nothing in subdivision (a) or (b) prohibits the department from taking into account the basis for denial or revocation in considering any new application subsequent to the elapse of the applicable period of prohibition.
The department shall require the applicant to make a showing of character, responsibility, and good faith in seeking to carry on the business that is stated in the application, and may make investigations, hold hearings, and make determinations respecting such matters.
A license is forfeited by operation of law prior to its expiration date when one of the following occurs:
The holder surrenders the license to the department.
The holder dies.
The partnership holder dissolves.
The holder of a significant financial interest in a corporation transfers his or her interest to another person or entity, regardless of relationship.
The holder files for bankruptcy under provisions other than those permitting and governing reorganization under bankruptcy.
The withdrawal of an application for a license after it has been filed with the department does not deprive the department of its authority to institute or continue a proceeding against the applicant or to enter an order denying the license, unless the department consents in writing to such a withdrawal.
The expiration or forfeiture by operation of law of a license, or its forfeiture or cancellation by order of the department or by order of a court of law, or its surrender without the written consent of the department, does not deprive the department of its authority to institute or continue a disciplinary proceeding against the holder upon any ground provided by law or to enter an order revoking the license or otherwise taking disciplinary action against the holder.
Any action brought by the department against an applicant or holder does not abate by reason of the sale or other transfer of ownership of the business that is a party to the action, except with the written consent of the department.
Nothing in this division or in any other provision of this code deprives the department of the authority to settle or adjudicate a disposition of a case other than by revocation or denial. The department or the department’s designee may compromise with the applicant or holder in a written stipulation and order. The department may, following a hearing, order probation on terms and conditions as determined by the department. The authority conferred by this subdivision shall include, but not be limited to, the authority to order payment of amounts determined owing, the authority to dismiss an action on the department’s own initiative, the authority to order administrative penalties, the authority to order a respondent to pay for heightened audit scrutiny, the authority to suspend a license for a period of years, or any combination of remedies other than final revocation or denial of a license.
Any person who is adjudicated liable for payment of a claim for farm products that arose out of the conduct of a business licensed or requiring a license under this chapter or Chapter 6 (commencing with Section 55401), and who has not made full settlement with all producer-creditors, shall not be licensed by the director as a principal for four years from the date of the adjudication.
In addition to the other requirements of this chapter, each application for a license, except for a cash buyer’s license, shall include an affidavit in which the applicant affirms that he or she is current in making all payments required under undisputed contract agreements, and that he or she will do all of the following:
Abide by all provisions of this chapter and Chapter 6 (commencing with Section 55401).
Will prepare and retain financial records adequate to document all transactions with suppliers.
Will prepare and retain current financial information, including, but not limited to, profit-and-loss statements and a balance sheet that presents fairly the financial condition as of the applicant’s most recent yearend.
The affidavit shall be on a form prescribed by the secretary and shall be submitted under penalty of perjury.
Licensees or applicants for a license shall be required to furnish and maintain a surety bond in a form and amount satisfactory to the director, if within the preceding four years the director determines that they have done any of the following:
Engaged in conduct which demonstrates a lack of financial responsibility including, but not limited to, delinquent accounts payable, judgments of liability, insolvency, or bankruptcy.
Failed to assure future financial responsibility unless a surety bond is posted.
Otherwise violated this chapter which resulted in license revocation.
The bond shall not be less than ten thousand dollars ($10,000) or 20 percent of the annual dollar volume of business based on farm product value returned to the grower, whichever is greater, as assurance that the licensee’s or applicant’s business will be conducted in accordance with this chapter and that the licensee or applicant will pay all amounts due farm products creditors.
The director, based on changes in the nature and volume of business conducted by the licensee, may require an increase or authorize a reduction in the amount of the bond, but in no case shall the bond be reduced below ten thousand dollars ($10,000). A licensee who is notified by the director to provide a bond in an increased amount shall do so within a reasonable time as specified by the director. If the licensee fails to do so, the director may, after notice and opportunity for hearing, suspend or revoke the license of any licensee.
The department shall notify the applicant or holder in writing of the department’s decision to bring charges to deny, suspend, or revoke a license.
The notice shall inform the applicant or holder of the charges against him or her, of the department’s proposed disciplinary action, and of his or her rights under this chapter.
The notice shall be served by certified mail to the applicant or holder’s last known address.
Except where the license has been temporarily suspended, the notice shall be mailed to the applicant or holder at least 30 calendar days in advance of the impending action.
The department’s proposed action shall become final unless the applicant or holder appeals prior to the end of the notice period by submitting a notice of defense to the department in a form specified by the department. The notice shall be transmitted to the department in a form that is written, including, but not limited to, by facsimile.
If the department receives a timely notice of defense, the department shall schedule a hearing within 90 calendar days of receipt of the notice of defense, except where the license has been temporarily suspended. Pending the final decision at the conclusion of the hearing, a revocation shall be stayed. A temporary suspension shall not be stayed.
Proceedings for the revocation or denial of a license issued under this chapter shall be conducted by hearing officers appointed for that purpose by the department. The department may elect to use hearing officers employed by the Office of Administrative Hearings. The hearing officers shall be independent of the Market Enforcement Bureau, but may be employees of the department. The hearing officers shall be qualified administrative law judges.
Proceedings shall be conducted generally in accordance with the provisions of Chapters 4.5 (commencing with Section 11400) and 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. However, proceedings need not conform strictly to any “rules of court” adopted as regulations by the Office of Administrative Hearings to guide the conduct of hearings conducted by the Office of Administrative Hearings. The department has all power granted by Chapters 4.5 (commencing with Section 11400) and 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
The sole parties to the proceedings shall be the department and the applicant or holder. Third party intervention shall not be permitted. The disputes, claims, and interests of third parties shall not be within the jurisdiction of the proceedings. However, nothing in this paragraph prohibits any interested party from submitting an amicus brief if the hearing officer requests written briefs.
The validity of a department regulation or order shall not be within jurisdiction of the proceedings.
Law and motion matters shall be handled by the assigned hearing officer.
The hearing officer may not enter into settlement discussions.
The hearing officer may not issue sanctions.
In all proceedings conducted in accordance with this section, the standard of proof to be applied is the preponderance of the evidence. When the department seeks to revoke an existing license, the department shall have the burden of proof and the burden of producing evidence.
Decisions following a hearing shall be adopted by the department or the department’s designee and become final unless remanded for reconsideration or alternated in accordance with Chapters 4.5 (commencing with Section 11400) and 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
The department shall maintain a library of decisions that shall be made available to any person, including the parties to administrative actions during discovery.
Each licensee shall post his license or a copy of it in his office or salesroom in plain view of the public.
The director shall issue to any individual or member of a partnership, a card which specifies that he or his firm is licensed. The licensee shall show such card upon the request of any interested person.
The director may also issue to each agent a separate card for each principal which the agent represents, which shall bear the signature of the agent. Any agent shall show the card upon the request of any interested person. Any agent that displays a void or expired license card is guilty of a misdemeanor, punishable as provided in Section 56631 of this chapter.
All indicia of the possession of a license are at all times the property of this state. Each licensee is entitled to the possession of them only for the duration of the license.
ARTICLE 6. Financing Charges and Financial Statements [56251. - 56255.]
A licensee that finances, lends money, or otherwise makes advances of money or credits to another licensee may not deduct from the proceeds of any farm product which is marketed, sold, or otherwise handled by him on behalf of or for the account of the licensee to whom such money, loans, advances or credits are made, an amount which exceeds a reasonable commission or brokerage, together with the usual and customary selling charges or costs of marketing, or both. He may not otherwise divert to his own use or account or in liquidation of such loans, advances, or credits the moneys, returns, or proceeds accruing from the sale, handling, or marketing of any farm product which is handled by him on behalf of or for the account of the licensee to whom or for whom such loans, advances, or credits are made.
If the director is not satisfied that an applicant or licensee is financially responsible, the director may, in lieu of denying, suspending, or revoking the license, accept an irrevocable guarantee of the obligations of the licensee to all California farm products creditors. The guarantee shall be for any periods and in any amounts that the director may from time to time require. The director may, as a condition of accepting and maintaining the guarantee, require the guarantor to supply financial information to the director at times and to the extent the director deems advisable.
A guarantee placed with the director pursuant to subdivision (a) shall support an action in a court of competent jurisdiction by a farm products creditor for obligations of the licensee to the creditor and by a state officer for the obligations of the licensee to the state related to transactions subject to the guarantee.
The secretary may require a licensee to file a balance sheet or statement of financial position that presents fairly the financial condition of such licensee. Such financial statement, if not prepared by a public accountant or certified public accountant, shall be on a form prescribed by the secretary and shall be submitted under penalty of perjury. Any balance sheet submitted that does not provide the information required by the secretary shall not meet the requirements of this section. Failure of a licensee to file a financial statement pursuant to this section shall be sufficient grounds for license revocation.
Any financial statement submitted to the director pursuant to the provisions of this article is confidential and shall not be divulged except if necessary for the proper determination of any court proceedings or hearing before the director.
Every licensee shall prepare and preserve the accounts, records, and memoranda required by this chapter which shall fully and correctly disclose all transactions involved in his business. Licensees shall keep records which are adapted to the particular business that the licensee is conducting and in each case such records shall fully disclose all transactions in the business in sufficient detail as to be readily understood and audited. Minimum records required under this chapter are:
1. A record of cash received.
2. A record of cash disbursed.
3. A general ledger or its equivalent.
4. A record of amounts due California producers.
5. A record of amounts due others.
Every licensee shall prepare and preserve records and memoranda required by this chapter which shall fully and correctly disclose the true ownership and management of such business.
All records required to be kept under this chapter shall be kept for a period of four years.
ARTICLE 7. Commission Merchants [56271. - 56283.]
Every commission merchant, that receives any farm product for sale as a commission merchant, shall promptly make and keep a correct record which shows in detail all of the following with reference to the handling, sale, or storage of such farm product:
The name and address of the consignor.
The date it was received.
The condition and quantity upon arrival.
Date of such sale for the account of the consignor.
The price for which it was sold.
An itemized statement of the charges to be paid by the consignor in connection with the sale. Any services rendered for which charges are made, if not filed with the director, shall be charged at cost if not covered by a written contract. Cost-supporting data shall be available for verification.
The names and addresses of all purchasers if the commission merchant has any financial interest in the business of the purchasers, or if the purchasers have any financial interest in the business of the commission merchant, directly or indirectly, as holder of the other’s corporate stock, as copartner, as lender or borrower of money to or from the other, or otherwise. Such interest shall be noted in such records following the name of any such purchaser.
A lot number or other identifying mark for each consignment, which number or mark shall appear on every sales tag and every other essential record which is needed to identify each consignment from receipt through final sale. When requested by the consignor, as provided by Section 56281, a lot number shall appear on each individual farm product container. When containers are on pallets, then only the exposed containers shall be marked. When stamping or otherwise identifying each container is impractical due to the type of packaging, the container need not be marked.
Any claim which has been or may be filed by the commission merchant against any person for overcharges or for damages which result from the injury or deterioration of such farm product by the act, neglect, or failure of such person. Such records shall be open to the inspection of the director and the consignor of the farm product for whom such claim is made.
When requested by his consignors, a commission merchant shall, before the close of the next business day following such request, transmit to the consignor a true written report of the quantity sold and the selling price.
The full amount which is realized from the sales, including all collections, overcharges, and damages, less the agreed commission and other charges, together with a complete account of sales, as provided in Section 56273.1, shall be remitted to the consignor within 10 days after receipt of the moneys by the commission merchant, unless otherwise agreed in writing.
For purposes of this chapter, an account of sales shall be deemed complete if it consists of all of the following information:
The date of shipment.
The terms of the original sale concerning where and when title passes.
The commodity, variety, size, and grade.
The quantity shipped.
The quantity disposed of in a manner other than sale by the buyer, if applicable.
The original selling price.
The adjusted selling price, if applicable.
The reason for adjustment, if applicable.
Any inspection certificate required to be obtained as stated in Section 56280.
Amounts billed and collected from the buyer for services rendered to the buyer by the commission merchant.
The gross and net returns received from the buyer.
Any authorized commission merchant charges.
Any additional amounts paid to the consignor by the commission merchant to support the original price.
The net amount due the consignor.
The consignor and the commission merchant may agree on the documentation necessary to support the information required by subdivision (a). The agreements shall be made, in writing, prior to the shipping season of the particular farm product.
In the account, the names and addresses of purchasers need not be given. Where a commission merchant has entered into a contract with two or more producers or consignors which contract provides that the returns for farm products sold for the account of such producers or consignors shall be pooled on a definite basis as to size or grade, or both, during a certain period of time, then a commission merchant shall obtain the written consent of the consignors and shall be required to render an account of sales, showing the net average pool return on each size or grade, or both, from sales made and shall keep a correct record of such sales, showing in detail all information as required in Section 56271.
Every licensee operating as a commission merchant shall retain a copy of all records which cover each transaction, which copy shall at all times be available for, and open to, the confidential inspection of the director, consignor, or the authorized representative of either.
If there is any dispute or disagreement between a consignor and a commission merchant which arises at the time of delivery as to condition, quality, grade, pack, quantity, or weight of any lot, shipment, or consignment of any farm product, the department shall furnish, upon the payment of a reasonable fee for it by the requesting party, a certificate which establishes the condition, quality, grade, pack, quantity, or weight of such lot, shipment, or consignment.
Such certificate is prima facie evidence of the truth of the statements contained therein. The presumption established by this section is a presumption affecting the burden of proof, but it does not apply in a criminal action.
Proof of any sale of any farm product which is made by a commission merchant for less than the current market price to any person with whom he has any financial connection, directly or indirectly as owner of its corporate stock, as copartner, or otherwise, or any sale out of which such commission merchant receives, directly or indirectly, any portion of the purchase price, except the commission which is named in the licensee’s application or in a specific contract with the consignor, establishes a rebuttable presumption of fraud within the meaning of this chapter. This presumption is a presumption affecting the burden of proof.
The burden of proof shall be upon the commission merchant to prove the correctness of any accounting required to be performed by the commission merchant pursuant to this chapter as to any transaction which may be questioned.
A commission merchant shall notify each consignor with whom he or she does business of this section. The notice shall be given in writing prior to the shipping season of the particular farm product.
No charge shall be made against a consignor’s account for a downward price adjustment or a reduction in quantity of farm products delivered due to a breach of contract, unless the commission merchant has, in his or her files, a federal-state inspection certificate, issued pursuant to the United States Agricultural Marketing Act of 1946, (7 U.S.C. 1621, et seq.), indicating the type and the extent of the substandard condition of the lot involved in the breach of contract, thereby supporting the amount charged against the consignor’s account. The commission merchant need not obtain a federal-state inspection certificate unless the lot involved is of a substandard condition.
Notwithstanding Section 56281, this section does not preclude a consignor from agreeing to a downward price adjustment or a reduction in the quantity of farm products delivered and waiving the right to inspection when the agreement was made prior to the shipping season of the particular farm product and was in writing.
The federal-state inspection certificate may be substituted by a private third-party inspection, based on the standards prescribed under the United States Agricultural Marketing Act of 1946, if the director determines, to his or her satisfaction, that a federal-state inspection certificate could not reasonably be obtained. If the director determines, to his or her satisfaction, that neither a federal-state inspection certificate nor private, third-party inspection, can be reasonably obtained, a signed statement of two or more disinterested, or otherwise independent parties, who have sufficient knowledge, acquired through education or experience, to evaluate the farm product involved, may be used as substitute for the federal-state certificate or third-party inspection, in order to make a statement as to the quality and condition of the lot of farm product at the time of inspection.
Where the condition of the lot is not substandard but for other reasons, including a decline in market demand, there is a downward price adjustment, the commission merchant shall affirm, in writing, that the lot was at least of standard quality at the time of sale. The affirmation shall be attached to, or made part of, the records of the consignment.
As used in this section, “lot” means the farm product identified by the procedure set forth in subdivision (h) of Section 56271.
Any agreement waiving any right guaranteed by this chapter shall set forth in exact language the provision of this code being waived. Upon request by the secretary, the commission merchant shall make the agreement available for inspection. Any agreement that does not comply with this section, or that is not made available to the secretary for inspection upon the secretary’s request, is void.
A commission merchant shall notify each consignor with whom he or she does business of the provisions affecting the consignor that are contained in Sections 56271, 56272, 56273, 56280, 56282, and 56351, and this section. The notice shall be given in writing prior to the shipping season of the particular farm product. The notice shall include a form whereby the consignor may request notice of any adjustment by the commission merchant. The form shall also include a provision whereby the consignor may request that lot numbers be affixed on each individual farm product container as provided in subdivision (h) of Section 56271. Each commission merchant shall keep the records necessary to prove that the notices were given to each consignor in accordance with this section. A licensee operating as a commission merchant shall notify the consignor of any adjustment on a transaction, and provide reasons for the adjustment, within 48 hours.
If the commission merchant is unable to contact the consignor by telephone or in person, the notification shall be immediately provided by mail.
Pursuant to this chapter, upon the verified complaint of the consignor, the secretary may disallow to a commission merchant, all or part of, any adjustment charged back to any consignor similarly situated, if the secretary determines that there is insufficient justification of the condition or circumstances requiring the adjustment.
In determining whether there is insufficient justification for an adjustment, the secretary shall first determine if any waivers or agreements have been entered into pursuant to this chapter. If a waiver or agreement has been entered into and the secretary determines that the waiver or agreement complies with Section 56280.5 and does not otherwise violate this chapter, the secretary’s inquiry in determining this adjustment shall be governed by the terms and conditions of the waiver or agreement.
If there is no waiver or agreement, or if the waiver or agreement violates this chapter, as determined by the secretary, in determining whether there is insufficient justification for an adjustment, the secretary shall consider, among other things, the following:
Market reports or other market evidence does not support a downward price adjustment in accordance with Section 56279.
Every commission merchant who receives any farm product for sale on consignment shall exercise reasonable care and diligence in disposing of the product in a fair and reasonable manner.
ARTICLE 8. Dealers [56301. - 56302.5.]
Every licensee operating as a dealer who purchases any farm product from the producer of the farm product or from any licensee for the purpose of resale, shall promptly make and keep a correct record which shows in detail all of the following:
The name and address of the producer or licensee.
The date received.
The price to be paid.
An itemized statement of any charges paid by the dealer for the account of the seller.
Every dealer shall pay for any farm product purchased by him at the time and in the manner specified in the contract with the producer or licensee. If no time for payment is set by such contract or made at the time of the delivery, the dealer shall pay for the farm product within 30 days from the delivery or taking possession of such farm product.
Upon delinquency of a contract.
If payment is not made within 30 days when the contract does not specify time of payment or if there is no contract.
If payment is not made within 30 days when the contract is oral, irrespective of the agreed time of payment.
The dealer shall have the burden of proof as to the timely delivery of such a notice.
Such a notice shall only be required as to the first contract between any particular seller and dealer during any one calendar year.
ARTICLE 9. Brokers [56331. - 56332.]
Every licensee operating as a broker, upon negotiating the sale of farm products, shall issue to both buyer and seller a written memorandum of sale, before the close of the next business day, showing price, date of delivery, quality, and all other details concerned in the transaction.
The memorandum required by subdivision (a) shall have an individual identifying number printed upon it. The numbers shall be organized and printed on the memoranda so that each memorandum can be identified and accounted for sequentially. Unused or damaged memoranda shall be retained by the broker for accounting purposes.
A licensee operating as a broker shall not alter the terms of the transaction as specified on his original memorandum of sale without the consent of both parties to the transaction. Upon making such change, the broker is required to issue a clearly marked corrected memorandum of sale, which shall clearly indicate the date and time when such adjustment or change was made, and shall transmit such corrected memorandum to both buyer and seller before the close of the next business day.
ARTICLE 10. Claims of Licensees [56351. - 56352.]
A claim may not be made against the seller of any farm product by a licensee pursuant to this chapter, and no credit may be allowed to such licensee against another licensee or a producer of any farm product by reason of damage to or loss, dumping, or disposal of any farm product which is sold to such licensee, in any payment, accounting, or settlement which is made by the licensee to the producer or other licensee, unless the licensee has secured and is in possession of a certificate issued by a county agricultural commissioner, a county health officer, the director, a duly authorized officer of the State Board of Health, or by some other official now or hereafter authorized by law. The certificate shall state that the farm product which is involved has been damaged, dumped, destroyed, or otherwise disposed of as unfit for human consumption or as in violation of the fruit and vegetable standards which are contained in Division 17 (commencing with Section 42501) of this code.
A private third-party inspection based on the standards prescribed in the United States Agricultural Marketing Act of 1946 may be substituted for such certificate if the director determines that an inspection certificate cannot be reasonably obtained. Where the director determines that neither an inspection certificate nor a private third-party inspection can be reasonably obtained, the signed statement of two or more disinterested or otherwise independent parties who have sufficient knowledge acquired through education or experience to evaluate the farm product involved may be used to describe the type and extent of the quality and condition factors present upon inspection.
The certificate is not valid as proof of a proper claim, credit, or offset unless it is issued within 24 hours of the receipt by the licensee of the farm product which is involved.
ARTICLE 11. Examinations and Audits [56381. - 56383.]
If, in the opinion of the department, there appears to be reasonable grounds for investigating a complaint or notification made under the provisions of this chapter, the department shall investigate the complaint or notification. In the course of the investigation, if the department determines that violations of this chapter are indicated other than alleged violations specified in the complaint or notification that served as the basis for the investigation, the department may expand the investigation to include the additional violations.
In the opinion of the department, if an investigation substantiates the existence of violations of this chapter, the department may cause a complaint to be issued.
The investigation may include, but shall not be construed to require, examinations and audits of the books and records of any licensee pertaining to the solvency of the licensee, or to the purchase or handling of and accounting for any farm product purchased or received on consignment from another licensee or the producer, or handled as a brokerage transaction. The department may examine and audit all pertinent books, records, weight certificates, receipts, ledgers, journals, papers, contracts, bank statements, canceled checks, and other documents of the licensee that show or tend to show facts regarding the financial condition and the number and status of accounts of growers and others who are doing business with the licensee.
If the examination discloses evidence of any violation of this chapter, the department may issue a complaint detailing the charges and the discipline sought in accordance with this chapter.
An aggrieved grower or licensee with a complaint that is not subject to the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181 et seq.) or the federal Perishable Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.) may seek resolution of that complaint by filing a complaint with the department within nine months from the date a complete account of sales was due. The complaint shall be accompanied by two copies of all documents in the complainant’s possession that are relevant to establishing the complaint, a filing fee in the amount specified in the fee schedule set forth in paragraph (2), and a written denial of jurisdiction from the appropriate federal agency unless the commodity involved clearly does not fall under the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181 et seq.) or the federal Perishable Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.). Within five business days of receipt of a signed and verified complaint, the filing fee, and the denials of federal jurisdiction, the department shall serve the verified complaint on the respondent. Service shall be by certified mail. The department, the secretary, the department’s employees, the department’s agents, the boards and commissions associated with the department, their employees or agents, and the State of California are not parties to the dispute in a proceeding brought under this section.
The complaint filing fee schedule shall be as follows:
For complaints alleging an amount due of less than one hundred thousand dollars ($100,000), the filing fee shall be two hundred dollars ($200).
For complaints alleging an amount due of one hundred thousand dollars ($100,000) or more but less than two hundred fifty thousand dollars ($250,000), the filing fee shall be three hundred dollars ($300).
For complaints alleging an amount due of two hundred fifty thousand dollars ($250,000) or more, the filing fee shall be five hundred dollars ($500).
The respondent served shall answer within 30 calendar days of service. The respondent’s response shall include two copies of all relevant documentation of the transactions referred to in the verified complaint.
Within 30 calendar days of receipt of the answer, the department shall issue to both parties a written factual summary on the basis of the documents that have been filed with the department.
If a settlement is not reached within 30 calendar days after the department’s summary is issued, the department, on request of the claimant or respondent and upon payment of a filing fee of three hundred dollars ($300), shall schedule alternate dispute resolution, to commence within 90 calendar days. The department shall serve both parties with a notice of hearing, which sets out the time, date, street address, room number, telephone number, and name of the hearing officer. Service of the notice of hearing shall be by certified mail.
The alternate dispute resolution shall proceed as follows:
The hearing shall be conducted by hearing officers in accordance with standard procedures promulgated by the American Arbitration Association or other acceptable alternative dispute resolution entities.
The hearing officers shall be familiar with the type of issues presented by such claims, but need not be attorneys.
The sole parties to the proceedings shall be the complainant and the respondent.
The disputes, claims, and interests of the department or the State of California are not within the jurisdiction of the proceedings.
The validity of a regulation of the department or order promulgated pursuant to this code is not within the jurisdiction of the proceedings.
Law and motion matters shall be handled by the assigned hearing officer.
The hearing officer has no authority to enter into settlement discussions, except upon stipulation of the parties involved.
The parties may represent themselves in propria persona or may be represented by a licensed attorney at law. A party may not be represented by a representative who is not licensed to practice law.
To the extent of any conflict between Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code and this article, this article shall prevail.
The hearing officer may order a review of records or an audit of records by a certified public accountant. The review or audit shall be conducted under generally accepted auditing standards of the American Institute of Certified Public Accountants, and upon completion of the review or audit the nature and extent of the review or audit shall be disclosed to the parties by the auditor in the audit report. The audit report shall disclose the number of transactions reviewed and the rationale for selecting those transactions. The department shall advance the costs of the audit or review of records, but the hearing officer shall apportion the costs at the conclusion of the hearing. The department shall pursue repayment in accordance with the hearing officer’s apportionment and may bring an action in a court of competent jurisdiction to recover funds advanced. This subdivision does not require the department to pursue any specific remedy or prohibit the department from accepting a reasonable repayment plan.
The hearing officer shall render a written decision within 60 days of submission of the case for decision. In addition to rendering a written finding as to what is owed by whom on the substantive allegations of the complaint, the hearing officer shall decide whether or not to order the full cost of the alternative dispute resolution proceeding, and in what ratio or order the losing party is to pay the costs of the proceeding. For these purposes, the cost of the alternative dispute resolution proceeding does not include the filing fee, the parties’ attorney fees, or expert witness fees. The hearing officer may also award a sanction against a complainant for filing a frivolous complaint or against a respondent for unreasonable delay tactics, bad faith bargaining, or resistance to the claim, of either 10 percent of the amount of the award or a specific amount, up to a maximum of one thousand dollars ($1,000). Any sanction award shall not be deemed to be res judicata or collateral estoppel in any subsequent case in which either the complainant or respondent is charged with filing a frivolous complaint, unreasonable delay tactics, bad faith bargaining, or resistance to the claim. The department may consider the written decision of the hearing officer in determining any related licensing action. The written decision of the hearing officer may be introduced as evidence at a court proceeding.
This section does not prohibit the parties to the dispute from settling their dispute before, during, or after the hearing.
This section does not alter, preclude, or condition the exercise, during any stage of the proceedings provided by this chapter, of any other rights to relief a party may have through petition to a court of competent jurisdiction, including, but not limited to, small claims court.
In addition to all other complaint procedures provided for in this chapter, any aggrieved grower or licensee with a complaint that is not subject to the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181 et seq.) or the federal Perishable Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.) and for which the claim for damages does not exceed thirty thousand dollars ($30,000), may file a verified complaint with the department, subject to expedited review and settlement. Informal complaints may be made for damages, but not for disciplinary action, although the department may issue a complaint pursuant to Section 56382 as the basis for disciplinary action. Informal complaints must be received by the department within nine months of when the claimant ought to have reasonably known of its existence, as required under Section 56446.
Complaints must be submitted to the department in writing and verified, and may be transmitted via United States mail, overnight delivery, or by facsimile transmission, setting forth the essential details of the transactions complained of, including the following:
The name and address of each party to the dispute, of the agent representing him or her in the transaction involved, if any, as well as the party’s counsel, if any.
The quantity and quality or grade of each kind of produce shipped if a grade or quality is the basis of payment.
The date of shipment.
The carrier identification if a carrier was used.
The shipping and destination points.
If a sale, the date, sales price, and amount actually received.
If a consignment, the date, reported proceeds, gross, and net.
A precise estimate of the amount of damages claimed, if known.
A brief statement of material facts in dispute, including terms of applicable contracts.
The amount of damages being sought.
The complaint shall also, so far as practicable, be accompanied by true copies of all available papers relating to the transaction complained about, including shipping documents, letters, telegrams, invoices, manifests, inspection certificates, accountings, accounts of sale, and any special contracts or agreements.
The informal complaint shall be accompanied by a nonrefundable filing fee of one hundred dollars ($100) as required under Section 56382.5.
Upon confirmation that a complaint has been properly and timely filed, including the securing of a denial letter from the United States Department of Agriculture under the federal Packers and Stockyards Act, 1921, or the federal Perishable Agricultural Commodities Act, 1930, the department shall send a copy of the complaint to the respondent by certified mail and advise the respondent that it shall have 30 days from the department’s mailing of the complaint in which to answer the complaint. The answer shall contain a brief response to the complaint, including the respondent’s position with respect to the claimant’s description of matters in dispute, the relevant facts, and the remedy sought, together with a description of any claims it may have against the complainant, in the same manner as claims are to be set out in the complaint. The respondent shall also include any pertinent documentation relevant to its defense with its answer.
After receipt of the answer from the respondent, the department shall informally consult with the parties to clarify the nature of the dispute and to facilitate the exchange of information between the parties in order to assist the parties in reaching an expedited informal resolution of the dispute. The informal consultation process will last no longer than 60 days. The parties shall cooperate fully with the department and shall participate in the informal consultation process.
If the informal consultation process provided for in this section does not result in resolution of the dispute, the complainant may then pursue arbitration against the licensee and the complaint and any counterclaim will be fully and finally adjudicated and resolved by a decision of an arbitrator under expedited arbitration procedures as follows:
The complainant shall submit a fee of six hundred dollars ($600) to the department made payable to the arbitrator, arbitration service, or payee designated by the department for the arbitration and any counterclaimant shall submit a fee of six hundred dollars ($600) to the department for any counterclaim that is filed also made payable to the arbitrator, arbitration service, or payee designated by the department.
An arbitrator from a panel of arbitrators registered with the department shall be selected by the department and confirmed by both the complainant and the respondent or counterclaimant after the prospective arbitrator has certified that he or she has no known conflict of interest in the dispute and after each party has had an opportunity to lodge an objection for cause to the appointment of the named arbitrator within five days of its receipt of the notice of appointment of the arbitrator. The notice of appointment shall be in writing and may be transmitted via overnight delivery or by facsimile transmission.
Upon confirmation of the appointment of the arbitrator the department will transmit to the arbitrator the verified complaint, the statement of defense, and the statement of counterclaim, if one is filed.
The complainant shall have 30 days after receipt of the notice of appointment of the arbitrator to submit to the department in writing sworn declarations by witnesses and any other documentary evidence not previously submitted, as well as legal authorities and arguments.
Within five days of the department’s receipt of the complainant’s written submission the department shall transmit a copy of the complainant’s written submission to the respondent. The respondent shall have 30 days from the receipt of the complainant’s written submission to submit to the department in writing responsive declarations by witnesses or other documentary evidence not previously submitted, as well as any legal authorities and arguments. The respondent’s written submission in support of its counterclaim, if any, must be sent to the department at the same time as the responsive submission.
If there is a counterclaim filed, within five days of the department’s receipt of the counterclaimant’s written submission the department shall transmit a copy of the counterclaimant’s written submission to the complainant. The complainant shall have 10 days from the receipt of the counterclaimant’s written submission to submit any witness statements, evidence, or legal authorities and arguments in reply.
Once all periods for submission of evidence and arguments have expired and the department has transmitted all written submissions to the arbitrator, the case and all evidence to be considered by the arbitrator shall be deemed to be submitted.
The arbitrator may, in the interest of justice, briefly extend the time periods for written submissions by either party.
The arbitrator shall issue his or her arbitration decision and award in writing within 30 days after the case has been submitted for a decision. This time period may be extended by the arbitrator if, in his or her judgment, clarification of the evidence submitted is required from either the complainant, the respondent or counterclaimant, or both.
No hearings or live testimony shall be conducted under the expedited arbitration procedures.
The arbitrator shall award interest at the legal rate to be paid in addition to any damages that are awarded and the arbitrator may award the recovery of costs to one party to the arbitration or apportion costs between the parties as he or she deems appropriate. Costs may include filing fees, mediation fees and expenses, fees or expenses incurred by the department, and fees paid to expert witnesses, auditors, or inspectors, but not attorney’s fees, unless there has been an agreement by the parties that the prevailing party in any dispute shall be entitled to recover reasonable attorney’s fees as part of any award for damages, and in that case, the arbitrator may award reasonable attorney’s fees to the prevailing party.
Either party to an expedited arbitration proceeding conducted pursuant to this section may bring an action in any California court of competent jurisdiction to enforce any awards for damages made pursuant to this section. If an enforcement action is necessary to secure payment of awards for damages, the party initiating the enforcement proceeding shall be entitled to recover all additional expenses, costs, and attorney’s fees incurred in connection with that proceeding.
The department shall retain jurisdiction, as provided for under Section 56445, over any matter in which a licensee refuses to pay or otherwise comply with an arbitrator’s decision conducted pursuant to the expedited arbitration procedures as set forth herein, and may immediately commence an action to revoke the license of the licensee.
A complainant may enforce his or her rights through the verified complaint and expedited arbitration process as provided herein, or by a civil action brought in any court of competent jurisdiction. This section shall in no way abridge, preclude, or alter other remedies available to the parties now existing under common law or by statute, and the provisions set forth herein are in addition to those other remedies.
The failure or refusal of any licensee to produce and make available to the director any such books or records, or otherwise to obstruct such examination or audit, is a good and sufficient ground for the suspension or revocation of his license.
ARTICLE 12. Complaints by Producers [56411. - 56415.]
For the purpose of enforcing this chapter, the director may receive verified complaints from producers or licensees against any person licensed pursuant to this chapter or Chapter 6 (commencing with Section 55401) or any person who acts or attempts to act as a licensee.
Upon receipt of any verified complaint, the director may make any and all necessary investigations relative to the complaint. The director shall, within 30 days, commence to investigate any verified complaint alleging that a licensee may be insolvent or in an unsound financial condition.
The director may administer oaths of verification on the complaints.
He shall have free and unimpeded access at all times to any building, yard, warehouse, or storage or transportation facility in which any farm product is kept, stored, handled, or transported.
He may do all of the following:
Administer oaths and take testimony under oath.
Issue subpoenas which require the attendance of witnesses before him, together with all books, memoranda, papers, and other documents, articles, or instruments.
Compel the disclosure by such witnesses of all facts which are known to them relative to the matters under investigation.
All parties disobeying the orders or subpoenas of the director are guilty of contempt and shall be certified to the superior court of the state for punishment for such contempt.
ARTICLE 13. Investigations and Hearings [56441. - 56447.]
The director on his own motion may, or upon the verified complaint of any interested party shall, investigate, examine, or inspect any of the following:
Any transaction which involves solicition, receipt, sale, or attempted sale of any farm product by any person that is acting or assuming to act as a licensee.
Failure to make proper and true account of sales and settlement of sales as required by this chapter.
The intentional making of false statements as to condition and quantity of any farm product which is received or in storage.
The intentional making of false statements as to market conditions.
The failure to make payment for any farm product within the time which is required by this chapter.
Any and all other injurious transactions.
In furtherance of any such investigation, examination, or inspection, the director may examine the ledgers, books, accounts, memoranda and other documents, farm products, scales, measures, and other articles and things which are used in connection with the business of the person.
Except as otherwise provided in Section 56444 or 56445, if the complaint is a bona fide dispute that involves any of the following, the department has no jurisdiction to act upon the complaint if the licensee or complainant, within 10 calendar days after receiving notice of the filing of the verified complaint, has notified the department of his or her election to submit the dispute to alternative dispute procedures in accordance with the provisions of a written contract:
The rejection of any farm product.
The failure or refusal to accept and pay for any farm product that is bought or contracted to be bought from a producer or by a licensee.
The failure or refusal by the licensee to furnish or provide boxes or other containers, or hauling, harvesting, or any other services that are contracted to be done by the licensee in connection with the acceptance, harvesting, or other handling of the farm product.
The terms and conditions of the written contract.
The jurisdiction that is otherwise reserved to the department in this chapter is, however, restored for the purposes of this chapter if the authorities responsible for the alternative dispute procedures, without reasonable cause, fail, refuse, or neglect to adjudicate the matter in dispute within 90 days from the date of notification to the department.
The department also has jurisdiction over any complaint or dispute if the licensee has failed to perform in accordance with any alternative dispute procedure award that is made in accordance with the terms of the written contract.
Any verified complaint filed with the department pursuant to this chapter shall be filed not later than nine months from the date a complete account of sales was due.
This period, however, does not include the length of time it takes to secure a written letter of denial from the federal agencies responsible for administering the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181, et seq.) or the federal Perishable Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.).
If a licensee fails to pay farm products creditors for any farm product that is received on consignment from the creditors, or fails to pay farm products creditors for any farm product purchased from the creditors, the department shall ascertain the names and addresses of all farm products creditors of that licensee together with the amounts due and owing to them by the licensee, and shall request all those farm products creditors to file a verified statement of their respective claims with the department. The request shall be addressed to each known farm products creditor at his or her last known address.
ARTICLE 15. Contempt [56501. - 56503.]
If any person in any proceedings before the director disobeys or resists any lawful order, refuses to respond to a subpoena, refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or is guilty of misconduct during a hearing or so near the place of the hearing as to obstruct the proceeding, the director shall certify the facts to the superior court in and for the county where the proceedings are held.
The court shall thereupon issue an order which directs the person to appear before the court and show cause why he should not be punished as for contempt. The order and a copy of the certified statement shall be served on the person. Thereafter the court shall have jurisdiction of the matter.
The same proceedings shall be had, the same penalties may be imposed and the person charged may purge himself of the contempt in the same way, as in the case of a person who has committed a contempt in the trial of a civil action before a superior court.
ARTICLE 17. Fees [56571. - 56576.]
Except as otherwise provided in this article or Section 55863, each applicant for a license shall pay to the department a fee in accordance with the schedule in subdivision (b), except that an agent shall pay one hundred dollars ($100) for each license period of the principal.
The amount of the fee due each year shall be determined by the annual dollar volume of business based on farm product value returned to the grower or licensee, as follows:
For a dollar volume of less than twenty thousand dollars ($20,000), the fee shall be two hundred fifty dollars ($250).
For a dollar volume of twenty thousand dollars ($20,000) and over, but less than fifty thousand dollars ($50,000), the fee shall be three hundred fifty dollars ($350).
For a dollar volume of fifty thousand dollars ($50,000) and over, but less than two million dollars ($2,000,000), the fee shall be four hundred fifty dollars ($450).
For a dollar volume of two million dollars ($2,000,000) and over, but less than four million dollars ($4,000,000), the fee shall be five hundred fifty dollars ($550).
For a dollar volume of four million dollars ($4,000,000) and over, the fee shall be six hundred fifty dollars ($650).
The department may reevaluate the fee structure based on operating costs. The fees shall adequately cover the costs to fully administer and operate the program in an effective and efficient manner.
The fees provided by Section 56571 are maximum fees. The secretary may fix those fees at a lesser amount, and may adjust those fees from time to time, whenever the secretary finds that the funds needed to administer this chapter must be adjusted for the sustainability of the program.
If any licensee does not apply for the renewal of a preexisting license on or before the date of the expiration of the license, a penalty of twenty-five dollars ($25) shall be added to the fee provided for under Section 56571 or 56571.5. That penalty shall be paid within 30 days immediately following the license expiration date . Payment of the penalty shall entitle the applicant to 60 days from the date of the penalty payment to complete the application. If the application is not completed within such time, the application shall be denied and all fees retained by the department.
If the penalty described in paragraph (1) is not paid within the 30-day period, any application for renewal of a preexisting license shall be treated as a new application.
A new applicant shall have 60 days from the date of filing the application form and payment of the fee to complete the application. After the 60-day period has elapsed, if the application remains incomplete, the application may be denied and the application fee retained by the department.
In addition to subdivision (a), if any person is found to be operating a business within the past five years without a license required by Section 56181, or failed to pay the fees in accordance with the schedule in subdivision (b) of Section 56571, that person shall pay to the director an amount equal to that portion of the fees which were not paid for the last five years the business has operated.
Any person who has obtained a license pursuant to this chapter may secure a license pursuant to Chapter 6 (commencing with Section 55401) by filing an application accompanied by a fee determined by the dollar volume of business based on farm product value returned to the grower, as follows:
For a dollar volume of less than fifty thousand dollars ($50,000), the fee shall be fifty dollars ($50).
For a dollar volume of fifty thousand dollars ($50,000) and over, but less than two million dollars ($2,000,000), the fee shall be one hundred forty-five dollars ($145).
For a dollar volume of two million dollars ($2,000,000) and over, the fee shall be two hundred dollars ($200).
This license shall be known as a “conjunctive license.”
Any person who has applied for and obtained a license as agent, in the manner and upon the payment of the fee which is set forth in Section 56571, whose principal has applied for and obtained a conjunctive processor’s license, pursuant to Section 56574, shall be deemed to be licensed to represent his principal under Chapter 6 (commencing with Section 55401) of this division, and no other fee shall be required of such agent.
All license fees which are collected pursuant to this chapter shall be paid into the State Treasury monthly and shall be credited to the Department of Agriculture Fund and, except as otherwise provided in Section 56133, shall be expended in carrying out this chapter.
ARTICLE 18. Violations [56602. - 56623.]
It is a violation of this chapter if the applicant or licensee has made any fraudulent charges or returns for the handling, sale, or storage of, or for rendering any service in connection with the handling, sale, or storage of any farm product.
It is a violation of this chapter if the applicant, or licensee, has failed or refused to render a true account of sales, or to make a settlement on the sales, or to pay for any farm product which is received, within the time and in the manner which are required by this chapter.
It is a violation of this chapter if the applicant, or licensee, has made any false statement as to the condition, quality, or quantity of any farm product which is received, handled, sold, or stored by him.
It is a violation of this chapter if the applicant, or licensee, directly or indirectly, has purchased for his, or its, own account any farm product which is received by him upon consignment without prior authority from consignor together with the price fixed by the consignor or without promptly notifying the consignor of such purchase. This does not prevent any commission merchant from taking to account of sales, in order to close the day’s business, miscellaneous lots of parcels of any farm product which remains unsold, if such commission merchant forthwith enters such transaction on his account of sales.
It is a violation of this chapter if the applicant, or licensee, has intentionally made any false or misleading statement as to the conditions of the market for any farm product.
It is a violation of this chapter if the applicant or licensee has made any fictitious sale or has been guilty of collusion to defraud a producer or another licensee.
It is a violation of this chapter if a commission merchant to whom any consignment is made has reconsigned such consignment to another commission merchant or employed a broker to effect the sale for the consignor and has deducted more than one charge for effecting the sale without the written consent of the consignor.
It is a violation of this chapter if the licensee was intentionally guilty of fraud or deception in the procurement of such license.
It is a violation of this chapter if the licensee or applicant has failed or refused to file with the director a schedule of his charges for services in connection with any farm product which is handled on account of, or as an agent of, another.
It is a violation of this chapter if the applicant, or licensee, has indulged in any unfair practice.
It is a violation of this chapter if the licensee:
Has rejected without reasonable cause or has failed or refused to accept without reasonable cause, any farm product which the licensee has bought or contracted to buy from another licensee or a producer.
Has failed or refused without reasonable cause to provide boxes or other containers, or hauling, harvesting, or any other service which is contracted to be done by the licensee in connection with the acceptance, harvesting, or handling of such farm product.
Has used any device to avoid acceptance or unreasonably defer acceptance of such farm product.
It is a violation of this chapter if the licensee has otherwise violated any provision of this chapter.
It is a violation of this chapter if the licensee has knowingly employed an agent, without causing the agent to comply with the licensing requirements of this chapter which are applicable to agents.
It is a violation of this chapter if the applicant or licensee has in the handling of any farm product been guilty of fraud, deceit, or willful negligence.
It is a violation of this chapter if the licensee has failed or refused, upon demand, to permit the director or his agents to make the investigations, examinations, or audits as provided in this chapter, or that the licensee has removed or sequestered any books, records, or papers which are necessary to any such investigations, examinations, or audits, or has otherwise obstructed them.
It is a violation of this chapter if the licensee without reasonable cause has failed or refused to execute or carry out a lawful contract with a producer or another licensee.
It is a violation of this chapter if the licensee has failed or refused to keep and maintain the records as required by this chapter.
It is a violation of this chapter if a dealer has obtained title to or possession, control, or delivery of any farm product from another licensee or a producer of the farm product without having executed a contract of purchase and sale, or a contract agreeing to purchase the farm product at a designated price to be paid by the dealer.
It is a violation of this chapter for a person licensed as a cash buyer to buy or otherwise take title to or possession of any farm product from a licensee or a producer of such product, except by cash payment of the full agreed price to the licensee or producer at the time of obtaining such possession or control.
Under a contract for the purchase or handling of any farm products, any delinquent payment of money under this chapter shall also include a late charge of 5 percent per month of the unpaid balance calculated on a daily basis for the period of the delinquency for the first month and an additional 1 percent per month of the unpaid balance calculated on a daily basis for the remaining period of the delinquency. Any such late charge shall be payable to the person from whom the farm product was purchased, unless the person waives, in writing, his right to such payment. Such waiver shall be valid and effective only when given after a delinquency has occurred.
This section does not affect the time of payment provided for in this chapter or in any contract for the purchase or handling of any farm product.
It is a violation of this chapter if a licensee fails, neglects, or refuses to collect or remit any assessments that have been levied in accordance with the assessment provisions of Article 10 (commencing with Section 58921) of Chapter 1 or Article 12 (commencing with Section 59941) of Chapter 2 of Part 2 of Division 21, or Article 8 (commencing with Section 64691) of Chapter 2, Chapter 3 (commencing with Section 65500) of Part 2 of Division 22, Article 5 (commencing with Section 66621) of Chapter 4, Article 6 (commencing with Section 67101) of Chapter 5, Article 6 (commencing with Section 68101) of Chapter 6, Article 6 (commencing with Section 69081) of Chapter 7, Chapter 9.5 (commencing with Section 71000), Article 6 (commencing with Section 72101) of Chapter 10, Chapter 12.6 (commencing with Section 74701), Chapter 12.7 (commencing with Section 74801), Article 6 (commencing with Section 75131) of Chapter 13, Article 6 (commencing with Section 76141) of Chapter 14, Chapter 15 (commencing with Section 76201), Chapter 16.5 (commencing with Section 77001), Chapter 17 (commencing with Section 77201), Chapter 17.5 (commencing with Section 77401), Chapter 19 (commencing with Section 77701), Chapter 20 (commencing with Section 77901) of Article 6 (commencing with Section 78285) of Chapter 21, or Article 6 (commencing with Section 78700) of Chapter 24, of Part 2 of Division 22.
It is a violation of this chapter if any commission merchant who collects or receives funds in connection with the sale of consigned farm products has made any use or disposition of these funds in his or her possession or control that endangers or impairs faithful and prompt payment to the consignor of the product or to any other person having a financial interest therein.
ARTICLE 19. Criminal Penalties [56631. - 56639.]
Except as specified in Section 56632, any misdemeanor which is prescribed in this article is punishable by a fine of not less than five hundred dollars ($500) or more than five thousand dollars ($5,000), by imprisonment in the county jail for not more than one year, or by both the fine and imprisonment.
For a violation of the offense described in subdivision (a), the department may recover investigative costs, excluding attorneys’ fees and administrative overhead, for those charges where there has been a conviction in a court of law, or a court-supervised settlement has been reached. Nothing in this section allows the department to recover investigative costs for an administrative licensing action or any action that has not been filed in a court of law.
Any person or entity responsible for investigative costs under this section shall be allowed to audit the department’s investigative costs. The audit must be performed by a third-party certified public accountant and paid for by the person or entity requesting the audit. The department shall promulgate regulations to implement this subdivision by June 1, 2002.
It is a misdemeanor for any person to assume or attempt to act, or to act, as a licensee or agent without a license and is punishable by a fine of not less than ten thousand dollars ($10,000), by imprisonment in the county jail for not more than one year, or by both the fine and imprisonment.
It is a misdemeanor for any person subject to this chapter to pay license fees in an amount less than that amount established under subdivision (b) of Section 56571. Any person who pays less than the amount established under subdivision (b) of Section 56571 for two or more consecutive years shall pay to the director treble the amount of the license fees due pursuant to this chapter.
It is a misdemeanor for any person licensed as a cash buyer to buy or otherwise take title to, or possession of, any farm product from a licensee or a producer of such product, except by cash payment of the full agreed price to the licensee or producer at the time of obtaining possession or control.
It is a misdemeanor for any person to impose any false charge for handling or services in connection with any farm product.
It is a misdemeanor for any person to fail to account promptly, correctly, fully, and properly and to make settlement of accounts as provided in this chapter.
It is a misdemeanor for any person to intentionally make any false or misleading statement as to market conditions.
It is a misdemeanor for any person to make any fictitious sale or be guilty of collusion to defraud a producer or licensee.
It is a misdemeanor for any person to directly or indirectly purchase for his own account, goods which are received by him upon consignment without prior authority from the consignor, or to fail to promptly notify the consignor of such purchases, if any, on his own account. This section does not, however, prevent any commission merchant from taking to account of sales, in order to close the day’s business, any miscellaneous lot or parcel of any farm product which remains unsold, if such commission merchant forthwith enters such transaction on his account of sales.
It is a misdemeanor for any person to intentionally make any false statement regarding the grade, conditions, markings, quality, or quantity of any goods which are shipped or packed in any manner.
It is a misdemeanor for any person to fail to comply in every respect with the provisions of this chapter.
ARTICLE 20. Civil Remedies and Penalties [56651. - 56652.]
The director may bring an action to enjoin the violation or the threatened violation of any provision of this chapter or of any order which is made pursuant to this chapter in the superior court in the county in which such violation occurs or is about to occur.
There may be enjoined in one proceeding any number of defendants that are alleged to be violating the same provisions or orders, although their properties, interests, residences, or places of business may be in several counties and the violations separate and distinct. Any proceeding which is brought pursuant to this section shall be governed in all other respects by the provisions of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure.
Any person that violates any provision of this chapter is liable civilly in the sum of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000) for each and every violation. This sum shall be recovered in an action by the secretary in any court of competent jurisdiction. All sums which are recovered pursuant to this section shall be deposited in the State Treasury to the credit of the Department of Food and Agriculture Fund.
For a violation of the offense described in subdivision (a), the department may recover investigative costs, excluding attorneys’ fees and administrative overhead, for those charges where there has been a conviction in a court of law, or a court-supervised settlement has been reached. Nothing in this section allows the department to recover investigative costs for an administrative licensing action or any action that has not been filed in a court of law.
Any person or entity responsible for investigative costs under this section shall be allowed to audit the department’s investigative costs. The audit must be performed by a third-party certified public accountant and paid for by the person or entity requesting the audit. The department shall promulgate regulations to implement this subdivision by June 1, 2002.
CHAPTER 7.2. Market Enforcement Advisory Committee [56701. - 56707.]
The definitions set forth in Article 1 (commencing with Section 55401) of Chapter 6 apply to this chapter.
For purposes of this chapter, “committee” means the Market Enforcement Advisory Committee established pursuant to Section 56702.
There is in the department a Market Enforcement Advisory Committee. The committee shall consist of up to 12 voting members, which shall include a balanced representation of growers, processors, and produce dealers, or representatives from organizations that advocate on behalf of these industry groups.
The secretary shall appoint the members of the committee after receiving recommendations from the industry. In making appointments, the secretary shall ensure that there is representation on the board from a diverse population of industries, regions, business sizes, and farm product commodities.
The secretary may appoint one additional member to the committee, from nominees received from the committee, who shall serve as the public member. The public member shall represent the interests of the public in all matters coming before the committee and shall have the same voting and other rights and immunities as other members of the committee.
It is hereby declared, as a matter of legislative determination, that persons appointed to the committee are intended to represent and further the interests of the industry concerned, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the committee, the industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The term of office for a member of the committee is three years. If a vacancy exists, the secretary shall, consistent with the membership requirements described in subdivisions (a) and (b) of Section 56702, appoint a replacement member of the committee for the duration of the term. The secretary may remove a committee member at any time.
A member of the committee shall not receive a salary but may be reimbursed by the department for attendance at meetings and other committee activities authorized by the committee and approved by the secretary.
The committee shall advise the secretary and may make recommendations on all of the following:
Procedures established and performed by the Market Enforcement Branch of the department.
Annual budgets required to accomplish the purposes of the chapters described in paragraph (1).
The setting of appropriate licensing and complaint fees necessary for the administration of the chapters described in paragraph (1).
The secretary may delegate additional advisory duties to the committee.
The committee shall annually elect a chair from its membership and, from time to time, other officers as it deems necessary.
The committee shall meet at the call of its chair or the secretary. The committee shall meet at least once a year to review an annual budget and licensing fees.
CHAPTER 8. Produce Markets [56801. - 56982.]
ARTICLE 1. Definitions [56801. - 56810.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Association” means an association of produce dealers which is organized to carry out the responsibilities of produce dealers which are imposed by this chapter.
“City” includes city and county.
“Commissioner,” with respect to any matter which relates to a particular market, means the deputy labor commissioner who is in charge of the office of the Labor Commissioner which is located nearest to that market.
“Director” means the Director of Industrial Relations.
“Farm product” means any fruit, nut, vegetable, berry, or aquacultural product.
“Market” means the places of business, collectively, of produce dealers that operate in a city, or the vicinity of a city, and that deal in any farm product which is intended, in whole or in part, for ultimate sale for consumption in a fresh state within the city and the vicinity of the city. This chapter applies only to markets in which five or more produce dealers operate.
“Registered unloader” means a person who unloads any farm product in a market. It does not, however, include any of the following:
A producer of farm products, or his or her son or daughter, father, mother, or regularly employed employee.
The operator of any vehicle which is engaged in the transporation of any farm product to market if the operation of such vehicle is subject to the jurisdiction of the Public Utilities Commission and the rate which is charged for such transporation includes the charge for unloading the farm product which is so transported.
“Union” means the labor union which has been recognized by the National Labor Relations Board, or other governmental agency which has jurisdiction, as the bargaining agency for employees who are employed in a market.
ARTICLE 2. General Provisions [56831. - 56832.]
It is the purpose of this chapter to promote the orderly marketing of farm products and the establishment of reasonable charges for unloading such products at markets in this state. It is declared that in some of the markets of this state the charges for unloading farm products have been found to be exorbitant and unreasonable and that this chapter is enacted to remedy such evils and in the interests of the public welfare.
The director may make such regulations as he may deem necessary to carry out this chapter and to effectuate its purposes.
ARTICLE 3. Exceptions [56861. - 56863.]
This chapter does not apply to any market in which less than five produce dealers operate.
This chapter does not apply to any produce dealer at whose place of business every farm product which is delivered is unloaded without charge by employees of the produce dealer either with or without the assistance of the operator of the vehicle which transports such product or other persons who accompany the operator on such vehicle. This chapter does not prohibit any employee of a produce dealer from assisting in unloading any farm product without charge if registered unloaders are not available.
This chapter does not apply to any market in Los Angeles County.
ARTICLE 4. Registered Unloaders [56891. - 56893.]
Every person who unloads any farm product in a market and who is a registered unloader shall register his name, Federal Social Security number, and address and union affiliation, if any, with the commissioner. The commissioner shall supply each registered unloader with a card of registration. Each registered unloader shall carry such card at all times while employed or seeking employment in unloading any farm product in a market. A person within the definition of the term registered unloader shall not unload any farm product in a market unless he is registered as provided in this chapter.
Every producer who transports any farm product to a market may register himself or herself, his or her parents, and his or her sons or daughters, and regular full-time employees, with the commissioner. Such registration shall show the name of the producer, the registration number and other means of identification of his or her own personally owned vehicles, and the relationship of the registrant to the producer.
This chapter does not prohibit a person so registered from unloading any farm product from a vehicle as to which he or she is so registered, and no such person is required to employ any other person to unload or assist in unloading such farm product nor to pay for any services which are not requested to be performed. The commissioner shall supply each such registrant with an appropriate card, which the registrant shall carry at all times while engaged in unloading any farm product at a market.
Every produce dealer that operates in a market is responsible for providing that registered unloaders sufficient in number to do the work which is required are available at all times when any farm product is being delivered to his place of business. He is also responsible for having on hand at his place of business at all such times a responsible person to receipt for any farm product which is unloaded at his place of business.
ARTICLE 5. Association of Produce Dealers [56921. - 56923.]
In order to facilitate the carrying out of their responsibilities pursuant to this chapter, the produce dealers that operate in a market may organize an association. A produce dealer shall not be required to become or to be a member of such association, but any such association shall admit to membership any produce dealer that operates in the market. If a produce dealer is admitted to membership in the association, he shall not be subject to any assessment or payment except those which are necessary to carry out his responsibilities pursuant to this chapter.
An association may do all of the following:
Obtain a dispatching service from which registered unloaders may be sent to the places where their services are required.
Act as the bargaining agent to establish with a union the scale of charges for unloading any farm product in the market in accordance with this chapter.
Provide for watchman service to protect and give a receipt for any farm product which is delivered to a market at times when the market is not otherwise in operation.
The costs of services of an association to its members for carrying out any of the activities which are provided for or required by this chapter are subject to review by the director. No cost or expenditure for any other purpose shall be payable by any produce dealer except on an entirely voluntary basis.
The director shall from time to time on his own motion, or at the request of a produce dealer, review the activities of the association to determine if any charge is made against any produce dealer in violation of this chapter.
ARTICLE 6. Charges for Unloading Produce [56951. - 56959.]
Each produce dealer that operates within a market shall establish a scale of charges for unloading any farm product which is transported to his place of business and shall post and maintain a legible copy of such scale in a conspicuous place at his place of business where it is readily visible at all times during which any farm product is delivered to such place of business.
Any scale of charges which is established pursuant to this article may be modified from time to time in accordance with the method and procedure which is prescribed for establishing such scale.
The scale of charges which is established shall be the standard charge for unloading any farm product in the market.
A person shall not charge or receive any payment for unloading any farm product in excess of the standard charge which is established for the market.
The scale of charges shall be established as follows:
If all the produce dealers in a market, or a majority of such produce dealers, either individually or through group representation, have an agreement with a union, the scale of charges shall be that which is prescribed in such agreement and approved as provided in this chapter. If an agreement which covers any employees of produce dealers in a market does not cover persons who unload farm products, the agreement shall be modified, or a new agreement made, to cover such persons.
If there is no such union, the scale of charges shall be fixed by the produce dealers that operate within the market.
In either event, the scale of charges is subject to the approval of the director.
Upon the determination of a scale of charges for a market, the scale of charges shall be transmitted to the director. The director shall examine such scale and shall compare it with any available information relative to the charges for similar work which is performed under similar conditions in the city in, or for, which the market is operated. The director may take into consideration any and all factors which are relevant to the determination of the reasonableness of such charges, including any rates of the Public Utilities Commission for the performance of work of a similar nature.
If the director determines that the scale of charges is not unreasonable, he shall approve the scale and thereafter the scale of charges shall be the standard charge for unloading any farm product in the market.
If the director finds that the scale of charges is unreasonable, he shall fix a time and place for a hearing on the matter.
Notice of such hearing shall be mailed to each produce dealer that operates in the market and to the officials of the union, if a union is involved. The director may also notify any or all producers of any farm product which is delivered to the market.
At the hearing the director shall consider any relevant matters that may be presented and, at or after the conclusion of such hearing, he shall so adjust the scale or any item of the scale so that the scale is not unreasonably higher than the prevailing rate for similar work which is performed under similar conditions in the city or its vicinity.
ARTICLE 7. Penalties [56981. - 56982.]
The violation of any provision of this chapter by any person is a misdemeanor.
The violation of any provision of this chapter by a produce dealer is grounds for the revocation of his license, and the violation of any provision of this chapter by an association is grounds for the revocation of the license of each produce dealer that participates in such violation.
CHAPTER 8.5. Produce Markets in Alameda, San Francisco, and San Mateo Counties [57001. - 57043.]
ARTICLE 1. Definitions [57001. - 57013.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Association” means an association of produce dealers which is organized to carry out the responsibilities of produce dealers which are imposed by this chapter.
“City” includes city and county.
“Commissioner,” with respect to any matter which relates to a particular market, means the deputy labor commissioner who is in charge of the office of the Labor Commissioner which is located nearest to that market.
“Director” means the Director of Industrial Relations.
“Farm product” means any fruit, nut, vegetable, berry, or aquacultural product.
“Hauler” means any trucker or carrier.
“Market” means the places of business, collectively, of produce dealers that operate in a city, or the vicinity of a city, and that deal in any farm product which is intended, in whole or in part, for ultimate sale for consumption in a fresh state within the city and the vicinity of the city. This chapter applies only to any market in which five or more produce dealers operate in the Counties of Alameda, San Francisco, and San Mateo and the provisions of Chapter 8 (commencing with Section 56801) of this division shall not be applicable to any such market.
“Producer” means any person who commercially grows and markets farm products.
“Registered unloader” means a person who unloads any farm product in a market. It does not, however, include any of the following:
A producer of farm products, or his son or daughter, father or mother, or regularly employed employee of such producer.
The operator of any vehicle which is engaged in the transportation of any farm product to market if the operation of such vehicle is subject to the jurisdiction of the Public Utilities Commission and the rate which is charged for such transportation includes the charge for unloading the farm product which is so transported.
“Union” means the labor union which has been recognized by the National Labor Relations Board, or other governmental agency which has jurisdiction, as the bargaining agency for employees who are employed in a market.
ARTICLE 2. General Provisions and Exceptions [57015. - 57018.]
It is the purpose of this chapter to promote the orderly marketing of farm products and the establishment of reasonable charges for unloading such products at markets in this state. It is declared that in some of the markets of this state the charges for unloading farm products have been found to be exorbitant and unreasonable and that this chapter is enacted to remedy such evils and in the interests of the public welfare.
The director may make such regulations as he may deem necessary to carry out this chapter and to effectuate its purposes.
This chapter does not apply to any market in which less than five produce dealers operate.
This chapter does not apply to any produce dealer at whose place of business every farm product which is delivered is unloaded without charge by employees of the produce dealer either with or without the assistance of the operator of the vehicle which transports such product or other persons who accompany the operator on such vehicle. This chapter does not prohibit any employee of a produce dealer from assisting in unloading any farm product.
ARTICLE 3. Registered Unloaders [57021. - 57024.]
Every person who unloads any farm product in a market and who is a registered unloader shall register his name, federal social security number, and address and union affiliation, if any, with the commissioner. The commissioner shall supply each registered unloader with a badge of registration. Each registered unloader shall wear such badge at all times while employed or seeking employment in unloading any farm product in a market. A person within the definition of the term registered unloader shall not unload any farm product in a market unless he is registered as provided in this chapter.
Every producer who transports any farm product to a market may register himself, his father or mother, and his sons or daughters, and regular full-time employees, with the commissioner. Such registration shall show the name of the producer and the relationship of the registrant to the producer. The commissioner shall supply each such registrant with an appropriate badge, which the registrant shall wear at all times while engaged in unloading any farm product at a market.
This chapter does not prohibit a person from unloading any farm product, and no person is required to employ any other person to unload or assist in unloading such farm product nor to pay for any services which are not requested to be performed.
Every produce dealer that operates in a market is responsible for having on hand at his place of business a responsible person to receipt for any farm product which is unloaded at his place of business during posted receiving hours.
All vehicles shall be unloaded in a timely manner and in the order in which they arrive at the market, when the vehicles are unloaded by registered unloaders.
ARTICLE 4. Association of Produce Dealers [57025. - 57028.]
In order to facilitate the carrying out of their responsibilities pursuant to this chapter, the produce dealers that operate in a market may organize an association. A produce dealer shall not be required to become or to be a member of such association, but any such association shall admit to membership any produce dealer that operates in the market. If a produce dealer is admitted to membership in the association, he shall not be subject to any assessment or payment except those which are necessary to carry out his responsibilities pursuant to this chapter.
An association may provide for watchman service to protect and give a receipt for any farm product which is delivered to a market at times when the market is not otherwise in operation.
The costs of services of an association to its members for carrying out any of the activities which are provided for or required by this chapter are subject to review by the director. No cost or expenditure for any other purpose shall be payable by any produce dealer except on an entirely voluntary basis.
The director shall from time to time on his own motion, or at the request of a produce dealer, review the activities of the association to determine if any charge is made against any produce dealer in violation of this chapter.
ARTICLE 5. Charges for Unloading Produce [57031. - 57039.]
Any union representing registered unloaders is authorized and entitled to bargain with the employer of the registered unloaders to establish a scale of charges for unloading produce.
If the union or unions representing registered unloaders and the employer of registered unloaders are unable to agree on a scale of charges, the Public Employment Relations Board shall mediate the dispute pursuant to Section 3601 of the Government Code.
The scale of charges in effect on December 31, 1978, shall remain in effect until new charges are established pursuant to this section.
The scale of charges which is established shall be the standard charge for unloading any farm product in the market.
A person shall not charge or receive any payment for unloading any farm product in excess of the standard charge which is established for the market.
Each produce dealer shall post and maintain a legible copy of the effective scale of charges established under this article in a conspicuous place at his place of business where it is readily visible at all times during which any farm product is delivered to such place of business.
The commissioner or his representative shall investigate any complaint brought to his attention involving produce dealers or registered unloaders.
If a scale of charges is not established pursuant to bargaining as provided for in Section 57031, the union may propose a scale of charges for approval by the director.
After receipt of the scale of charges proposed by the union pursuant to Section 57036, the director shall fix a time and place for a hearing on the matter. Notice of the hearing shall be published and mailed to each produce dealer in the Counties of Alameda and San Mateo and in the City and County of San Francisco and to the union. The director shall also notify any or all haulers and producers of any farm product which is delivered to the market.
At the hearing the director shall consider any relevant matters that may be presented.
At or after the conclusion of the hearing, the director shall determine whether or not the proposed scale is reasonable. If the director determines that the proposed scale is reasonable, the director shall approve it and thereafter that scale of charges shall be the standard charge for unloading any farm product in the market. If the director determines that the scale is unreasonable, the director shall adjust the scale or any item of the scale so that the scale is not unreasonably higher than the prevailing rate for similar work which is performed under similar conditions. After this adjustment, the scale shall be the standard charge for unloading any farm product in the market.
In making the determination and, if necessary, the adjustment required in subdivision (b), the director shall compare the scale proposed by the union with any available information relating to the charges for similar work which is performed under similar conditions in the city in, or for, which the market is operated. The director may take into consideration any rates set by the Public Utilities Commission for the performance of work of a similar nature.
The director may by regulation establish a fee in the amount necessary to cover the costs that are incurred by the Department of Industrial Relations in implementing this article. Each party participating in a hearing conducted pursuant to this article shall pay an equal share of the fee.
ARTICLE 6. Penalties [57041. - 57043.]
Violation of any provision of this chapter or laws affecting personal injury or property damage by a produce dealer or registered unloader is grounds for license or registration revocation or suspension.
Before suspending or revoking any registration or license under this chapter, the commissioner shall afford the holder of such registration or license an opportunity to be heard in person or by counsel. The proceedings shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the commissioner shall have all the powers granted therein.
The director may assess a fee not to exceed four hundred dollars ($400) per year payable by produce dealers for use exclusively in administering the provisions of this chapter.
The violation of any provision of this chapter by any person is a misdemeanor.
CHAPTER 9. Dairy Produce Exchanges [57101. - 57222.]
ARTICLE 1. Definitions and General Provisions [57101. - 57103.]
“Dairy produce exchange” means any association of persons which is organized for the following purposes:
Furnishing a medium for trading in butter, cheese, or eggs.
Facilitating the marketing of any such product.
Establishing the wholesale market value of any such product.
The director may require such monthly or other periodical reports, records of market quotations, and other statistical information as may be necessary to him in administering this chapter. All such reports, statistics, or information which is pertinent to each dairy produce exchange which is licensed pursuant to this chapter shall be kept on file in the office of the director and subject to public inspection.
The director shall have access to all records of every dairy produce exchange which is licensed pursuant to this chapter, and may appoint a representative to sit with the board of directors or other governing body of such exchange.
ARTICLE 2. Licenses [57131. - 57134.]
It is unlawful for any person to establish or operate a dairy produce exchange unless he has first obtained from the director a license to do so.
Every dairy produce exchange, and any person that desires to operate a dairy produce exchange, before engaging in such activity, shall file with the director a written application for a license, accompanied by the license fee which is prescribed by Section 57134. The application shall state all of the following information:
The name under which the dairy produce exchange proposes to operate.
The location of its place of business.
The names of its officers, directors, and the persons, firms, corporations, or associations which constitute its membership.
A certified copy of its articles of incorporation, its constitution and bylaws, and the rules and regulations and bases of trade under which it proposes to operate.
The director shall examine the application, and if he finds that the applicant has fully complied with the provisions of this chapter, he shall issue a license which authorizes the applicant to operate a dairy produce exchange. The license shall recite in bold type that the issuance of the license is permissive only and does not constitute a recommendation or endorsement of the rules and regulations or bases of trade under which the applicant proposes to operate.
For each license, the director shall charge the sum of one hundred dollars ($100), which sum shall accompany the application for the license. Except as otherwise provided in this chapter, each license which is issued by the director shall continue in effect so long as the licensee shall continue in business, and shall pay a fee of one hundred dollars ($100) annually to the director. Such fee is payable on the first Monday of each calendar year.
ARTICLE 3. Arbitration [57161. - 57165.]
The director shall act as arbitrator in all cases of dispute or contention which concerns the maintenance or operation of any licensed dairy produce exchange, or the bylaws, rules, or regulations which pertain to it.
Upon receipt of any verified complaint which concerns a licensed dairy produce exchange, the director shall proceed to make a thorough investigation. In this connection, the director:
May conduct hearings, of which all interested parties shall receive due notice, and may require written statements which set forth the views of any or all contending parties.
Shall invite the cooperation and solicit the opinion of the Federal Trade Commission and the Economic Research Service of the United States Department of Agriculture.
On the basis of the information which is so obtained, the director shall prescribe a tentative rule which shall be effective in the operation of any licensed dairy produce exchange for not to exceed 90 days.
If, after such trial period, it appears that the tentative rule operates in a fair and equitable manner, it shall then, upon order of the director, be made a permanent rule of such licensed dairy produce exchange.
If, in the conduct of any such investigation, it appears that any unlawful act has been committed by any licensed dairy produce exchange, the director may initiate appropriate legal proceedings against such exchange.
ARTICLE 4. Investigations, Hearings, and Suspension or Revocation of Licenses [57191. - 57193.]
The director may upon his own motion, and shall upon the verified complaint in writing of any person, investigate the actions of any dairy produce exchange and may temporarily suspend or permanently revoke any license which is issued pursuant to this chapter if the licensee is guilty of any of the following:
Failure to supply all the information which is required by subdivisions a, b, c, and d of Section 57132.
Making any false statement or misrepresentation of fact to the director.
Fraud or deception in the application for or procurement of a license.
Any other conduct, whether of the same or a different character than the conduct which is specified in this section, which is unlawful.
Violation of any law or ordinance of the state or any city or county or the rules of the Federal Trade Commission which govern unfair trade practices in the handling of butter, cheese, or eggs.
The proceedings shall be conducted in accordance with Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2 of the Government Code, and the director shall have all the powers which are granted in that chapter.
If judicial review of the decision of the director is sought, the decision of the director shall remain in effect pending the determination of the review, unless the party that seeks the review files with the court a bond in a sum to be fixed by the court, in favor of the people and conditioned upon the faithful performance of all those things which are ordered to be done, or the faithful observance of such restraint as may be directed by the director. The bond shall be for the benefit of any person that has dealings with the person that seeks the review.
ARTICLE 5. Violations and Penalties [57221. - 57222.]
Any person that operates a dairy produce exchange without a license is guilty of a misdemeanor and shall also pay to the state one hundred dollars ($100) for each and every day of such operation. Any money which is due the state pursuant to this section shall be recovered by an action at law brought by the Attorney General in the name of the people.
Any person that makes any false statement in applying for a license or violates any rule or decision of the director which is authorized by this chapter is guilty of a misdemeanor.
CHAPTER 10. Private Produce Inspection [57301. - 57309.]
The commissioner shall require any person, except a county, state, or federal inspection agency, who, for payment by a private party, reports upon the condition of lots of fresh fruits or vegetables offered for sale other than for processing to register with the commissioner. The commissioner shall maintain a registry of these persons which shows the name and business address, market or markets at which inspections are made, the products inspected, and additional matters that the commissioner requires. The commissioner shall forward this information to the director who shall maintain a central registry on a statewide basis. A produce inspector who is registered in one county where he or she does business may do business in any other county without registering in the other county if the commissioner in the other county is provided proof of registration.
The board of supervisors may, pursuant to this chapter, establish a registration fee in an amount necessary to cover the actual costs of the commissioner for that registration.
Each registered inspector shall maintain a copy of each written report of the date, lot description, volume, and condition of the commodity inspected. Condition shall include the grade or other criteria used to evaluate the product. If a report has been made orally, a written confirmation shall be prepared within 24 hours and retained in the same manner as a written report. Reports need not name the person to whom the advice was given, but the names shall be maintained so that they may be matched to the respective reports upon request of the commissioner. Reports shall be maintained for a period of not less than 90 days and shall be made available to the commissioner upon demand.
If the commissioner or the director receives a complaint from an interested party that any report required to be kept by Section 57303 is materially inaccurate, the commissioner may investigate the matter and shall give a report of findings to all interested parties.
The remedies or penalties in this chapter are cumulative to each other and to the remedies or penalties available under all other laws of this state.
If the commissioner finds that a registered inspector has repeatedly given inaccurate information or failed to maintain required records, the commissioner may, after a hearing, cancel or suspend the registration.
Any person who violates this chapter shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General at the request of the director. Any funds recovered pursuant to this subdivision shall be deposited in the Department of Food and Agriculture Fund.
An action may also be brought pursuant to this section by the district attorney at the request of the commissioner in the county in which the offense occurred. Any funds recovered pursuant to this subdivision shall be deposited in the general fund of the county.
It is unlawful for any person to act as a registered inspector unless currently registered by the commissioner.
It is unlawful for any person to misrepresent the quality of any commodity inspected or to fail to make and maintain the records required by the commissioner.
CHAPTER 11. Dairy Cattle Supply Lien [57401. - 57414.]
The definitions in this section govern the construction of this chapter.
“Feed or materials” means commercial feed, grain, forage, feed ingredients, mineral feed, drugs, animal health products, customer-formula feed, any mixture or preparation for feeding animals, any of the constituent nutrients of an animal ration, or any other food which is used for the feeding of dairy cattle.
“Person obligated on any proceeds” means a handler, as defined in Section 61826, who is in possession of proceeds.
“Proceeds” means funds derived from the sale of milk or milk products which are payable to the lien debtor by the possessor of the funds, except for any of the following:
Deductions for taxes, fees, and assessments.
Funds due or owing milk processing cooperative associations organized and operating pursuant to Chapter 1 (commencing with Section 54001).
Funds retained by the cooperative association.
Deductions made pursuant to a court order.
Deductions due or owing the buyer of the milk for hauling services provided by the buyer pursuant to subdivision (e) of Section 62096 and deductions due or owing the buyer for the testing of milk for purposes of payment pursuant to Section 34231.
“Raising or maintaining of dairy cattle” means feeding, pasturing, caring for, and managing dairy cattle kept or raised for use or profit.
“Reasonable or agreed charges” means the agreed price, if any, for the feed and materials sold to the lien debtor, at the lien debtor’s request. If there is no agreed price or a method for determining price which is agreed upon, “reasonable or agreed charges” means the reasonable value of the feed or materials as of the date of delivery.
A person who provides feed or materials to aid the raising or maintaining of dairy cattle or offspring therefrom has a lien upon the proceeds of the milk or milk products produced from the dairy cattle, for the reasonable or agreed charges for the feed or materials provided and for the costs of enforcing the lien. However, the amount of charges secured by the lien cannot exceed an amount equal to the reasonable or agreed charges for feed or material provided within a 60-day period, and only two providers of feed or materials shall have an enforceable lien at any time according to the priority set forth in Section 57406. Only one lien under this chapter per dairy producer is available per affiliated business supplier.
The lien created pursuant to this chapter attaches to proceeds.
Except as otherwise provided in this chapter, the notice of claim of lien shall remain in effect, and no new notice of claim of lien shall be required in order to maintain the lien, as long as the person who provides feed or materials either (1) remains unpaid for amounts secured by the lien, or (2) continues to provide feed or materials on a regular basis to the lien debtor. For purposes of this section, providing feed or materials shall not be deemed to be made on a regular basis if a period of more than 30 days elapses between deliveries.
The lien created by this chapter shall be perfected by the filing of a notice of claim of lien with the Secretary of State and service of the notice of claim of lien pursuant to subdivision (e).
The person who provides feed or materials may, at any time, file in the manner and at the place set forth in this section, the notice of claim of lien.
The notice of claim of lien shall, at a minimum, set forth all of the following information:
The name and address of the lien claimant.
The last known name and address of the lien debtor.
The location of the dairy to which the feed and materials were provided.
That the lien claimant has a dairy cattle supply lien pursuant to Section 57402.
The notice of claim of lien shall be filed on a form which is the standard form of original financing statement prescribed by the Secretary of State pursuant to Section 9521 of the Commercial Code. The standard form shall be completed with the following changes:
The notice of claim of lien shall be filed, indexed, and marked in the office of the Secretary of State in the same manner as a financing statement is filed, indexed, and marked pursuant to Section 9519 of the Commercial Code.
The lien claimant shall provide written notice of the claim of lien to the following persons within 10 days of the date of the filing with the office of the Secretary of State:
The lien debtor.
Any person from which the lien claimant has received, before the lien claimant files the notice, notification of a claim of an interest in the proceeds.
Any other secured party or lienholder that, 10 days before the filing of the notice, held a security interest in or other lien on the proceeds perfected by the filing of a financing statement that satisfied all of the following conditions:
The statement identified the proceeds by referring to all assets, all personal property, goods, farm products, milk, or milk products, or otherwise identified the proceeds by any other description sufficient pursuant to Section 9108 of the Commercial Code.
The statement was indexed under the debtor’s name as of that date.
The statement was filed against the debtor covering the proceeds as of that date and was filed in the office or offices in which a financing statement may be filed pursuant to Section 9501 of the Commercial Code.
Any other secured party that, 10 days before the filing of the notice, held a security interest in the proceeds perfected by compliance with a statute, regulation, or treaty described in subdivision (a) of Section 9311 of the Commercial Code.
If the lien debtor is an entity, notice shall be given to the lien debtor’s registered agent for service of process. If the lien debtor is an individual or general partnership, the notice shall be given at any address at which the individual conducts business.
Any notice to be given to a person pursuant to subparagraph (B) of paragraph (1) shall be given to that person at the address set forth in the notification of claim of interest given by that person or, if no address is set forth, to the person’s registered agent for service of process if the person is an entity or at any address at which the person does business if the person is an individual or general partnership.
Notice given to a secured party pursuant to subparagraph (C) of paragraph (1) shall be given to the secured party at the address set forth in the financing statement on file for the secured party.
Notice to be given to a secured party pursuant to subparagraph (D) of paragraph (1) shall be given to the secured party at the address set forth in the document creating the perfection and compliance or, if no address is set forth, to the secured party’s registered agent for service of process if the secured party is an entity or at an address at which the secured party does business if the secured party is an individual or general partnership.
For the purpose of the Secretary of State’s index pursuant to Sections 9515, 9516, and 9522 of the Commercial Code and for the purpose of the issuance of a certificate pursuant to Section 9519 or 9528 of the Commercial Code, the Secretary of State shall identify a notice pursuant to this section as a financing statement.
Within 20 days after a lien claimant receives a demand from a lien debtor, the lien claimant shall send to the lien debtor a termination statement for the notice of claim of lien or file the termination statement in the office of the Secretary of State, if the lien perfected by the notice of claim of lien has terminated pursuant to the provisions of Section 57403. Upon the filing of a termination statement with the office of the Secretary of State, the notice of claim of lien to which the termination statement relates ceases to be effective.
The priority of conflicting interests, agricultural liens, and the agricultural lien created under this chapter shall be governed by subdivisions (a) to (f), inclusive, of Section 9322 of the Commercial Code.
Except to the extent specifically set forth in this chapter, the lien created by this chapter shall be subject to Division 9 (commencing with Section 9101) of the Commercial Code.
A member of the public may obtain a certificate identifying whether there is a lien on file and any notice of claim of lien naming a particular debtor, and if so, giving the date and time of filing of each notice, and the names and addresses of each lienholder therein. The fee for the certificate is the same as the fee for a certificate issued pursuant to Section 9525 of the Commercial Code.
A member of the public may obtain a copy of any notice of claim of lien filed pursuant to this chapter, including notices affecting the notices. The fee for these copies shall be the same as that prescribed in Section 9525 of the Commercial Code.
The Secretary of State may adopt any regulations necessary to carry out his or her duties pursuant to this chapter, including prescribing necessary forms.
A lien created pursuant to this chapter is assignable or transferable by the holder of the lien, with full rights of enforcement. A lienholder’s statement of assignment or transfer shall be filed with the Secretary of State in the same manner as a secured party’s statement of assignment or transfer as prescribed in Section 9514 of the Commercial Code.
After payment default by the lien debtor, the lien claimant may foreclose on a lien created by this chapter in the following manners:
The lien claimant may foreclose in an action to recover the reasonable or agreed charges for feed and materials delivered. In such an action, the final judgment may be enforced pursuant to Title 9 (commencing with Section 680.010) of Part 2 of the Code of Civil Procedure.
Provided that the lien claimant provides concurrent notice to the lien debtor and the parties set forth in subdivision (e) of Section 57405, the lien claimant may notify any person obligated on any proceeds subject to the lien created under this chapter to make payment to, or otherwise render performance to or for the benefit of, the lien claimant, provided that the lien claimant may not demand that payment or performance be made at any time prior to 15 calendar days following the date of notice.
The lien claimant may enforce the obligations of any person obligated on any proceeds subject to the lien created under this chapter and exercise the rights of the lien debtor with respect to the proceeds and any property that secures the right to the proceeds subject to the lien created under this chapter.
A lien claimant that receives proceeds pursuant to a notice provided pursuant to paragraph (2) of subdivision (a) shall account to, and pay the lien debtor for, any surplus, and the lien debtor shall be liable for any deficiency.
Nothing in this chapter shall prohibit a lien claimant from applying pursuant to Title 6.5 (commencing with Section 481.010) of Part 2 of the Code of Civil Procedure for a right to attach order and a writ of attachment, or temporary protective order, by filing an application for the order, writ, or temporary protective order with the court in which the action is brought.
Notwithstanding the receipt of a notice pursuant to paragraph (2) of subdivision (a), a person obligated on any proceeds subject to a lien created under this chapter shall have no liability to a lien claimant for failure to comply with that notice to the extent that the person obligated on the proceeds pays the proceeds subject to the notice as follows:
To a person holding a lien or security interest that is prior to the lien of the lien claimant issuing the notice.
In satisfaction of a contractual assignment or valid notice provided pursuant to Section 9607 of the Commercial Code has been received from the person obligated on the proceeds prior to the receipt of the notice pursuant to paragraph (2) of subdivision (a).
A person obligated on any proceeds subject to the lien created under this chapter and who makes payment pursuant to the notice required by paragraph (2) of subdivision (a) shall not be deemed, to the extent of that payment, to be in violation of the applicable provisions of law relating to failure to pay the amounts to the lien debtor and shall not be deemed to have engaged in an unlawful trade practice.
A lien debtor may secure a release of a lien created under this chapter by doing one of the following:
Paying the amount secured by the lien.
Depositing with the Secretary of Food and Agriculture a surety bond that is executed by the lien debtor as principal and by a surety company that is qualified and authorized to do business in this state as a surety in an amount that equals the current amount secured by the lien. If the lien debtor fails to pay the claims, up to the amount of the bond, of the lien claimant within 35 days after entry of final judgment in favor of the lien claimant, the surety shall pay all lawful claims that are covered by the amount of the lien, up to the amount of the bond, if an action is filed on the bond.
When a lien claimant receives payment for amounts secured by the lien and the lien claimant has not been providing feed or materials for a period of 30 consecutive days, the lien claimant shall, on written demand by the debtor, send the debtor a statement that he or she no longer claims a security interest under the statement, which shall be identified by date, names of parties thereto, and file number. If the affected lienholder of record fails to send such a termination statement within 10 days after proper demand therefor, he or she shall be liable to the debtor for all actual damages suffered by the debtor by reason of this failure, and, if the failure is in bad faith, for a penalty of one hundred dollars ($100).
The filing officer shall mark each termination statement with the date and time of filing and shall index the statement under the name of the debtor and under the file number of the original lien. If the filing officer has a microfilm or other photographic record of the lien and related filings, he or she may remove the originals from the files at any time after receipt of the termination statement and destroy them, or if he or she does not have the record, he or she may remove them from those files at any time after one year after receipt of the termination statement and destroy them.
CHAPTER 12. Poultry and Fish Supply Lien [57501. - 57545.]
ARTICLE 1. Definitions [57501. - 57507.]
“Feed or materials” means commercial feed, grain, forage, feed ingredients, mineral feed, drugs, poultry or fish health products, customer-formula feed, any mixture or preparation for feeding poultry or fish, any of the constituent nutrients of a poultry or fish ration, or any other food which is used for the feeding of poultry or fish.
“Fowl” means chickens, turkeys, ducks, geese, and other domesticated birds.
“Poultry” means domesticated fowl and domesticated rabbit which is intended for use for human food.
“Proceeds” means funds derived from the sale of eggs, poultry, fish, or other products derived from eggs, poultry, or fish payable to the lien debtor. “Proceeds” do not include any of the following:
Deductions for taxes, fees, and assessments.
Funds due or owing egg or poultry processing cooperative associations organized and operating pursuant to Chapter 1 (commencing with Section 54001).
Funds retained by the cooperative association.
Deductions made pursuant to a court order.
“Raising or maintaining of poultry or fish” means feeding, housing, caring for, and managing poultry or fish kept or raised for use or profit.
“Reasonable or agreed charges” means the agreed price, if any, for the feed and materials sold to the lien debtor, at the lien debtor’s request. If there is no agreed price or a method for determining price which is agreed upon, “reasonable or agreed charges” means the reasonable value of the feed or materials as of the date of delivery.
ARTICLE 2. Poultry and Fish Supply Lien [57510. - 57519.]
A person who provides feed or materials to aid the raising or maintaining of poultry or fish or for the production of eggs has a lien upon the proceeds of the sale of the eggs, poultry, fish, or other products derived from eggs, poultry, or fish, for the reasonable or agreed charges for the feed or materials provided, and for the costs of enforcing the lien. However, the amount of charges secured by the lien shall not exceed an amount equal to the reasonable or agreed charges for feed or material provided within a 45-day period, and only two providers of feed or materials shall have an enforceable lien at any time according to the priority set forth in Section 57525.
The lien created pursuant to this chapter attaches to the proceeds.
Except as otherwise provided in this chapter, the notice of claim of lien shall remain in effect, and no new notice of claim of lien shall be required in order to maintain the lien, as long as the person who provides feed or materials either (1) remains unpaid for amounts secured by the lien, or (2) continues to provide feed or materials on a regular basis to the lien debtor. For purposes of this section, providing feed or materials shall not be deemed to be made on a regular basis if a period of more than 30 days elapses between deliveries.
The lien created by this chapter shall be perfected and shall be effective upon the filing of a notice of claim of lien with the Secretary of State pursuant to this article.
Any person who provides feed or materials may, at any time, file in the manner and at the place set forth in this article, the notice of claim of lien.
The notice of claim of lien shall contain all of the following information:
The name and address of the lien claimant.
The name and address of the lien debtor.
The location of the property to which the feed and materials were delivered.
That the lien claimant has a poultry or fish supply lien pursuant to Section 57510.
The notice of claim of lien shall be signed by the lien claimant or by a person authorized to sign documents of a similar kind on behalf of the claimant.
The notice of claim of lien shall be filed on a form which is the standard form of original financing statement prescribed by the Secretary of State pursuant to Section 9521 of the Commercial Code. The standard form shall be completed with the following changes:
The lien claimant may be identified either as a lien claimant or as a secured party.
The form shall be signed by the lien claimant and need not be signed by the lien debtor.
In the space for the description of the collateral there shall instead be entered the information specified in subdivisions (c) and (d) of Section 57514.
The notice of claim of lien shall be filed, indexed, and marked in the office of the Secretary of State in the same manner as a financing statement is filed, indexed, and marked pursuant to Section 9519 of the Commercial Code.
The lien claimant shall provide written notice of the claim of lien to the lien debtor within 10 days of the date of the filing with the office of the Secretary of State.
For the purpose of the Secretary of State’s index pursuant to Section 9519 of the Commercial Code and for the purpose of the issuance of a certificate pursuant to Section 9519 or 9528 of the Commercial Code, the Secretary of State shall identify a notice pursuant to this article as a financing statement.
ARTICLE 3. Priority of Liens [57525. - 57525.]
The lien created by this chapter shall have the priority in accordance with the time the notice of claim of lien is filed.
The lien created by this chapter shall have the same priority as a security interest perfected by the filing of a financing statement as of the date the notice of claim of lien was filed.
ARTICLE 4. Information Concerning Lien [57530. - 57531.]
A member of the public may obtain a certificate identifying whether there is a lien on file and any notice of claim of lien naming a particular debtor, and if so, giving the date and time of filing of each notice, and the names and addresses of each lienholder therein. The fee for the certificate is the same as the fee for a certificate issued pursuant to Section 9525 of the Commercial Code.
A member of the public may obtain a copy of any notice of claim of lien filed pursuant to this chapter, including notices affecting the notices. The fee for these copies shall be the same as that prescribed in Section 9525 of the Commercial Code.
ARTICLE 5. Enforcement of Lien [57535. - 57537.]
The lien claimant shall provide written notice to secured creditors at least 30 days prior to enforcing a claim of lien. For the purposes of this section, “secured creditors” means those creditors having a perfected security interest in poultry, eggs, poultry products, fish, fish products, or the proceeds thereof, as of the date the notice of claim of lien is filed with the Secretary of State.
The lien claimant shall foreclose on a lien created by this chapter only in an action to recover the reasonable or agreed charges for feed and materials provided. The final judgment shall be enforced pursuant to Title 9 (commencing with Section 680.010) of the Code of Civil Procedure.
When a lien claimant receives payment for the total amounts secured by the lien and the lien claimant has not provided feed for materials for a period of 30 consecutive days, the lien claimant shall, on written demand by the debtor, send the debtor a statement that he or she no longer claims a security interest under the statement, which shall be identified by the date, names of parties thereto, and file number. If the affected lienholder of record fails to send the termination statement within 10 days after proper demand therefor, he or she is liable to the debtor for actual damages suffered by the debtor by reason of this failure, and, if the failure is in bad faith, for a penalty of one hundred dollars ($100).
The filing officer shall mark each termination statement with the date and time of filing and shall index the statement under the name of the lien debtor and under the file number of the original lien. If the filing officer has a microfilm or other photographic record of the lien and related filings, he or she may remove and destroy the originals from the files at any time after receipt of the termination statement. If the filing officer does not have the record, he or she may remove and destroy the originals from the files at any time after one year after receipt of the termination statement.
ARTICLE 6. Assignment of Lien [57540. - 57541.]
A lien created pursuant to this chapter is assignable or transferable by the holder of the lien, with full rights of enforcement. The lienholder shall file a statement of assignment or transfer with the Secretary of State in the same manner as a secured party’s statement of assignment or transfer as prescribed in Section 9514 of the Commercial Code.
Except to the extent specifically set forth in this chapter, the lien created by this chapter is subject to Division 9 (commencing with Section 9101) of the Commercial Code.
ARTICLE 7. Miscellaneous [57545. - 57545.]
The Secretary of State may adopt any regulations necessary to carry our his or her duties pursuant to this chapter, including prescribing necessary forms.
CHAPTER 13. Agricultural Chemical and Seed Lien [57551. - 57595.]
ARTICLE 1. Definitions [57551. - 57555.]
“Agricultural chemical” means fertilizers, fertilizer material, lime, chemical compounds, pesticides, pesticide chemicals, plant regulators, plant amendments, plant food, soil amendments, herbicides, fungicides, and agricultural chemicals that are applied to crops or to land that is used for the raising of crops.
“Agricultural seed” means the seed of any domesticated grass or cereal, of any vegetable, flower, or propagated plant, and of any legume or other plant which is grown as turf, cover crop, forage crop, fiber crop, or field crop, and mixtures of the seed.
“Labor” means labor or service performed in the application, delivery, or preparation of an agricultural chemical or agricultural seed provided by the seller of the agricultural chemical or agricultural seed.
“Proceeds” means funds received by the lien debtor from the sale of the crop on which the agricultural chemical was applied or for which the agricultural seed was used. “Proceeds” do not include any of the following:
Deductions for taxes, fees, and assessments.
Funds due or owing to a cooperative association organized and operating pursuant to Chapter 1 (commencing with Section 54001).
Funds retained by the cooperative association.
Deductions made pursuant to a court order.
“Reasonable or agreed charges” means the agreed price, if any, for agricultural chemicals or agricultural seeds sold to the lien debtor, at the lien debtor’s request, and for labor. If there is no agreed price or a method for determining price which is agreed upon, “reasonable or agreed charges” means the reasonable value of the agricultural chemicals and labor or agricultural seeds and labor as of the date of application, delivery, or preparation.
ARTICLE 2. Agricultural Chemical and Seed Lien [57561. - 57570.]
A person who provides agricultural chemical or agricultural seed is not entitled to establish a lien pursuant to this chapter, unless that person has first sent to the lien debtor a written notice, by certified mail, which states all of the following:
The payment of the reasonable or agreed charges is more than 30 days overdue. This requirement does not apply to deliveries of agricultural chemicals and seed and related labor that are made subsequent to deliveries which are overdue.
The amount of reasonable or agreed charges that are overdue.
The lien debtor has the following three alternatives:
Allow the lien to be filed.
Enter into a consensual security interest in the proceeds, pursuant to the Commercial Code.
Pay the reasonable or agreed charges that are overdue.
In 10-point type or bolder, notify the lien debtor that he or she has 10 days from receipt of the notice to select an alternative, notify the lien claimant of the alternative selected, and satisfy all the requirements of the selected alternative, and that the lien claimant may file the notice of claim of lien pursuant to this chapter at any time thereafter if the lien debtor does not comply with the requirements of this section.
A person who provides agricultural chemical or agricultural seed, and has complied with subdivision (a), has a lien upon the proceeds of the crop for the reasonable or agreed charges and for the costs of enforcing the lien.
The lien established pursuant to this chapter attaches to the proceeds of the following:
The crops that existed at the time of application upon the land where the agricultural chemical was applied.
If crops are not planted, the next production crop on that land following the last date on which the agricultural chemical was applied.
The crops produced from the agricultural seed.
The amount of charges secured by the lien shall not exceed an amount equal to the reasonable or agreed charges for agricultural chemicals furnished within a 60-day period and for agricultural seeds furnished within a 45-day period.
Except as otherwise provided in this chapter, the notice of claim of lien shall remain in effect, and no new notice of claim of lien shall be required in order to maintain the lien, as long as the person who provides the agricultural chemicals and labor or agricultural seeds and labor either (1) remains unpaid for the amounts secured by the lien; or (2) continues to provide agricultural chemicals and labor or agricultural seeds and labor on a regular basis to the lien debtor. For purposes of this section, providing agricultural chemicals and labor or agricultural seeds and labor shall not be deemed to be made on a regular basis if a period of more than 45 days elapses between applications, deliveries, or preparations.
The lien created by this chapter shall be perfected and shall be effective upon the filing of a notice of claim of lien with the Secretary of State pursuant to this article.
Any person who provides agricultural chemicals or agricultural seeds may file in the manner and at the place set forth in Section 57568, the notice of claim of lien. The lien claimant may not file a notice of claim of lien upon the proceeds of crops for agricultural seeds and labor furnished by the lien claimant if an investigation of a dispute between the lien claimant and the lien debtor is pending pursuant to subdivision (g) of Section 52332. The lien claimant may not file a notice of claim of lien upon the proceeds of crops for agricultural chemicals and labor furnished by the lien claimant, if the settlement of a dispute between the lien claimant and the lien debtor is pending, or has not been resolved pursuant to Section 57564.5.
The director shall, by regulation, establish methods and procedures for the settlement of a dispute between a lien claimant supplying agricultural chemicals and labor and a lien debtor, including, but not limited to, the following:
Time requirements for submitting the dispute to the department.
Time requirements within which a notice of the dispute shall be submitted to each party.
A process for evaluating the dispute.
Each party to the dispute is equally liable for the reasonable costs incurred by the department in carrying out this section.
The notice of claim of lien shall contain all of the following information:
The name and address of the lien claimant.
The name and address of the lien debtor.
The location of the property to which the agricultural chemicals and labor or agricultural seeds and labor were provided.
A statement that the payment of the reasonable or agreed charges is more than 30 days overdue.
The amount of the reasonable or agreed charges that are overdue.
A statement, signed under penalty of perjury, that the lien claimant sent to the lien debtor the notice required pursuant to subdivision (a) of Section 57561, that more than 10 days have elapsed since the notice was received by the lien debtor, and that the lien debtor has not complied with the requirements of subdivision (a) of Section 57561.
That the lien claimant has an agricultural chemical and agricultural seed lien pursuant to Section 57561.
The notice of claim of lien shall be signed by the lien claimant or by a person authorized to sign documents of a similar kind on behalf of the claimant.
The lien claimant may be identified either as a lien claimant or as a secured party.
The form shall be signed by the lien claimant and need not be signed by the lien debtor.
In the space for the description of the collateral there shall instead be entered the information specified in subdivisions (c) to (g), inclusive, of Section 57565.
Attached to the form shall be a separately signed statement containing the information specified in subdivision (f) of Section 57565.
The notice of claim of lien shall be filed, indexed, and marked in the office of the Secretary of State in the same manner as a financing statement is filed, indexed, and marked pursuant to Section 9519 of the Commercial Code.
The lien claimant shall provide written notice of the claim of lien to the lien debtor within 10 days of the date of the filing with the office of the Secretary of State.
For the purpose of the Secretary of State’s index pursuant to Section 9519 of the Commercial Code and for the purpose of the issuance of a certificate pursuant to Section 9519 or 9528 of the Commercial Code, the Secretary of State shall identify a notice pursuant to this article as a financing statement.
ARTICLE 3. Priority of Lien [57575. - 57575.]
The lien created pursuant to this chapter shall have the priority in accordance with the time the notice of claim of lien is filed.
The lien created pursuant to this chapter shall have the same priority as a security interest perfected by the filing of a financing statement as of the date the notice of claim of lien was filed.
The lien created pursuant to this chapter shall not have priority over labor claims for wages and salaries for personal services which are provided by any employee to any lien debtor in connection with the production of agricultural products, the proceeds of which are subject to the lien.
ARTICLE 4. Information Concerning Lien [57581. - 57582.]
A member of the public may obtain a certificate identifying whether there is a lien on file and any notice of claim of lien naming a particular debtor, and if so, giving the date and time of filing of each notice, and the names and addresses of each lienholder in the certificate. The fee for the certificate is the same as the fee for a certificate issued pursuant to Section 9525 of the Commercial Code.
A member of the public may obtain a copy of any notice of an agricultural chemical or seed lien filed, including notices affecting the notices. The fee for these copies shall be the same as that prescribed in Section 9525 of the Commercial Code.
ARTICLE 5. Enforcement of Lien [57585. - 57587.]
The lien claimant shall provide written notice to secured creditors at least 30 days prior to enforcing a claim of lien. For purposes of this section, “secured creditors” means any entity named as a secured party in a financing statement filed with regard to the debtor and which covers crops subject to the lien, crops growing or grown on the land, or the next production crops to be grown on the land if the crops are not planted, where the agricultural chemical or agricultural seed was provided or applied, farm products, or accounts.
The lien claimant shall foreclose on a lien created by this chapter only in an action to recover the reasonable or agreed charges. The final judgment shall be enforced pursuant to Title 9 (commencing with Section 680.010) of the Code of Civil Procedure.
When a lien claimant receives payment for the total amounts secured by the lien and the lien claimant has not furnished agricultural chemicals or seeds for a period of 45 consecutive days, the lien claimant shall send the lien debtor a statement that he or she no longer claims a security interest under the notice of claim of lien, which shall be identified by the date, names of parties thereto, and file number. If the affected lienholder of record fails to send the termination statement within 10 days, he or she is liable to the debtor for all actual damages suffered by the debtor by reason of this failure, and if the failure is in bad faith, for a penalty of one hundred dollars ($100).
The filing officer shall mark each termination statement with the date and time of filing and shall index the statement under the name of the lien debtor and under the file number of the original lien. If the filing officer has a microfilm or other photographic record of the lien and related filings, he or she may remove and destroy the originals from the files at any time after receipt of the termination statement. If the filing officer does not have the record, he or she may remove and destroy the originals from the files at any time after one year after receipt of the termination statement.
ARTICLE 6. Assignment of Lien [57590. - 57591.]
A lien created pursuant to this chapter is assignable or transferable by the holder of the lien, with full rights of enforcement.
The lienholder shall file a statement of assignment or transfer with the office of the Secretary of State in the same manner that a statement is filed pursuant to Section 9514 of the Commercial Code.
Except to the extent specifically set forth in this chapter, the lien created by this chapter is subject to Division 9 (commencing with Section 9101) of the Commercial Code.
ARTICLE 7. Miscellaneous [57595. - 57595.]
The Secretary of State may adopt any regulations necessary to carry out his or her duties pursuant to this chapter, including prescribing necessary forms.
CHAPTER 14. Limitation on Nonconsensual Supplier Liens [57700. - 57700.]
DIVISION 21. MARKETING [58001. - 63129.]
PART 1. GENERAL PROVISIONS [58001. - 58596.5.]
CHAPTER 1. State Marketing Services [58001. - 58093.]
ARTICLE 1. Definitions and General Provisions [58001. - 58005.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Organization of producers and distributors” includes all corporations, societies, associations, and organizations of producers, producers and distributors, or distributors, cooperative or otherwise, which are formed for the purpose of facilitating the marketing of any product.
“Product” means any agricultural, aquacultural, dairy, or farm product which is produced, grown, raised, manufactured, or processed within the state.
Except as provided in Section 58005, fees, charges, and costs that are collected under this chapter shall be paid into the State Treasury to the credit of the General Fund.
All fees, charges, and costs that are received under this chapter for the collection, analysis, and dissemination of market news shall be paid into the State Treasury monthly to the credit of the Department of Food and Agriculture Fund. Funds received for these purposes, upon appropriation, shall be expended by the department for market news services. The secretary may adopt regulations implementing procedures for receiving fees, charges, and reimbursement for costs from users of market news.
ARTICLE 2. Powers of the Director [58031. - 58042.]
The director may act as adviser for producers and distributors, if requested, and assist them in economical and efficient distribution of any product at fair prices.
The director may gather and disseminate impartial information which concerns supply, demand, prevailing prices, and commercial movements, including common and cold storage of any product.
The director may promote, assist, and encourage the organization and operation of cooperative and other associations and organizations for improving the relations and services among producers, distributors, and consumers of any product, and protect and conserve the interests of the producers and consignors of products.
The director may foster and encourage cooperation between producers and distributors of any product, in the interest of the general public.
The director may foster and encourage the standardizing, grading, inspection, labeling, handling, storage, and sale of any product.
The director may act as a mediator or arbitrator, if invited by both parties, in any controversy or issue that may arise between producers and distributors of any product.
The director may certify, for the protection of owners, buyers, or creditors, if so requested, warehouse receipts for any product, verifying quantities and qualities of the product, and charge for such service, fees which are sufficient to make the service self-supporting.
The director may issue labels on request of the producer, packer, canner, or distributor, for any product for which labels have not otherwise been authorized by law, pursuant to such regulations as he deems necessary and charge for such labels such fees as in his judgment are proper.
The director may act on behalf of the consumers of any product in conserving and protecting their interests in every practicable way.
The director may improve, broaden, and extend in every practicable way, the distribution and sale of any product of this state throughout the markets of the world.
This section shall become operative January 1, 1990.
The director may promote in the interest of the producer, the distributor, and consumer, economical and efficient distribution and marketing of any product which is produced or processed within the state and to better effectuate the purposes of this article may attend necessary meetings and conferences in relation to any such product and may enter into cooperative agreements with the United States Department of Agriculture.
The director may enter into any cooperative agreement with any department or agency of the federal government, or with any other state or agency of it, in order to effectuate the purposes of this division, Division 20 (commecing with Section 54001), or of any marketing law, including any marketing order, marketing program, regulation, or rule and regulation, which is issued under it, the responsibility for the administration and enforcement of which is with the director.
ARTICLE 3. Investigations [58061. - 58062.]
The director may conduct investigations, make surveys, and assemble facts which are pertinent to marketing and to the formulation, administration, or amendment of any marketing order, agreement, or program which is authorized by any law now in effect or which may hereafter be enacted.
The director may make pertinent investigations which concern the aggregate amount of any product which is held in common or cold storage. In connection with any such investigation, the director may inspect only the pertinent books and records of common or cold storage warehouses for the purpose of determining and publishing aggregate amounts of any product which is held in storage, and may issue subpoenas for the attendance of witnesses and the production of pertinent books, papers, accounts, documents, and testimony in any such investigation.
ARTICLE 4. Collection and Dissemination of Information [58091. - 58093.]
The director shall provide for the collection, analysis, and dissemination of statistics and other information which relates to the production and marketing of farm products, including processed farm products, which are produced in this state, such as, but not limited to, crop and livestock estimating and market news services.
The director may establish such facilities and publish such bulletins and reports as are necessary and proper in keeping producers and handlers informed with regard to the supply, demand, and other economic conditions which affect the sale of any farm product which is produced in this state.
The director shall cooperate with the Secretary of Agriculture, and with the appropriate office of the State of Oregon, to establish a market news service in the Klamath Basin.
CHAPTER 2. Cooperative Agreements [58201. - 58233.]
ARTICLE 1. General Provisions [58201. - 58203.]
It is the policy of this state to gain maximum benefits in behalf of agriculture from the results of research and service work performed by local, state, and federal governments through coordination and correlation of such activities.
Since the Congress of the United States has recognized the value of marketing research, developmental, and service work through the enactment of agricultural marketing laws, including Public Law 733 (60 Stat. 966), and since Title II thereof embodies features of a nature akin to agricultural and regulatory service functions performed by the department, and inasmuch as financial cooperation in those phases of the marketing field is provided in Title II, it is hereby declared to be the purpose of this chapter to make possible a furtherance of intergovernmental cooperation in such marketing activities as will accrue advantageously to the agricultural industry of the state.
The department is the proper state agency for such intergovernmental cooperation in those regulatory and service features contemplated by Public Law 733 (60 Stat. 966) and in relation to such other federal laws as may relate to the same and comparable activities.
ARTICLE 2. Powers of the Director [58231. - 58233.]
The secretary may enter into cooperative agreements with the Secretary of Agriculture of the United States Department of Agriculture or the Administrator, Agricultural Marketing Act of 1946 (7 U.S.C. Sec. 1621 et seq.), or both, to develop projects or programs that are designed to improve, expand, and correlate the work of both agencies in any of the following:
Federal-state cooperative crop reporting.
Federal-state cooperative market news services.
Seed and crop improvement.
Agricultural products certification.
Marketing orders and programs.
Milk and milk products stabilization.
Market enforcement.
Agricultural trade.
Agricultural commodities, grades, and standards.
Prepackaging of, and special containers for, shipment of any farm product.
If a cooperative agreement related to federal-state cooperative market news services, as described in subdivision (b) of Section 58231, is not in effect in the state, the secretary may define grape-pricing districts in the state.
The director may also enter into agreements with federal administrative committees established by the Secretary of Agriculture of the United States pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), with advisory boards and program committees which are established by the director pursuant to Chapters 1 (commencing with Section 58601) and 2 (commencing with Section 59501), Part 2 of this division, with producers’ cooperative marketing associations and other producer or handler organizations to assist financially or otherwise in the development of such projects or programs and in putting the results of such projects or programs into operation within this state.
The director may receive and pay out money for the purposes which are mentioned in this article.
CHAPTER 3. Void Contracts and Restraint of Trade [58351. - 58383.]
ARTICLE 1. Void Contracts [58351. - 58353.]
Any contract which is made for the purpose of injuring competitors and destroying competition under which the seller of any agricultural product agrees to pay or allow any brokerage charge, rebate, discount, or other credit, except an allowance for variation in quality, condition, or quantity, or any other form of compensation or credit by a seller to a buyer, or to an agent, employee, subsidiary, or affiliate of a buyer that buys to sell at retail and which is not paid, given, or allowed in like circumstances to all other buyers or to the agents, employees, subsidiaries or affiliates of other buyers, whether the same is paid or allowed directly or indirectly, is hereby declared to be against public policy and void.
Advertising allotments or discounts by a seller to a buyer for bona fide advertising expenditures, however, are not included within such transactions which are against public policy and void.
It is a misdemeanor for any person to take any part in any transaction which is declared by this article to be against public policy and void whether as seller, buyer, buyer’s agent, employee, or subsidiary.
ARTICLE 2. Destruction of Foodstuffs in Restraint of Trade [58381. - 58383.]
It is unlawful for any person to destroy, in restraint of trade, any fowl, animal, vegetable, aquacultural product, or other stuff, product, or article which is customary food, or which is proper for food, for human beings, and is in fit sanitary condition to be used as such.
A person that receives any agricultural product, for sale on commission or for sale or exchange for the benefit of any other person, shall not destroy, abandon, discard as refuse, or dump, such product, without a permit in writing from the commissioner, county health officer, director, State Director of Health Services, or from some other official now or hereafter authorized by law to issue permits for the destruction of such product. Such permits, together with a detailed statement of every product which is destroyed pursuant to the permit, shall be kept on file by the person to whom they are issued.
A copy of each such permit together with a copy of each such detailed statement shall, on the day such permit is issued, be served personally by the consignee, upon the consignor of the destroyed product, or in lieu of such personal service, shall on such day be served by the consignee on the consignor by depositing it in the post office, inclosed in a sealed envelope, postage fully prepaid, addressed to the consignor of the destroyed product at the consignor’s address, if known, or if not known, then to the place where the shipment or consignment of such product originated.
CHAPTER 4. Assignment of Dues [58451. - 58454.]
If any grower or producer of any farm product within this state voluntarily executes and causes to be delivered to a dealer or processor of farm products, either as a clause in a sales contract or other instrument in writing, a notice of assignment of dues to a nonprofit agricultural commodity organization directly representing the specific product involved, by which the processor or dealer is directed to deduct a sum from the price to be paid for such product and to pay the same over to such association as dues for the grower or producer, the processor or dealer shall deduct from the price to be paid for any farm product being sold by any such grower or producer to any such processor or dealer, the amount authorized and pay it over to the organization as assignee.
No provision which is inserted in any contract that is prepared by a dealer or processor which makes an assignment of the dues described in Section 58451 ineffective is valid.
An assignment of dues may not exceed 2 percent of the total value of the product which is delivered by the grower or producer to the dealer or processor.
Payment need not be made under any assignment of dues pursuant to Section 58451 until the dealer or processor has available and under his control funds owing to the grower or producer that are sufficient in amount for making the payment of the dues involved. In the case of an annual product, such payment need not be made until the end of the product year.
CHAPTER 5. Donation of Food [58501. - 58509.]
For purposes of this chapter:
“Agricultural product” means any fowl, animal, vegetable, or other stuff, product, or article which is customary food, or which is proper for food for human beings.
“Food bank” means a surplus food collection and distribution system operated and established to assist in bringing donated agricultural products to nonprofit charitable organizations and individuals for the purpose of reducing hunger and nutritional needs.
“Nonprofit charitable organization” means any organization which was organized and is operating for charitable purposes and meets the requirements set forth in Section 214 of the Revenue and Taxation Code.
A person or gleaner engaged in the business of processing, distributing, or selling an agricultural product may donate, free of charge, a product that is in a condition that it may be used as food for human consumption to a nonprofit charitable organization within the state. Food facilities may donate food directly to end recipients for consumption. The donation of nonperishable food that is fit for human consumption, but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the California Good Samaritan Food Donation Act. The donation of perishable food that is fit for human consumption, but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the California Good Samaritan Food Donation Act if the person that distributes the food to the end recipient makes a good faith evaluation that the food to be donated is wholesome.
To assist in accomplishing the purposes of this section, the director may divert agricultural products to organizations operating pursuant to this chapter.
To assist in accomplishing the purposes of Section 58502, the board of supervisors of any county may establish, and publicize the availability of, a surplus food collection and distribution system, consisting of an inventory of storage facilities and refrigeration equipment that are available in the county for such purposes and a 24-hour information and food collection center for receiving and transmitting information as to where agricultural products are available or what organization desires or needs donated agricultural products, and for collecting, receiving, handling, storing, and distributing donated agricultural products. Any nonprofit charitable organization regularly needing agricultural products in its operations may be listed with such center for the purpose of being notified whenever such products are available.
In order to qualify as a food bank, an organization shall meet all of the following minimum standards:
It shall have access to storage facilities and refrigeration equipment for the purpose of collecting, receiving, handling, storing, and distributing donated agricultural products.
It shall be incorporated as a nonprofit tax exempt organization and be eligible as a charitable organization under paragraph (3) of subsection (c) of Section 501 of Title 26 of the United States Code or shall be affiliated with such an organization.
It shall maintain records for the proper control of inventory.
It shall demonstrate the availability of adequate liability insurance to cover the activities conducted pursuant to this chapter.
It shall show local support through funding sources, letters of endorsement, and a board of directors reflective of the community and population to be served.
To assist in accomplishing the purposes of this chapter and to maximize use of state surplus equipment, the Director of General Services may assist a food bank by locating and providing available state surplus buildings or equipment necessary for the operation of a food bank.
Nothing in this chapter restricts or limits the operation of any other nonprofit organizations which are engaged in the distribution of agricultural products to nonprofit charitable organizations.
Programs operated in accordance with this chapter shall complement, and not in any way lessen, assistance to families and individuals pursuant to the Food Stamp Act of 1977 (Chapter 51 (commencing with Section 2011) of Title 7 of the United States Code).
The board of supervisors may provide for the inspection of such products by the county health officer, upon request of the donee, prior to delivery by the donor to determine whether such products may be used as food for human beings.
Except for any injury resulting from gross negligence or willful act, no county or agency of a county established pursuant to this chapter and no person who donates any agricultural product shall be liable for any injury, including, but not limited to, injury resulting from the ingesting of such agricultural product, as a result of any act, or the omission of any act, in connection with donating any product pursuant to this chapter.
Any nonprofit charitable organization, that receives any agricultural product pursuant to this chapter, shall not sell or offer to sell any such agricultural product nor move or transfer such product out of the state, provided that any product that does not comply with the requirements of Division 17 (commencing with Section 42501) which is received by a charitable organization situated in this state may be shipped out of the state by such organization in accordance with regulations of the director to assure compliance with the purposes of this chapter.
This subdivision does not apply to agricultural products which comply with all maturity, quality, size, standard pack, container and labeling requirements of Division 17 (commencing with Section 42501).
No person and no employee of a public agency shall sell, offer for sale, use, or consume any agricultural product donated or distributed pursuant to this chapter, except the recipient of an agricultural product provided as charitable assistance by a nonprofit charitable organization who shall use or consume the agricultural product provided.
Any violation of this section is punishable by a fine not exceeding one thousand dollars ($1,000).
In operating an information and food collection center pursuant to this chapter, the board of supervisors shall provide for the screening of donees to assure that agricultural products which are distributed at public expense are not donated to organizations that are capable of purchasing them.
The Secretary of Food and Agriculture shall consult with four food bank representatives, two from the northern portion of the state, all of whom have been active members of a nationwide network of food banks for a minimum of two years immediately prior to appointment, and two from the southern portion of the state, all of whom have been active members of a nationwide network of food banks for a minimum of two years immediately prior to appointment, and two food industry representatives, one wholesaler and one manufacturer, all of whom shall be selected by the Governor and referred to as the Food Bank Advisory Committee.
Members of the committee who are not state employees shall be paid per diem for their actual expenses in attending committee meetings.
The committee shall do all of the following:
Advise the Department of Food and Agriculture in the establishment of new food banks.
Advise in the adequate and efficient distribution of surplus food commodities to all areas of the state.
CHAPTER 6. Foreign Marketing [58551. - 58583.]
ARTICLE 1. General Provisions [58551. - 58565.]
This act shall be known and may be cited as the N. Waters-Nielsen-Vuich-Berryhill Foreign Market Development Export Incentive Program for California Agriculture Act.
The Legislature finds and declares that it is the policy of this state to actively encourage and promote the sale of agricultural products of California in foreign markets and to assist farmers, processors, distributors, and exporters in meeting world market needs.
The Legislature further finds and declares, as being consistent with the Thurman Agricultural Policy Act (Chapter 6 (commencing with Section 801) of Part 1 of Division 1), both of the following:
The harvest from approximately one out of every four acres of California cropland is now sold in foreign markets, thus the state’s agricultural economy is dependent upon international trade.
It is in the public’s best interest to assist California agriculture in market development for agricultural products, and to expand world trade in these products to maximize growth in the state’s economy.
The definitions in this article apply to this chapter.
“Advisory committee” means the State Board of Food and Agriculture.
“Agricultural commodities” means the products of California farms and ranches and items processed from these products, and includes forest products, aquacultural products, and fish and fish products produced in California and livestock fed in feedlots located in California.
“Constraint” means a condition in a particular country or region which needs to be addressed in order to develop, expand, or maintain agricultural commodity exports.
“Cooperator” means a private or nonprofit agricultural marketing organization; a nonprofit trade association, whose members market agricultural commodities, which has demonstrated expertise in the promotion of agricultural commodities that will coordinate a foreign market development program for its members; a federal marketing order board for California produced agricultural commodities; or a state marketing order board or commission organized pursuant to this code operating in California which is actively engaged in the marketing of agricultural commodities and has entered into a project agreement with the department to contribute cash, goods, or services to a foreign market development program.
“Marketing” means the advertising, sale, and distribution of agricultural commodities, including private brands and trade names, in foreign markets.
“Marketing plan” means the primary annual document prepared by cooperators and approved by the director which defines activities and budgets addressing constraints and the marketing of agricultural commodities.
“Project agreement” means a contract between the department and a cooperator under which the cooperator agrees to conduct activities that both address constraints and encourage the development or maintenance of agricultural commodity export sales.
“State funds” means the funds made available by the department under a project agreement.
“Third party cooperator” means a foreign government or private organization which has entered into an agreement with a cooperator to join in the marketing of agricultural commodities.
“Cooperator contributions” means contributions of money, personnel, materials, facilities, services, or supplies, expressed in terms of United States dollar value, that are furnished by the cooperator and any third party cooperator to help carry out the terms of a project agreement. Funds, services, or personnel provided by any state or federal agency, except funds from a state marketing order board, including those funds allocated to carry out commodity transportation offset programs, agricultural commission organized pursuant to this code, or a federal marketing order board for California-produc ed commodities, cannot be counted as a contribution.
The department shall adopt regulations, including criteria to establish what constitutes cooperator contributions, necessary to effectuate this chapter. Whenever applicable, the regulations shall be consistent with similar regulations adopted by the Foreign Agriculture Service of the United States Department of Agriculture.
The department shall, as one of its functions, provide assistance to persons from foreign countries who desire to purchase agricultural products produced in this state. That assistance shall include advice on establishing business contacts that will meet the needs of the prospective purchaser.
The department shall direct a portion of any additional funding, in excess of the original appropriation for purposes of this act, to be used for all of the following purposes:
To conduct agricultural market research, including trends in California agricultural industry and trends in foreign agricultural markets. The agricultural market research shall be utilized to determine viable opportunities to export California agricultural products successfully to foreign markets.
To conduct personnel training, including the training of California foreign trade office personnel.
To perform existing duties of the department under this chapter.
ARTICLE 2. Project Agreements [58571. - 58580.]
Project agreements may be entered into between the department and cooperators in order to address constraints and encourage the marketing of agricultural commodities in foreign countries. A project agreement may be limited to activities in one country, or may include activities in several countries. Project agreements shall include, but are not limited to, all of the following:
A description of the commodity, or commodities, for which a project agreement is being requested and a statement that California export availabilities are expected to be adequate during the life of the project.
A description of the applicant organization or firm.
A justification for participation in the foreign market development program.
A statement of proposed activities, including specific information on the activities to be conducted, the countries in which they will be undertaken, who will conduct or supervise them, and the expected results.
An estimate of the level of project funds required and an indication of the availability of industry resources to match project funds and personnel needed to carry out the proposed program.
Cooperator activities shall be described and budgeted in a marketing plan which becomes part of the project agreement. The marketing plan shall be separately submitted to the director who may approve or disapprove it. The marketing plan shall be reviewed annually at which time it may be revised by the cooperator or the department, or by both.
The marketing plan shall include all of the following:
The proposed expenditure of state funds and cooperator contributions.
Information on how much funding has been received from the Foreign Agriculture Service in the last five years and if those funds have been requested for the current year.
An identification of the constraints to expanding or maintaining California exports to each market area addressed by the plan.
A description of the proposed activities and the amount of funds, both state and cooperator, to be spent to overcome or mitigate the constraints for the commodity, or commodities, and the country, or countries, covered by the plan.
A report, if available, from local attachés or the counselors regarding potential marketing activities in their countries.
A project agreement may not go into effect pursuant to this chapter without the director’s approval of both the marketing plan and the agreement itself.
The cooperator shall administer and carry out the project agreement and shall permit the director or other state agencies to oversee and periodically inspect and investigate the administration of the project agreement.
The director may only approve a project agreement that appears to effectively contribute to the creation, expansion, or maintenance of markets abroad. Primary emphasis shall be on commercial markets. The director shall give preference to project agreements that demonstrate potential for establishing long-term benefits. Special consideration may also be given for any of the following:
Cooperators who are new to the market.
New product promotion.
Cooperators who are unable to obtain federal cooperator status.
Cooperators whose project proposals involve foreign markets not currently authorized pursuant to regulations adopted by the Foreign Agricultural Service.
Approvals and priorities shall be based on the following criteria:
Potential for creating, maintaining, or increasing consumption and exports of California agricultural commodities to other countries.
Long-range contribution to California agricultural exports.
Ability of the cooperator to provide a competent staff and other resources to ensure adequate development, supervision, and execution of project activities.
Willingness and ability of private organizations to back up promotional activities with aggressive selling and adequate supplies of commodities of the quality desired by foreign buyers.
Competition in the market.
Cultural, political, and economic obstacles which restrict imports of California agricultural commodities into the markets.
An assessment of the project costs compared to the benefits of expanding California agricultural exports.
Project agreements may promote either a single commodity or a group of related commodities. Activities shall be aimed at increasing both consumer and commercial uses for agricultural commodities. Activities carried out by cooperators fall under the following three categories:
Technical assistance, which includes activities to address technical problems related to trade impediments and to the sale, movement, processing, marketing, or utilization of agricultural commodities.
Market development activities, which include activities involving foreign traders, importers, wholesalers, retailers, and foreign government officials who import, distribute, and market agricultural commodities.
Consumer promotion activities, which include activities to influence consumers by changing attitudes toward, or making them aware of the advantages of utilizing, California agricultural products.
State funds may be used to pay costs which are essential to, and clearly identifiable with, the carrying out of the activities specified in the marketing plan approved by the director.
The director shall adopt regulations similar to those developed by the Foreign Agriculture Service of the United States Department of Agriculture to proscribe the unauthorized use of state funds pursuant to this chapter.
Not more than five hundred thousand dollars ($500,000) shall be annually appropriated for this program’s state administrative costs, as specified in the annual Budget Act. The funds appropriated for administrative costs pursuant to this subdivision shall be derived from the redistribution of the total amount of funds that are appropriated in the annual Budget Act by the Legislature to carry out this chapter.
Not more than 15 percent of the funds annually appropriated for this program shall be used for any one project agreement in any one year unless the director approves a higher level upon concurrence of a majority vote of the advisory committee authorized pursuant to Section 58576.
Cooperators shall provide an annual contribution which is equal to or greater than the amount of state funds utilized for each project agreement.
Activities undertaken pursuant to this chapter shall be supplemental to, and not a substitute for, any market development activities undertaken by the federal government.
The director, the Director of General Services, and the advisory committee shall take necessary precautions to assure the confidentiality of the information that is contained in proposals for project agreements, market development plans, progress reports, documents in support of claims for funding under a project agreement, and other pertinent information submitted by individual marketing organizations.
This information is exempt from the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
Notwithstanding Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code, the advisory committee may hold a closed meeting if an applicant requests that the submitted information not be discussed in an open meeting and the committee determines that it is in the best interest of the program to conduct a closed meeting for that purpose.
All project agreements entered into pursuant to this chapter, unless exempted in accordance with Section 10351 of the Public Contract Code, shall be submitted to the Director of General Services for approval. The director shall have 15 working days from the date of submittal to review and approve or disapprove.
Nothing in this chapter precludes the director from separately funding project proposals coming from private or nonprofit agricultural marketing organizations, state marketing order boards, or commissions which are actively engaged in the marketing of the same commodities.
ARTICLE 3. Funding [58582. - 58583.]
The California Agricultural Export Promotion Account is hereby created in the Department of Food and Agriculture Fund. Notwithstanding Section 13340 of the Government Code, the money in the account is continuously appropriated to the secretary to support export promotional and public relations activities conducted generally and pursuant to this chapter.
The account shall consist exclusively of funds received for the purpose of subdivision (a) from private industry sources, marketing order advisory boards established pursuant to Chapter 1 (commencing with Section 58601) of Part 2, and agricultural councils and agricultural commissions established pursuant to Division 22 (commencing with Section 64001).
Funds expended from the account shall be used exclusively for activities that directly benefit the industry sources from which the funds are derived.
Consistent with subdivision (c), funds expended from the account may be used for representational allowance expenditures for the purpose of providing proper representation of California to foreign government officials and federal officials of the United States, which shall include both of the following:
Business-related meals that include the participation of foreign government officials or federal officials of the United States and the California agricultural industry, not to exceed 300 percent of established per diem rates.
Representational gifts, not to exceed one hundred dollars ($100) per item.
The secretary may enter into goods and services contracts using funds from the California Agricultural Export Promotion Account for the activities described in subdivision (c) of Section 58582 and using federal funds authorized for international activities, as necessary. Notwithstanding any other law, those goods and services contracts shall be exempt from any contracting requirements applicable only to state contracts, including, but not limited to, Section 10295 of the Public Contract Code.
ARTICLE 4. Reporting [ - ]
CHAPTER 7. Institutional Purchasers of Agricultural Products [58595. - 58595.]
A California state-owned or state-run institution that purchases agricultural food products shall implement necessary practices to achieve a goal of ensuring that at least 60 percent of the agricultural food products that it purchases in a calendar year are grown or produced in the state by December 31, 2025.
Subdivision (a) does not apply to segments of public postsecondary education or local educational agencies.
A local educational agency that solicits bids for the purchase of an agricultural food product shall accept a bid or price for that agricultural food product when it is grown in California before accepting a bid or price for a domestic agricultural food product that is grown outside the state, when both of the following are met:
The bid or price of the California-grown agricultural food product does not exceed the lowest bid or price for a domestic agricultural food product produced outside the state.
The quality of the California-grown agricultural food product is comparable to that domestic agricultural food product produced outside the state.
This section shall neither limit nor expand California’s obligations under the Agreement on Government Procurement of the World Trade Organization.
For purposes of this section, the following definitions apply:
“Agricultural food product” means any fresh or processed food product including, but not limited to, fruits, nuts, vegetables, herbs, mushrooms, dairy, shell eggs, honey, pollen, grains, livestock meats, poultry meats, rabbit meats, and fish, including shellfish.
“Local educational agency” has the same meaning as defined in Section 49557.5 of the Education Code.
“Segment of public postsecondary education” means a segment of public higher education described in Section 66010 of the Education Code.
CHAPTER 8. The Buy American Food Act [58596.1. - 58596.5.]
This chapter shall be known, and may be cited, as the Buy American Food Act.
For purposes of this chapter, the following definitions apply:
“Agricultural food product” means a fresh or processed product, including fruits, nuts, vegetables, herbs, mushrooms, dairy, shell eggs, honey, grains, livestock meats, poultry meats, and fish, including shellfish.
“Domestic” means inside of the United States.
“Local educational agency” has the same meaning as defined in Section 49557.5 of the Education Code.
“Nondomestic” means outside of the United States.
“Public institution” means any state, city, or county agency, including a public postsecondary educational institution and a local educational agency as defined by this section.
“Public postsecondary educational institution” means the California Community Colleges and the California State University, but not the University of California.
A public institution that receives federal meal reimbursement funding to provide prepared meals and that solicits bids for the purchase of an agricultural food product shall include in their solicitation for bids and contracts that only the purchase of agricultural food products grown, packed, or processed domestically is authorized, unless any of the following applies:
The bid or price of the nondomestic agricultural food product is more than 25 percent lower than the bid or price of the domestic agricultural food product.
The quality of the domestic agricultural food product is inferior to the quality of the agricultural food product grown, packed, or produced nondomestically.
The agricultural food product is not produced or manufactured domestically in sufficient and reasonably available quantities of a satisfactory quality to meet the needs of the public institution.
Subdivision (a) shall not apply to any of the following:
The Child and Adult Care Food Program.
The Summer Food Service Program.
The Department of Corrections and Rehabilitation.
Subdivision (a) shall not apply to agricultural food products purchased by or provided to a public institution through the United States Department of Agriculture.
If a vendor substitutes an agricultural food product without notice or because a product is not available, the public institution shall not be in violation of this section.
This section shall neither limit nor expand California’s obligations under the Agreement on Government Procurement of the World Trade Organization.
Local educational agencies with an annual federal meal reimbursement of less than one million dollars ($1,000,000) are exempt from this section.
This section shall become operative on January 1, 2024.
If an existing contract is in place between a public institution and a food supplier on January 1, 2024, this section shall apply to that public institution upon the next successive contract.
To monitor price gouging, any local educational agency participating in a federal school lunch or school meal program subject to subdivision (a) of Section 58596.3 may report to the State Department of Education any increases in the prices of agricultural food products that exceeds 25 percent of the previous year’s prices and is encouraged to retain documentation to support the complaint. Documentation may include, but is not limited to, an invoice, receipt, or bill of sale.
The State Department of Education shall annually post on its internet website the aggregate information on reports received from local educational agencies pursuant to subdivision (a) on price increases.
The State Department of Education shall add a question to the administrative review required pursuant to Section 210.18 of Title 7 of the Code of Federal Regulations (7 C.F.R. 210.18) regarding any increases of the price of agricultural food products and the annual costs associated with implementing Section 58596.3.
This chapter shall remain in effect only until January 1, 2029, and as of that date is repealed.
PART 2. GENERAL MARKETING LAWS [58601. - 60016.]
CHAPTER 1. California Marketing Act of 1937 [58601. - 59293.]
ARTICLE 1. Short Title and Definitions [58601. - 58624.]
This chapter shall be known as “The California Marketing Act of 1937.”
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Administrative rules and regulations” means rules and regulations that are applicable to a particular marketing order or agreement which are issued and made effective by the director pursuant to Article 18 (commencing with Section 59161) of this chapter.
“Advertising and sales promotion” means, in addition to its ordinarily accepted meaning, trade promotion and activities for the prevention, modification, or removal of trade barriers which restrict the free flow of any commodity to market and may include the presentation of facts to, and negotiations with, state, federal, or foreign governmental agencies on matters which affect the marketing of any commodity that is included in any marketing order or marketing agreement which is made effective pursuant to the provisions of this chapter.
“Advertising and sales promotion” also means, in addition to its ordinary accepted meaning, activities for the modification or removal of trade barriers that restrict the free flow of a commodity to market, including negotiation with federal and foreign governments, and the allowance of reimbursement payments to offset commodity transportation or other costs to selected domestic and foreign markets.
Domestic f.o.b. selling price shall not be used as a factor in determining qualifications for reimbursement payments unless the director determines that there is no feasible alternative for establishing these qualifications.
“Commodity,” except as otherwise provided in Section 58747, means any agricultural, aquacultural, horticultural (including floricultural), vermicultural, viticultural (including wine) or vegetable product which is produced in this state, any fish or seafood, or any class, variety, or utilization of that product, either in its natural state or as processed by a processor or as processed by a producer for the purpose of marketing that product. It includes bees, honey, and milk as defined in Section 32511. It does not, however, include timber or any timber product.
The Legislature hereby declares that the addition of the phrase “(including wine)” in this section is made for the purpose of clarification only and shall not be construed or interpreted as an indication that wine is not a commodity as originally defined by Chapter 404, Statutes of 1937, and as heretofore amended. The Legislature further declares that at the time of the original enactment of the definition of the term “commodity” and at all times since, it intended that wine be, and wine was, included within the definition of the term. Every marketing order issued, signed, or declared effective prior to July 15, 1941, and every act of the director prior to such date which was performed pursuant to the provisions of this chapter and consistent with the declarations which are contained in this paragraph are hereby confirmed, ratified, and validated.
“Directly affecting” or “directly affected” is synonymous with “directly regulating” and “directly regulated,” and means the direct application of regulations upon any person, including the requirement to pay assessments which are levied pursuant to any marketing order or marketing agreement which is issued by the director pursuant to this chapter. A requirement upon handlers to deduct and remit to the director assessments that are owed by producers under a marketing order or marketing agreement which is applicable upon producers only, does not, however, directly regulate such handlers.
“Distributing” means engaging in the business of a distributor as defined in Section 58608.
“Distributor” means any person that engages in the operation of selling, marketing, or distributing, in intrastate commerce any commodity which he has produced or purchased or acquired from a producer or which he is marketing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise. It does not, however, include a retailer, except a retailer that purchases or acquires from, or handles on behalf of any producer, any commodity which was not previously subjected to regulation by the marketing order which covers such commodity.
“Educational program,” unless otherwise defined in this chapter, means a program established by the director pursuant to this chapter that provides for the planning and implementation of activities designed to inform the general public of the processes of producing agricultural commodities and designed to foster cooperation and understanding between urban and rural sectors of society.
“Fish” means every form of fish, either salt water or fresh water fish, which is used for human consumption, except fish for canning, retorting, reduction, or use in an extraction process.
“General rules and regulations” means rules and regulations, which are applicable to all marketing orders and marketing agreements and are issued and made effective by the director without prior notice and public hearing, to provide uniform methods and procedures to facilitate the administration and enforcement of all such marketing orders and marketing agreements. Such uniform methods and procedures may include but shall not be limited to any of the following:
Methods and procedures which pertain to the receiving, depositing, and expenditure of moneys which are received from assessments collected pursuant to this chapter.
The preparation, handling, and payment of claim schedules for the payment of bills, salaries, and other obligations.
Establishing the maximum rates to be allowed for travel expenses of board members and board employees.
The preparation, verification, and filing of evidence which relates to violations of marketing orders, agreements, and marketing regulations which are authorized pursuant to this chapter and other fiscal and administrative activities which the director finds are necessary to obtain reasonable uniformity, efficiency, and economy in the administration and enforcement of such marketing orders and agreements of this chapter.
“Handler,” except with respect to fish and seafood, means any person that is engaged within this state as a distributor in the business of distributing any commodity in intrastate commerce, or any person that is engaged as a processor in the business of processing any commodity. With respect to fish and seafood, it means any person that is engaged in the business of the distribution or sale of fish or seafood to restaurants, or to retailers for resale to consumers, or to any other persons or concerns for resale or for sale direct to consumers.
“Handling” means engaging in the business of a handler as defined in Section 58611.
“Major amendments” mean amendments to any marketing order or agreement which are made pursuant to Article 13 (commencing with Section 59021) of this chapter. It does not include a seasonal marketing regulation.
“Marketed by producers” means producer marketing, as defined by Section 58621.
“Marketing order” means an order which is issued by the director, pursuant to this chapter, which prescribes rules and regulations that govern the processing, distributing, or handling in any manner of any commodity within this state during any specified period.
“Minor amendments” are amendments to any marketing order or agreement which are made effective by the director upon recommendation of the advisory board which is concerned, as specified in Article 14 (commencing with Section 59051) of this chapter, with or without prior notice and public hearing, which change or modify the language or the provisions of any such marketing order or agreement for the purpose of clarification, or the removal of conflicts of meaning without involving changes or modifications of language, or provisions which are classed as major amendments.
“Person” means an individual, firm, corporation, association, or any other business unit, and, for the purposes of this chapter, includes any state agency which engages in any of the commercial activities which are regulated pursuant to the provisions of this chapter.
“Processing” means engaging in the business of a processor as defined in Section 58619.
“Processor” means any person that is engaged within this state in the operation of receiving, grading, packing, canning, fermenting, distilling, extracting, preserving, grinding, crushing, or changing the form of any commodity for the purpose of preparing it for market or of marketing such commodity, or any other activities which are performed for the purpose of preparing it for market or of marketing such commodity. It does not, however, include a person that is engaged in manufacturing from any commodity, so changed in form, another and different product.
“Producer” means any person that is engaged within this state in the business of producing, or causing to be produced for market, any commodity.
“Producer marketing” means any or all operations which are performed by any producer in preparing for market. It includes selling, delivering, or disposing of for commercial purposes, to any handler any commodity which the producer has produced.
“Retailer” means any person that purchases or acquires any commodity for resale at retail to the general public for consumption off the premises. Such person is also included within the definition of distributor, to the extent that such person engages in the business of a distributor as defined in Section 58607.
“Seafood” means shellfish and every other form of animal or plant life which is taken from fresh or salt water and used for human consumption, except seafood which is used for canning, retorting, reduction, or used in an extraction process.
“Seasonal marketing regulations” mean marketing regulations that are applicable to a particular marketing order or agreement which are made effective by the director pursuant to Article 19 (commencing with Section 59171) of this chapter.
ARTICLE 2. General Provisions [58651. - 58661.]
It is hereby declared that the marketing of commodities in this state in excess of reasonable and normal market demands therefor; disorderly marketing of such commodities; improper preparation for market and lack of uniform grading and classification of commodities; unfair methods of competition in the marketing of commodities; and the inability of individual producers to maintain present markets or to develop new or larger markets for California-grown commodities, results in an unreasonable and unnecessary economic waste of the agricultural wealth of this state.
Such conditions and the accompanying waste jeopardize the future continued production of adequate supplies of food, fiber, and other products of the farm and of the soil for the people of this and other states, and prevent producers from obtaining a fair return from their labor, their farms, and the commodities which they produce.
As a consequence, the purchasing power of such producers has been in the past, and may continue to be in the future, unless such conditions are remedied, low in relation to that of persons engaged in other gainful occupations within the state. Producers are thereby prevented from maintaining a proper standard of living and from contributing their fair share to the support of the necessary governmental and educational functions, thus tending to increase unfairly the tax burdens of other citizens of this state.
These conditions vitally concern the health, peace, safety, and general welfare of the people of this state. It is hereby declared to be the policy of this state to aid producers in preventing economic waste in the marketing of their commodities, to develop more efficient and equitable methods in the marketing of commodities and to aid producers in restoring and maintaining their purchasing power at a more adequate, equitable and reasonable level.
The marketing of commodities within this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
The purposes of this chapter are to do the following:
Enable producers of this state, with the aid of the state, to correlate more effectively the marketing of their commodities with market demands for those commodities.
Establish orderly marketing of commodities.
Provide for uniform grading and proper preparation of commodities for market.
Provide methods and means for the maintenance of present markets, or for the development of new or larger markets, for commodities that are grown within this state or for the prevention, modification, or elimination of trade barriers that obstruct the free flow of those commodities to market.
Eliminate or reduce economic waste in the marketing of commodities.
Restore and maintain adequate purchasing power for the producers of this state.
Inform the general public of the processes of producing agricultural commodities.
Foster cooperation and understanding between urban and rural sectors of society.
In any civil or criminal action or proceeding for violation of any of the following, proof that the act which is complained of was done in compliance with the provisions of this chapter or a marketing order which is issued pursuant to, and in furtherance of the purposes and provisions of this chapter, is a complete defense to such action or proceeding:
The Cartwright Act, Chapter 2 (commencing with Section 16700), Part 2, Division 7 of the Business and Professions Code.
The Unfair Practices Act, Chapter 4 (commencing with Section 17000), Part 2, Division 7 of the Business and Professions Code.
The Fair Trade Act, Chapter 3 (commencing with Section 16900), Part 2, Division 7 of the Business and Professions Code.
Any rule of statutory or common law against monopolies or combinations in restraint of trade.
The provisions of this chapter regarding the marketing of commodities are applicable to fish and seafood and persons that handle, process, or distribute fish and seafood.
Any marketing order or agreement relating to fish and seafood shall affect handlers only. It may include only those provisions which are authorized by Sections 58889 and 58892, and any other provisions of this chapter necessary to carry out the purposes of Sections 58889 and 58892. Such provisions shall apply to all fish and seafood whether or not they are a product of this state.
If any section, sentence, clause, or part of this chapter is for any reason held to be unconstitutional, such decision shall not affect the remaining portions of this chapter. The Legislature hereby declares that it would have passed this chapter and each section, sentence, clause, and part of this chapter despite the fact that one or more sections, sentences, clauses, or parts of this chapter is declared unconstitutional.
The suspension, amendment, or termination of any marketing order or marketing agreement does not suspend or terminate any cause of action which has accrued under it, but such cause of action shall survive and exist the same as if such marketing order or agreement had not been suspended, amended, or terminated.
It is hereby declared, as a matter of legislative determination, that the amendments of the statutory predecessor of Sections 58651 to 58653, inclusive, (former Section 1300.10) which were made at the 1959 General Session are enacted in the exercise of the power of this state for the purpose of protecting and furthering the public health and welfare.
The term volume, or quantity, as used in this chapter, except Article 9 (commencing with Section 58881), may be in terms of gross dollar value if the director finds that such volume or quantity cannot be readily ascertained otherwise, or that gross dollar value is a more equitable measure of the commodity involved.
ARTICLE 3. Exceptions [58681. - 58682.]
This chapter does not apply to any order, rule, or regulation which is issued, or is issuable, by the Public Utilities Commission or the Interstate Commerce Commission with respect to the operation of common carriers.
This chapter is not applicable to any retailer of any commodity except to the extent that such retailer also engages in the production, processing or distribution of any commodity.
ARTICLE 4. Administration [58711. - 58714.]
The director shall administer and enforce this chapter and may exercise any or all of the administrative powers which are conferred by Sections 11180 to 11191, inclusive, of the Government Code upon the head of a department of the state.
In order to effectuate the declared purposes of this chapter, the director may issue, administer, and enforce the provisions of any marketing order issued pursuant to this chapter which regulates producer marketing or the handling of any commodity within this state.
The director may do all of the following:
Confer and cooperate with the legally constituted authorities of other states and of the United States, for the purpose of obtaining uniformity in the administration of federal and state marketing regulations, licenses, or orders.
Conduct joint hearings and issue joint or concurrent marketing orders for the purposes and within the standards which are set forth in this chapter.
Exercise any administrative authority which is prescribed by this chapter to effect such uniformity of administration and regulation.
The director may purchase general liability insurance for all marketing orders subject to the provisions of this chapter in an amount he or she determines as necessary. The cost of the insurance shall be paid by the affected marketing orders on a pro rata basis. The insurance policy shall name the director, in his or her official capacity, and all persons, collectively, that are subject to the marketing order as insured parties for claims made against the marketing order in its advisory capacity to the director or against the director regarding the activities of a marketing order. The director, after consultation with the Attorney General, may refer claims to the insurance carrier for appropriate action. In the alternative, the director may require that claims be handled in the manner otherwise specified in this chapter.
ARTICLE 5. Marketing Orders and Agreements [58741. - 58750.]
Subject to the provisions, restrictions, and limitations which are imposed in this chapter, the director may issue marketing orders which regulate producer marketing, the processing, distributing, or handling in any manner of any commodity by any and all persons that are engaged in such producer marketing, processing, distributing, or handling of such commodity within this state.
Subject to Section 58993.1, the director may establish an educational program, as defined in Section 58608.1, directly affecting producers of all commodities produced in this state. If established, the educational program shall be created with all the powers, rights, and duties set forth in this chapter, except that it shall not be subject to Section 58749 or 58993.
The director may also, subject to the restriction and limitations which are contained in Article 7 (commencing with Section 58811) of this chapter, issue marketing orders which regulate the handling, processing, preparation for marketing, or marketing of any or all portions of any commodity which is produced in this state for which marketing regulatory powers are not being exercised by the federal government pursuant to the Marketing Agreement Act of 1937 (50 Stat. 249).
If the director finds that it tends to effectuate the declared purposes of this chapter within the standards which are prescribed in this chapter, the director may issue a marketing order, applicable to the marketing, within this state, of any commodity, which contains like terms, provisions, methods, and procedures as any license or order that regulates the marketing of such commodity in interstate or foreign commerce which is issued by the Secretary of Agriculture of the United States pursuant to the provisions of any law or laws of the United States.
In selecting the members of any board or other advisory agency under such marketing order, the director shall, insofar as practicable, utilize the same persons as those serving in a similar capacity under such federal license or order, so as to avoid duplicating or conflicting personnel.
Any board, agency, or committee so appointed by the director shall be responsible to the director for the performance of such of their duties as relate to the administration of any such marketing order which is issued by the director pursuant to this section.
Any marketing order which is issued by the director pursuant to this chapter may be limited in its application by prescribing the marketing area or portion of the state in which it shall be effective. A marketing order shall not, however, be issued by the director unless it embraces all persons of a like class that are engaged in a specific and distinctive agricultural industry or trade within this state.
In order to effectuate the declared policy of this chapter, the director may also, after due notice and opportunity for hearing, enter into marketing agreements with processors, distributors, producers, and others that are engaged in the handling of any commodity, which regulate the preparation for market and handling of such commodity. Such marketing agreements are binding upon the signatories to the agreements exclusively.
The purposes and provisions of the chapter which relate to marketing orders are applicable to marketing agreements except as follows:
Section 58779, which requires the preparation of an official list of the names and addresses of all producers and the volume of the commodity which was produced or marketed by all the producers in the preceding marketing season and a list of the names and addresses of all handlers and the volume of the commodity which was handled by all the handlers, during the preceding marketing season, is not applicable to marketing agreements.
Sections 58991 to 58998, inclusive, and Sections 59082 to 59086, inclusive, are not applicable to marketing agreements. Prior to the issuance of any marketing agreement, or amendment to it, the director shall, however, find, in addition to the findings which are set forth in Section 58813, that the marketing agreement, or any amendment to it, has been assented to by a sufficient number of signatories that handle a sufficient volume of the commodity which is affected to accomplish the objectives of the agreement or amendment and provide sufficient moneys from assessments levied to defray the necessary expenses of formulation, issuance, administration, and enforcement.
Section 59233 is not applicable to marketing agreements.
Notwithstanding the provisions of Section 58605, the director may issue and make effective marketing orders or marketing agreements that affect handlers only which include only the provisions which are authorized in Sections 58889, 58890, 58892, 58893, and 58894, or any of such provisions, but no others, as may be applicable to the commodity that is regulated which is handled within this state, without regard to whether or not such commodity is produced within this state.
If producers or handlers of any commodity which is regulated by a marketing order or marketing agreement that is issued by the director pursuant to the provisions of this chapter are required to comply with minimum quality, condition, size, or maturity regulations, no person may, except as otherwise provided in such order or agreement, process, distribute, or otherwise handle any of such commodity from any source, whether produced within or without this state, which commodity does not meet such minimum requirements applicable upon producers or handlers of such commodity in this state. Such regulations do not, however, apply to any commodity which has been produced outside of this state and is in transit on the effective date of the regulations.
The director may issue and make effective a marketing order or marketing agreement which applies to two or more commodities. The producers or handlers of each commodity encompassed by such marketing order or agreement shall have all rights and privileges contained in this chapter as though such producers or handlers were directly affected by a marketing order or agreement regulating only a single commodity. If the producers or handlers of one commodity who are directly affected by a marketing order or agreement which applies to two or more commodities act to enjoin, amend, suspend or terminate the provisions thereof to such commodity, the order or agreement shall not be enjoined, amended, suspended or terminated with respect to any other commodity regulated by such order or agreement unless the director finds such injunction, amendment, suspension, or termination respecting one commodity makes continuance of the order or agreement no longer feasible or it fails to attain the objectives of this chapter. Unless the director makes findings to the contrary, a marketing order or agreement applicable to more than one commodity is deemed to be severable with respect to each commodity encompassed by it and also severable as to each sentence, clause, or part as it applies to each commodity. There shall be a clear and concise definition or identification of each commodity regulated by such multiple commodity marketing order or agreement.
There is within the Department of Food and Agriculture a public and private collaboration known as the “Buy California Program.” The purposes of the program are to encourage consumer nutritional and food awareness and to foster purchases of high-quality California agricultural products.
Pursuant to Section 58749, and in accordance with the provisions of this chapter, the secretary may issue and make effective a marketing agreement and be advised by those elements of the production agriculture and food processing industry willing to participate in the program via co-funding or in-kind contributions in a manner defined under the agreement.
The department shall report to the Legislature on January 1, 2002, and each successive January 1 while this section is operative, regarding its expenditures, progress, and ongoing priorities with this program.
The Buy California Account is created in the Food and Agriculture Fund and, notwithstanding Section 13340 of the Government Code, is continuously appropriated for purposes of this section.
ARTICLE 6. Notice, Reports, and Hearings [58771. - 58788.]
If the director has reason to believe that the issuance of a marketing order, or amendments to an existing marketing order, will tend to effectuate the declared policy of this chapter with respect to any commodity, he shall, either upon his own motion or upon application of any producer or handler of such commodity, or any organization of such persons, give notice of not less than 30 days for a public hearing upon a proposed marketing order or such amendments to such existing marketing order. In an emergency situation requiring urgent action, the director may, upon citing the nature of the emergency in the notice, give less than 30 days’ notice.
The director shall also mail a copy of such notice of hearing and a copy of such proposed marketing order, or proposed amendments, to every producer or handler of such commodity whose name and address appears upon lists of such persons, on file in the department that may be directly affected by the provisions of such proposed marketing order or such proposed amendments.
The notice of hearing shall set forth all of the following:
The date and place of the hearing.
The commodity and the area which are covered by the proposed marketing order or the proposed amendments.
A statement that the director will receive, at the hearing, testimony and evidence as to other necessary and relevant matters which are set forth in Article 7 (commencing with Section 58811).
To provide the director with accurate and reliable information, if that information is not then on file in the department, regarding the persons that may be directly affected by the provisions of any proposed marketing order for any commodity, the director shall, if he or she has reason to believe that the issuance of a marketing order will tend to effectuate the declared policy of this chapter, or upon receipt of a written application for a hearing pursuant to Section 58771, notify all handlers of the commodity to file with the director, within 30 days from the last date of the notice, a report, properly certified, which shows all of the following:
The correct name and address of such handler.
The quantities of the commodity that are affected by the proposed marketing order which were handled by the handler in the marketing season next preceding the filing of the report or the current marketing season if the harvest and delivery of the commodity to handlers is complete.
The correct name and address of every producer of the commodity, that may be directly affected by the proposed marketing order, from whom the handler received the commodity in the marketing season next preceding the filing of the report or the current marketing season if the harvest and delivery of the commodity to handlers is complete.
The director may also require all handlers to report quantities of the commodity which were received by the handler from each producer in the marketing season next preceding the filing of the report or the current marketing season if the harvest and delivery of the commodity to handlers is complete.
The director shall mail a copy of such notice to file such report to every handler of such commodity whose name and address appears upon the lists on file in the department, of handlers that may be directly affected by the provisions of such proposed marketing order.
Each handler of such commodity that may be directly affected by the provisions of such proposed marketing order shall file such verified report with the director within the time which is specified in Section 58775. Failure or refusal of any handler to file such report within the time which is specified does not invalidate any proceeding which is taken or marketing order which is issued pursuant to this chapter. The director shall proceed upon the basis of such information and reports as may otherwise be available.
From the reports which are filed and the information which is received or available to the director, including any proper corrections, the director shall prepare a list of the names and addresses of the producers and the volume of such commodity which was produced or marketed by all such producers and a list of the names and addresses of such handlers and the volume of such commodity which was handled by all such handlers, that are directly affected by the provisions of such proposed marketing order, or amendments to it, in the preceding marketing season. Such lists shall constitute complete and conclusive lists for use in any finding made by the director pursuant to the provisions of Article 12 (commencing with Section 58991) of this chapter and such findings are conclusive.
In the preparation of the list of producers or handlers to be used in the formulation or amendment of any marketing order or marketing agreement, the director may omit from such list the name of any person that makes only casual sales of the product which is involved, or whose sales or marketings of such product are incidental to urban home ownership, or the result of activity other than a commercial farm or business venture. Any person that is excluded from such lists is not subject to the provisions, including the payment of any assessments, which are applicable upon producers, or handlers, as prescribed in any such marketing order or marketing agreement.
The information which is contained in the individual reports of handlers which are filed with the director pursuant to this article shall not be made public by the director in such form but the information which is contained in such reports may be prepared in combined form for use by the director, his agents, or other interested persons, in the formulation, administration, and enforcement of a marketing order, or may be made available pursuant to court order. Such information shall not be made available to anyone for private purposes.
The hearing on a proposed marketing order or proposed amendments shall be public and all testimony shall be received under oath. A full and complete record of all proceedings at such hearing shall be made and maintained on file in the office of the director.
At the hearing, the director shall receive, in addition to other necessary or relevant matters, evidence upon the matters which are set forth in Article 7 (commencing with Section 58811).
At any public hearing which is held in connection with the formulation or amendment of a marketing order or marketing agreement, the director shall present testimony with respect to the procedure used to develop the official producer or handler list, as the case may be.
At each public hearing upon a marketing order or a major amendment to it, the director shall receive evidence relative to the period of time which may be necessarily required for the filing, checking, and tabulating of written assents which are prescribed in Article 12 (commencing with Section 58991) of this chapter. He shall also, at the conclusion of each such hearing, make a finding, based upon the evidence, with respect to the period of time which may be reasonably and necessarily required for such filing, checking, and tabulating. On the basis of such finding, the director shall fix and limit the period during which such assents may be received by him and shall be the period at the time of mailing of assent forms to producers and handlers that are affected. If, however, the director finds that an extension of such period is reasonably warranted, he may extend such period for receiving assents.
At a public hearing which is held to consider a proposed marketing order or major amendments to an existing marketing order, the director shall also receive evidence from which the director can determine whether the assent, approval, or favor of the producers, handlers, or processors affected shall be determined by written assents or by referendum as prescribed in Article 12 (commencing with Section 58991).
Upon the conclusion of the hearing, the director shall make a finding which is based upon the evidence received, whether assent, approval, or favor shall be determined by written assents or by referendum.
If the director finds that a referendum shall be had, the director shall direct that a referendum be held in accordance with Sections 58991 to 58998, inclusive. If a referendum is conducted, the director is not required, with respect to the assent, approval, or favor, to make a finding pursuant to Section 58785 concerning, or to fix and limit, the period during which assents may be received by the director.
ARTICLE 7. Findings [58811. - 58814.]
After the notice and hearing which are required by Article 6 (commencing with Section 58771) of this chapter, and before issuing a marketing order or amendments to it for the written assent of producers or handlers which contain provisions for correlating the supply of the commodity which is affected with market demands for it by means of restrictions upon the total quantity of such commodity, or restrictions upon the total quantity of any grade, size, quality, or condition of it, which restrictions have the effect of limiting the total quantity of such commodity which may be marketed during any marketing season, if the restricted portion of such commodity might otherwise be marketed by producers in compliance with other laws of this state or of the United States or in compliance with established commercial practice during such marketing season, the director shall make all of the following findings with respect to such marketing order or amendments to it:
Such provisions are necessary in order to effect a reasonable correlation of the supply of the commodity which is affected with market demands for the commodity and that such marketing order or amendments to it will tend to reestablish or maintain such level of prices for such commodity as will provide a purchasing power for such commodity which is adequate to maintain in the business of producing such commodity such number of producers as is required to provide such supply of the quantities and qualities of such commodity as is necessary to fulfill the normal requirements of consumers of the commodity.
Such marketing order or amendments to it will tend to approach such equality of purchasing power at as rapid a rate as is feasible in view of the market demand for such commodity.
Such marketing order or amendments to it are in conformity with the provisions of this chapter and within the applicable limitations and restrictions which are set forth in this chapter and will tend to effectuate the declared purposes and policies of this chapter.
Such marketing order or amendments to it will protect the interests of consumers of such commodity, by exercising the powers of this chapter only to such extent as is necessary to establish the equality of purchasing power which is described in subdivision (a) of this section.
In making the findings with respect to any of the objectives which are set forth in Section 58811, the director shall, if any or all of the following economic factors are relevant, take into consideration any and all facts which are available to him with respect to all of the following:
The quantity of such commodity which is available for distribution.
The quantity of such commodity which is normally required by consumers.
The cost of producing such commodity as determined by available statistics and surveys.
The purchasing power of consumers as indicated by reports and indices.
The level of prices of other commodities which compete with, or are utilized as substitutes for, such commodity.
The level of prices of other commodities, services, and articles which farmers commonly buy.
If the marketing order or amendments to it contain provisions only for the purpose of regulating the flow of the commodity, or any grade, size, or condition of the commodity, to market without directly restricting the total quantity which may be marketed during the marketing season, or if the marketing order or amendments to it contain provisions only for the establishment of grade, size, quality, or condition specifications, or for uniform grading and inspection, or the elimination of unfair trade practices, or provisions for advertising or sales promotion, or for research, the director may issue such marketing order or amendments to it if he makes all of the following findings:
That such marketing order or amendments to it are reasonably calculated to attain the objectives which are sought in such marketing order.
That such marketing order or amendments to it are in conformity with the provisions of this chapter and within the applicable limitations and restrictions which are set forth in this chapter and will tend to effectuate the declared purposes and policies of this chapter.
That the interests of consumers of such commodity are protected in that the powers of this chapter are being exercised only to the extent which is necessary to attain such objectives.
In making any findings pursuant to this section, the director shall base his findings upon the facts, testimony, and evidence which is received at the public hearing together with any other relevant facts which are available to him from official publications or institutions of recognized standing.
Any marketing order in effect on August 27, 1945, which was duly issued by the director pursuant to this chapter prior to May 28, 1945, and in effect on such date, shall continue in full force and effect and shall be conclusively presumed to be in conformity with the provisions of this article as amended.
ARTICLE 8. Advisory Boards and Committees [58841. - 58853.]
Any marketing order which is issued pursuant to this chapter shall provide for the establishment of an advisory board to assist the director in the administration of any marketing order. The members of the advisory board shall be appointed by the director and may hold office at the pleasure of the director. A marketing order may, however, provide for the appointment of members from nominations made by the producers and handlers and may also provide for the method of selecting such nominees.
If the marketing order affects directly only producers of a particular commodity, the members of the advisory board shall be producers. If the marketing order affects directly only handlers of a particular commodity, the members of the advisory board shall be handlers.
If the marketing order affects directly both producers and handlers of a particular commodity the advisory board shall be composed of both producers and handlers. The number of producers or handlers upon any such advisory board shall be of such number of producers or handlers as the director finds is necessary to assist properly in the administration of such order.
Any raisin marketing order or agreement involving producers operating under this chapter shall provide for, and the director shall appoint, a person to represent cooperative bargaining associations organized pursuant to Chapter 2 (commencing with Section 54401) of Division 20 from nominations made by the associations to the advisory board.
The person so appointed shall be a voting member of the advisory board.
Upon the recommendation of the advisory board, the director may appoint one person who is neither a producer nor a handler to represent the department or the public generally.
A member of an advisory board is entitled to actual expenses which are incurred while engaged in performing duties that are authorized by this chapter and, with the approval of the advisory board concerned, may receive compensation not to exceed fifty dollars ($50) per day for each day spent in actual attendance at, or traveling to and from, meetings of the board or on special assignment for the board.
The director may authorize an advisory board to do all of the following:
Enter into contracts or agreements.
Employ necessary personnel, including attorneys engaged in the private practice of the law, and fix their compensation and terms of employment.
Incur such expenses, to be paid from moneys which are collected as provided in Article 10 (commencing with Section 58921), as the director may deem necessary and proper to enable the advisory board properly to perform its duties as authorized by this chapter.
Receive, invest, and disburse funds pursuant to the provisions of Article 10 (commencing with Section 58921).
The duties of an advisory board are administrative only and any such board may do only the following:
Subject to the approval of the director, administer the marketing order.
Recommend to the director administrative rules and regulations which relate to the marketing order.
Receive and report to the director complaints of violations of the marketing order.
Recommend to the director amendments to the marketing order.
Assist the director in the assessment of members of the industry and in the collection of funds to cover expenses incurred by the director in the administration of the marketing order.
Assist the director in the collection of such necessary information and data as the director may deem necessary to the proper administration of this chapter.
Each advisory board shall, annually, report to the members of the industry who are subject to its marketing order on the activities and program, including, but not limited to, the income and expenses, the fund balance, and a report of progress in achieving program goals, of such a marketing order, as prescribed by the director.
The members or alternate members of any advisory board, including employees of the advisory board, are not responsible individually in any way whatsoever to any person for liability on any contract or agreement of the advisory board.
In addition to the advisory board, one or more special committees or subcommittees may be established to assist the advisory board in carrying out its duties and functions. Upon approval of the director, each advisory board may establish committees or subcommittees to carry out assigned duties and functions and designate the members or alternate members of the advisory board to serve upon such committees.
If the marketing order so authorizes, or upon the recommendation of the advisory board, the director may authorize the establishment of special committees or subcommittees of persons who are not members or alternate members of the board to perform specific duties and functions. The members and alternate members of any such special committee or subcommittee shall be appointed by the director.
An advisory board may at any time invite any persons to their meetings to serve in an advisory capacity and the director may, if requested by the advisory board, pay necessary expenses to such persons at rates not to exceed those granted to advisory board members.
Any action of any committee, special committee, or subcommittee of the board is subject to final approval by the advisory board. Members and alternate members of any committee, special committee, or subcommittee, whether by appointment or approval of the director, are entitled to reimbursement for actual expenses which are incurred while acting in their authorized capacities.
It is hereby declared, as a matter of legislative determination, that the producers, or handlers, or both producers and handlers, appointed to any advisory board pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such advisory boards, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
Notwithstanding Section 11123 of the Government Code, all of the following shall apply to a meeting held by teleconference under this chapter by an advisory board:
A member of the advisory board participating by teleconference shall be listed in the minutes of the meeting and shall provide notice of his or her participation by teleconference at least 24 hours before the meeting.
The advisory board shall designate a primary physical meeting location where participants may physically attend the meeting and participate. At least one member of the advisory board shall be in attendance at the primary physical meeting location.
The teleconference phone number, and, if applicable, the Internet Web site or other information indicating how the public can access the meeting remotely, shall be included in the agenda, which shall be available to the public.
Nothing in this section shall exempt the advisory board from providing information regarding the physical location of an advisory board meeting or any teleconference participation information, including the identity of an advisory board member who might be participating by teleconference.
Prior to holding a meeting by teleconference pursuant to this section, the advisory board shall adopt teleconferencing guidelines to address issues that include, but are not limited to, cancellations as a result of technical difficulties, ensuring transparency, and public participation.
ARTICLE 9. Terms of Marketing Orders [58881. - 58897.]
Except as otherwise provided in Sections 58657 and 58747, any marketing order which is issued by the director pursuant to this chapter may contain any or all of the provisions which are prescribed by this article for regulating, or providing methods for regulating producer marketing, or the handling, or any of the operations of processing or distributing by handlers, of any commodity within the state, but no others.
A marketing order may contain provisions for determining the existence and extent of the surplus of any commodity, or of any grade, size, or quality of it, and providing for the control and disposition of such surplus, and for equalizing the burden of such surplus elimination or control among the producers, processors, distributors, or other handlers that are affected.
Notwithstanding any other appropriate means of equalizing the burden of surplus control and its elimination as provided in this chapter, provision may be made for the creation of a stabilization fund to be used for purchasing or otherwise acquiring any portion of the surplus of any commodity either in fresh or processed form, except when processed in hermetically sealed containers, and for the diversion of such surplus quantity of such commodity which is so acquired into noncompetitive or byproducts uses or for disposing of such surplus in noncommercial channels. Money for such stabilization fund shall be provided by means of the establishment of an assessment rate for such purpose levied upon producers or handlers, or upon both producers and handlers. Such assessment rate shall be based upon the units in which such commodity is handled or marketed or upon any other uniform basis which the director determines to be reasonable and equitable. For convenience of collection, the director may collect any producer assessments from handlers of such commodity. Handlers paying such assessments for, and on behalf of, any producers may deduct such producer assessments from any money which is owed by such handlers to such producers.
A marketing order may contain provisions for limiting the total quantity of any commodity, or of any grade, size, or quality of it, which may be marketed by producers, or processed, distributed, or otherwise handled within this state during any specified period by any and all persons that are engaged in such producer marketing, processing, distributing, or handling. Any such limitation shall be applied under a uniform rule which is applicable to all such persons so regulated. The total quantity of any such commodity which is so regulated and permitted to be marketed by producers, processed, distributed, or otherwise handled, shall not be less than the quantity which the director finds is reasonably necessary to supply the market demands of consumers of such commodity.
The marketing of green ripe olives is not, however, subject to any provisions of a marketing order which limits the total quantity of such commodity which may be marketed.
A marketing order may contain provisions for allotting the quantity of any commodity, or of any grade, size, or quality of it, which each handler may purchase or acquire from, or handle on behalf of, any and all producers of the commodity, within this state during any specified period under a uniform rule, which is applicable to all handlers that are so regulated based upon the amounts produced or sold by such producers in a prior period which the director finds to be representative, or upon the current season’s production or sales of such producers, or both, to the end that the total quantity of such commodity, or of any grade, size, or quality of it, which is so purchased or handled within this state is apportioned equitably among the producers of the commodity.
A marketing order may contain provisions for allotting the quantity of any commodity, or of any grade, size, or quality of it, which each handler may process, distribute, or handle within this state under a uniform rule, which is applicable to all handlers that are so regulated, which is based upon the quantities of such commodity, or of any grade, size, or quality of it, of the current season’s crop which each such handler has available for such processing, distribution, or handling, or upon the quantities of such commodity, or of any grade, size, or quality of it, which is so processed, distributed, or handled by each such handler in a prior period which the director finds to be representative, or based upon both, to the end that the total quantity of such commodity, or any grade, size, or quality of it, processed, distributed, or handled within this state during any specified period is equitably apportioned among all such handlers of the commodity.
A marketing order may contain provisions which regulate the period during which any commodity, or any grade, size, or quality of such commodity, may be processed, distributed, or otherwise marketed within this state by any and all persons that are engaged in such processing, distributing, or marketing within this state. The total quantity of such commodity which is so regulated and permitted to be processed, distributed, or otherwise marketed during such period, shall not, however, be less than the quantity which the director finds is necessary to reasonably supply the needs of consumers of such commodity.
A marketing order may contain provisions for the establishment of surplus, stabilization, or byproduct pools for any commodity, or of any grade, size, quality, or condition of it, and providing for the sale of the commodity in any such pool and for the equitable distribution among the persons that are participating in the pool of the net returns which are derived from the sale of such commodity. The marketing of green ripe olives is not, however, subject to any provisions of a marketing order which relate to the establishment and operation of surplus pools.
If the marketing order authorizes the establishment of any such pool, the advisory board may receive such commodity from each producer or handler and handle it according to the grade, size, quality, or condition of the commodity and account to each producer or handler that is participating in the pool upon a pro rata basis for the net proceeds derived from the sale of the commodity.
The contents of any surplus pool shall not be marketed by the advisory board in any form which would compete directly with that portion of the commodity which is marketed in regular channels of trade. However, any portion of any surplus pool may be transferred by the advisory board upon any gratuitous basis to charitable organizations and other similar agencies under proper safeguards to insure that none of such commodity shall compete directly with the unrestricted portion of such commodity.
The advisory board may dispose of the contents of a stabilization pool in the regular marketing channels in such manner and at such times as it deems advisable, consistent with the maintenance of stabilized marketing conditions for such commodity. The advisory board may dispose of the contents of any byproduct pool only for byproducts or for other similar purposes under proper safeguards to prevent such portion of the commodity so disposed of from directly competing with that part of the commodity which is marketed in the usual form or in the regular channels of trade.
If the marketing order authorizes the establishment of a surplus, stabilization, or byproduct pool, the advisory board may do any of the following:
Arrange for and operate any necessary facilities for the storing, financing, grading, packing, servicing, processing, preparing for market, selling, and disposing of the contents of any pools which are provided for in this chapter. The board shall not, however, engage in commercial warehousing.
Pledge all of the commodity in any such pools with banks or other lending agencies for the purpose of obtaining loans upon it. The board shall have title, for the purpose of financing and handling, to all of the commodity in any such pools.
Create, by a uniform assessment upon producers, or upon some other uniform and equitable basis, maintain, and disburse an equalization fund to be used for the removal of any inequalities between producers or handlers that are participating in any pool which result from errors in estimating production or surplus or for indemnifying producers whose production, in whole or in part, is diverted in green form or otherwise from normal marketing outlets or diverted to byproducts, relief, or other noncompetitive purposes pursuant to the provisions of the marketing order.
A marketing order may contain provisions which establish, or provide for the establishment, with respect to any commodity, either as delivered by producers to handlers or processors, or as handled, processed, or otherwise prepared for market, or as marketed by producers, handlers, or processors, both of the following:
Grading standards of quality, condition, size, maturity, or pack, which standards may include minimum standards. The standards so established shall not, however, be established below any minimum standards which are prescribed by law for such commodity.
Uniform inspection and grading of such commodity in accordance with the standards which are so established.
A marketing order may contain provisions for the establishment of plans for advertising and sales promotion to maintain present markets or to create new or larger markets for any commodity that is grown in this state, or for the prevention, modification, or removal of trade barriers that obstruct the free flow of any commodity to market. The secretary may prepare, issue, administer, and enforce plans for promoting the sale of any commodity.
Any plan shall be directed toward increasing the sale of the commodity without reference to any private brand or trade name that is used by any handler with respect to the commodity regulated by the marketing order, except the use of wine if other than private brands or private trade names are unavailable, and except that marketing orders that provide for the advertising and sales promotion of raisins, prunes, and walnuts may allow those plans to credit the pro rata assessment obligations of a handler with all or any portion of that handler’s direct expenditures for the marketing promotion that may include private brand or trade name advertising performance allowances, sales promotions, couponing, and in-store promotion programs and materials.
Notwithstanding any provision of this section, any marketing order for fluid milk may contain in its advertising and sales promotion plan provisions to allocate funds for promotions of cheese, ice cream, or butter products made with California milk, including promotions in which brand or trade names are used, but only if the use is incidental to the promotion of the California milk product and not in direct promotion of the brand or trade name, and if the allocation of funds is made available on a nondiscriminatory basis to all retailers and manufacturers of butter, ice cream, or cheese utilizing milk produced in California. Permissible private brand or trade name marketing promotions may include advertising, performance allowances, sales promotions, couponing subject to Section 61375 and in-store promotion programs and materials, and other marketing communication tools.
For purposes of this subdivision, “butter” means the product made by gathering the fat of fresh or ripened milk or cream into a mass, which also contains a small portion of other milk constituents.
This subdivision shall not become operative unless approved as set forth in subdivision (c) of Section 58993.
No advertising or sales promotion program shall be issued by the secretary that makes use of false or unwarranted claims in behalf of any product, or disparages the quality, value, sale, or use of any other commodity.
Notwithstanding Section 58889, any marketing order for processed fruits, nuts, or vegetables may contain in its advertising and sales promotion plan provisions to allocate funds to promote private brands or trade names.
Notwithstanding subdivision (b) of Section 58889, effective immediately, a marketing order may contain provisions for the establishment of plans for advertising and sales promotion, including any private brand or trade name, to maintain present international foreign markets or to create new or larger international foreign markets for any commodity which is grown in this state, provided that effective January 1, 1978, such advertising and sales promotion plans require that each individual commodity package label indicate the commodity is of California origin in English or other appropriate language.
A marketing order may contain provisions which relate to the prohibition of unfair trade practices. In addition to the unfair trade practices now prohibited by law, applicable to the processing, distribution, or handling of any commodity within this state, the director may include in any marketing order which is issued provisions that are designed to correct any trade practice which affects the processing, distributing, or handling of any commodity within this state which the director finds, after a hearing upon the marketing order in which all interested persons are given an opportunity to be heard, is unfair and detrimental to the effectuation of the declared purposes of this chapter.
A marketing order may contain provisions for the application for, review, certification, and equitable payment of, production adjustment benefits to growers from funds which are collected for such purpose on a uniform basis from all commercial growers of any commodity in the state, for which production adjustment payments are made. Such funds may be supplemented by funds, if any, which are received from federal, state, or other agencies for such purpose.
A marketing order may contain provisions for carrying on research studies in the production, processing, or distribution of any commodity and for the expenditure of moneys for these purposes. Prior to the implementation of a research program authorized by this section that will extend beyond the next reapproval date of the marketing order pursuant to Section 59086, the director shall call a public hearing pursuant to Article 6 (commencing with Section 58771) to receive testimony regarding support for the research program by persons directly affected by the marketing order. After the hearing, the director shall find and determine, based upon the evidence received, whether or not to conduct a referendum pursuant to subdivision (c) of Section 58993 prior to approval of the proposed research program in order to evaluate with greater certainty the support for the program by the persons directly affected by the marketing order.
In carrying out this section, an advisory board may, subject to the approval of the director, establish a trust account to fund research programs on an ongoing basis. These programs may extend beyond the termination date of the marketing order. For any program designed to last more than one year, funding shall be provided for from the trust account during the initial year.
In any research in production or processing which is carried on pursuant to this section, the Vice President for Agricultural Sciences of the University of California and the advisory board which is provided for in Article 8 (commencing with Section 58841) shall cooperate in selecting the research program which is to be carried on from time to time. Insofar as practicable, the programs shall be carried out by the University of California, but if the vice president and the advisory board determine that the university has no facilities for a particular program, or that some other research agency has better facilities for it, the program may be carried out by any other research agency which is selected by the vice president and the advisory board.
In carrying out this section, an advisory board may carry out research programs for the purpose of developing and testing new products in selected markets. The proposed programs shall be submitted to the director for his or her approval prior to the expenditure of funds for the program. The proposal submitted shall include, among other things, a description of the new products, the test market to be utilized, and the duration of the program.
A marketing order may contain provisions for research studies concerning the health, food, nutritional, therapeutic, dietetic or such qualities of other food products, for the development of new food products, or for the development of new uses for agricultural products.
A marketing order may contain provisions which establish, or provide authority for establishing, for any commodity, either as such commodity is produced or is delivered by producers to handlers, or as handled or otherwise prepared for market, or as marketed by producers or handlers, an educational program which is designed to acquaint producers, handlers, consumers or other interested persons with quality improvement and nutritional values, including sanitation practices, procedures, or methods as applied to such commodity.
A marketing order may contain provisions which establish, or provide authority for establishing, and for regulating the permissive use of an official board brand, trade name, or label, or other distinctive designation of grade, quality, or condition, except the grade or quality designations in effect pursuant to state or federal grade standards, for any commodity, other than wine, either as such commodity is produced or is delivered by producers to handlers, or as handled or otherwise prepared for market, or marketed by producers or handlers. As provided in Section 59236, the permissive use of any such official board brand, trade name, or label or other distinctive designation of quality shall be limited to producers and handlers of the commodity that are participating in the marketing agreement or order, and that are in compliance with its provisions and with any regulation, or rule and regulation, which is adopted under it. Any official brand or trade name which is established pursuant to this section shall not be construed as a private brand or trade name with respect to Section 58889.
A marketing order may contain provisions to detect, control, prevent damage by or to eradicate insects, predators, diseases, or parasites with respect to any commodity or group of commodities. The advisory board may recommend and the director may approve measures to assist in the prevention or reduction of losses to crops or livestock caused by predators, insects, disease or parasite infestations, including the establishment and operation of detection, inspection, spraying, dusting, fumigating or other control measures.
For the purposes of this section, (1) assessments established pursuant to Article 10 (commencing with Section 58921) of this chapter may include an assessment for nonbearing acreage as well as bearing acreage of the commodity affected by such predators, insects, disease, or parasite, and (2) the director may use both the bearing and nonbearing acreage of such commodity as a measure of production for assent or referendum purposes in relation to such assessments.
As used in this section, “nonbearing acreage” means acreage planted to produce the particular commodity covered by the marketing order during the marketing season on which no quantity of the product is produced for marketing or is anticipated will be produced for market during such marketing season.
A marketing order may contain provisions for the gathering and dissemination of weather data to producers of any commodity, and to any persons providing services relating to production of a commodity, when the data is necessary to aid in any manner in the production or harvesting of that commodity.
To address catastrophic events, a marketing order may contain provisions for the establishment and operation of an indemnity trust fund to cover livestock and livestock product losses due to disease, natural disaster, or accidents.
ARTICLE 10. Assessments and Funds [58921. - 58941.]
Except as otherwise provided in Section 58926, each marketing order which is issued pursuant to this chapter shall provide for the levying and collection of assessments in sufficient amounts to defray the necessary expenses which are incurred by the director in the formulation, issuance, administration, and enforcement of the marketing order. If the marketing order authorizes the carrying out of advertising and sales promotion plans, it shall also provide for the levying and collection of assessments in sufficient amounts to defray the expenses of such activities. No assessment for advertising or sales promotion activities shall, however, be levied under any marketing order with respect to the marketing and handling of green ripe olives except that green ripe olives may be assessed for their proportionate share of administrative costs.
Each marketing order shall indicate the maximum rate of any assessment which may be collected and the proportion, if any, of each assessment which is payable by each producer and handler that is directly regulated or affected by such marketing order.
The advisory board which is appointed by the director to assist him in administering each marketing order shall recommend to the director, from time to time, budgets to cover necessary expenses, and budgets to cover the expenses of carrying out sales promotion plans if such plans are authorized in the marketing order, and the assessment rates which are necessary to provide sufficient funds. If the director finds that each such budget and assessment rate are proper and equitable and will provide sufficient moneys to defray the expenses which may be incurred, he may approve such budget and rate of assessment and order that each producer and handler so assessed shall pay to the director, at such times and in such installments as the director may prescribe, an assessment which is based upon the units in which such commodity is marketed, or upon any other uniform basis which the director determines to be reasonable and equitable.
The amount of the assessment for necessary expenses shall not, however, exceed the following:
In the case of producers, 212 percent of the gross dollar volume of sales of the commodity which is affected by all such producers regulated by such marketing order.
In the case of processors, distributors, or other handlers, 212 percent of the gross dollar volume of purchases of the commodity which is affected by the marketing order from producers or of the gross dollar volume of sales of the commodity which is affected by the marketing order and handled by all such processors, distributors, or other handlers that are regulated by such marketing order during the marketing season during which such marketing order is effective.
Any assessment rate which is established for assessments to defray the expenses of advertising and sales promotion plans shall be in an amount which does not exceed 4 percent of the gross dollar volume of sales by all producers or by all processors, distributors, or other handlers of such commodity which is regulated by such marketing order during the marketing season during which such marketing order is effective.
In lieu of the assessments to defray the costs of formulation, issuance, administration, and enforcement and advertising or sales promotion provided for in Section 58921, if the marketing order contains provisions for advertising or sales promotion as authorized in this chapter, the director may approve and fix an assessment for producers and an assessment for handlers as the case may be, not exceeding 612 percent of the gross dollar volume of sales of such commodity by all producers, or by all processors, distributors, or other handlers of such commodity regulated by such marketing order during the marketing season during which such marketing order is effective. The method and manner of assessment and collection of such assessment, and the limitations and restrictions applicable thereupon, shall conform in all respects with the provisions of this article regarding assessments for advertising and sales promotion, except as to the maximum amount of such assessment.
If the director approves and fixes a single assessment, the advisory board shall recommend and the director may approve the proportions of such assessment which may be expended to defray the costs of formulation, issuance, administration, and enforcement of the marketing order and that which may be expended for such advertising or sales promotion program. The proportion of such assessment which may be allocated in such manner to defray the cost of such administrative activities for such marketing order shall not, however, exceed the maximum amount which is authorized in Section 58924.
If any advisory board of any marketing order has reason to believe that the administration of a marketing order will be facilitated or the attainment of the purposes and objectives of the marketing order will be promoted thereby, the advisory board may borrow money with or without interest to carry out any provision of any marketing order which is authorized by this chapter, and may hypothecate anticipated assessment collections that are applicable to such respective provisions.
Any assessment which is levied as provided in this article, in such specified amount as may be determined by the director pursuant to this chapter, is a personal debt of every person so assessed and shall be due and payable to the director if payment is called for by the director. If any such person fails to pay any such assessment upon the date which is determined by the director, the director may file a complaint against such person in a state court of competent jurisdiction for the collection of the assessment.
If any producer or handler that is duly assessed pursuant to the provisions of this chapter fails to pay to the director the amount so assessed on or before the date which is specified by the director, the director may add to such unpaid assessment an amount not exceeding 10 percent of such unpaid assessment to defray the cost of enforcing the collection of such unpaid assessment. In addition to such payment for the cost of enforcing such collection, any such producer or handler shall pay to the director a penalty of 5 percent for each 30 days of the unpaid balance for each 30 days the assessment is unpaid, prorated over the days unpaid, commencing 30 days after notice has been given to such producer or handler of his failure to pay the assessment on the date required, unless the director determines, to his satisfaction, that such failure to pay is due to resonable cause beyond the producer’s or handler’s control. Such penalty shall not exceed 50 percent of the total amount of the assessment due.
The director may require the persons that are assessed to deposit with him in advance the following amounts:
An amount for necessary expenses.
An amount which shall not exceed 25 percent of the assessment to cover the costs of advertising or sales promotion plans which are incurred prior to the receipt of sufficient funds from the assessment for such purpose.
The amount of any deposit which is required by the director pursuant to Section 58931 shall be based upon the estimated number of units to be marketed or handled by the person that is assessed, or upon any other uniform basis which the director determines is reasonable and equitable. Such basis shall be applicable during the marketing season during which such marketing order is effective.
At any time after the funds which are credited to the administrative account, or the advertising or sales promotion account, of the marketing order are sufficient to so warrant, or at the close of the marketing season, the sums deposited by any person shall be adjusted to the amount which is properly chargeable against such person pursuant to the assessment which was authorized.
In lieu of requiring advance deposits, or in order generally to provide funds for defraying administrative or advertising and sales promotion expenses until such time as sufficient moneys are collected for such purpose from the payment of the assessments which are established pursuant to this article, the director may receive and disburse for such expense purposes contributions which are made by producers, processors, distributors, or other handlers. Neither the advisory board nor the director is responsible for the repayment of such contributions. If, however, collections from the payment of established assessments credited to the respective marketing order accounts are sufficient to so warrant, the board shall recommend and the director shall authorize, the repayment of contributions, or authorize the application of such contributions to the assessment obligations of persons that made such contributions.
In order to provide funds for defraying expenditures authorized by the marketing order, the director or any advisory board may also receive and disburse contributions that are made by persons other than those directly affected by the marketing order.
For the convenience of making collections of any producer assessments which are established pursuant to this article, the director may collect such assessments from the handlers of the commodity which is being regulated. Any handler that pays any such assessments for and on behalf of any producer may deduct such producer assessments from any money which is owed by such handler to such producer. Any marketing order may require a handler to deduct producer assessments from any money which is owed by such handler to such producer. Such producer assessment deductions are hereby declared to be trust funds held by the handler for the purposes of the marketing order concerned and shall be remitted timely, with assessment reports, to the director.
The director may adopt rules and regulations with respect to the assessment and collection of funds pursuant to this article.
Any money that is collected by the director pursuant to this chapter shall be deposited in a bank or other depository that is approved by the Director of Finance, allocated to each marketing order under which it is collected. Except as provided in Section 58941, these funds shall be disbursed by the director or the advisory board only for the necessary expenses that are incurred by the advisory board and that are approved by the director with respect to each marketing order. Allowable expenses include expenses generated by the auditing requirement imposed by subdivision (b).
Funds so collected shall be deposited and disbursed in conformity with appropriate rules and regulations that are prescribed by the director. The expenditure of these funds is exempt from the provisions of Section 925.6 of the Government Code.
All such expenditures by the director shall be audited at least once every two years by one of the following means:
By contract with a certified public accountant.
By contract with a public accountant holding a valid permit issued by the California Board of Accountancy.
By contract with a public accounting firm.
By agreement with the Department of Finance.
A copy of the audit shall be delivered within 30 days after the completion of the audit to the Governor, the director, and the Controller.
The director may, at the close of each fiscal period which is used by the advisory board for budgetary purposes, refund any money which remains in such fund that is allocable to any particular commodity which is affected by a marketing order or, upon recommendation of the advisory board and with the approval of the director, all or a portion of such money may be carried over into the next succeeding fiscal period if the director finds that such money is required to defray subsequent expenses under the marketing order.
Any refund made pursuant to this section shall be on a pro rata basis made to persons from whom, or on whose behalf, the assessments being refunded were collected. Upon termination by the director of any marketing order, any remaining balances which are not required by the director to defray the expenses of such marketing order, shall be returned by the director upon a pro rata basis, to all persons from whom, or on whose behalf, such assessments were collected unless the director finds that the amounts so returnable are so small as to make impractical the computation and remitting of such pro rata refund to such persons. If the director makes such a finding, he may use the moneys in such fund to defray the expenses which are incurred by him in the formulation, issuance, administration, or enforcement of any subsequent marketing order.
Assessments paid on milk pursuant to the requirements of a market milk marketing order or a manufacturing milk marketing order established under this chapter shall be refunded to producers who meet the following criteria:
The producer shipped milk to a processor during the months of June or July 1986.
The producer was not paid, or received only partial payment, for the milk shipped.
The producer has agreed to repay the refunded assessments to the affected programs if, at a subsequent date, the producer is paid for the milk.
The producer shall receive a full refund of the amount assessed for milk shipped and for which no payment was received. If partial payment was received, the producer shall receive a refund of assessments paid on milk for which payment was not received.
In lieu of payment to the producer, the refund shall be paid to an entity which markets milk or otherwise acts on behalf of a producer who would otherwise qualify for the refund under subdivision (a), if that entity demonstrates to the satisfaction of the director that it paid the assessments for the producer.
If a producer, or an entity referred to in subdivision (c), subsequently receives full or partial payment for milk for which assessments have been refunded, the producer or entity, as the case may be, shall repay the assessments in an amount proportionate to the portion of milk for which payment has been received.
Refunds shall not be made pursuant to this section if the refund would cause a producer to incur an additional assessment obligation to the National Milk Promotion Program.
The director shall adopt procedures for refunding assessments in accordance with this section. The procedures shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
Any money which is deposited pursuant to this article, which the director determines is available for investment, may be invested or reinvested by the Treasurer or an advisory board in any of the securities which are described in Article 1 (commencing with Section 16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code, or placed in a depository as provided in Chapter 4 (commencing with Section 16500) of Part 2 of Division 4 of Title 2 of the Government Code, and handled in the same manner as money in the State Treasury.
Any increment which is received from the investment or reinvestment or deposit, if made by the Treasurer, shall be remitted to the advisory board whose funds were invested, reinvested, or deposited, and shall be deposited and disbursed as provided in Sections 58937 and 58938. The Treasurer may deduct from the remittance an amount equal to the reasonable costs incurred in carrying out this section or may bill the advisory board for the costs, and the advisory board shall pay the costs from money which is collected for it pursuant to this chapter.
Any check or warrant which is drawn against the funds of any marketing order which remains unclaimed or uncashed for a period of six months from the date of issuance shall be canceled and the money retained for disbursement to the original payee or claimant upon satisfactory identification for a period of one year from the time the check or warrant is canceled. The money so retained, if not claimed within the period of one year, shall be credited to the then currently operating marketing order for the commodity under which the funds so retained were collected. If there is no marketing order then in effective operation for the commodity, the funds shall be credited to the unexpended balance, if any, of the last previous marketing order for the commodity. If there is no marketing order then in current operation, or no balance exists from any previous marketing order to which the funds may be credited, the funds so retained may be expended by the director for the benefit of any marketing order established under the provision of this chapter.
Notwithstanding the provisions of Article 3 (commencing with Section 241), Chapter 2, Division 1 of this code, each marketing order or agreement shall be charged the amounts which are computed by the director as required to reasonably provide for services to be rendered to such marketing orders by the department. Such amounts are subject to approval by the advisory board which is concerned, shall be included in each budget which is recommended to and approved by the director pursuant to Sections 58923 and 58924, and shall be withdrawn as required by the director and expended only for the necessary expenses which are incurred by the director in the administration of this chapter.
ARTICLE 11. Deposits by Applicants for Marketing Order [58961. - 58962.]
Prior to the issuance of any marketing order by the director pursuant to this chapter, the director may require the applicants for the issuance of the marketing order to deposit with him such amount as he may deem necessary to defray the expenses of preparing and making effective such marketing order. Such funds shall be received, deposited, and disbursed by the director in accordance with the provisions which are set forth in Article 10 (commencing with Section 58921) of this chapter.
The director may reimburse the applicant, from any funds for necessary expenses which he has received pursuant to Article 10 (commencing with Section 58921) of this chapter, for any of the following:
Any amount deposited with the director by applicant pursuant to Section 58961.
For any necessary expenses which are incurred by the applicant in preparing and in obtaining approval of the marketing order, upon receipt of a verified statement of such expenses which is approved by the director.
ARTICLE 12. Assent to Marketing Orders [58991. - 59000.]
A marketing order or major amendment to it, which directly affects handlers, that is issued pursuant to this chapter, shall not become effective unless and until the director finds one of the following has occurred:
It has been assented to in writing by not less than 65 percent of the handlers that are engaged, within the area specified in the marketing order or amendment to it, in the handling of the commodity which is regulated by the marketing order.
It has been assented to in writing by handlers that handle not less than 65 percent of the volume of the commodity which is regulated by the marketing order.
It has been approved by handlers in a referendum among handlers that are directly affected. The director may make the finding pursuant to this subdivision if the valid votes cast in the referendum represent not less than 40 percent of the total number of handlers of the commodity of record with the department, and if the handlers that cast ballots in the referendum in favor of the marketing order or amendment to it represent not less than 65 percent of the total number of handlers that cast ballots in the referendum and handled not less than 51 percent of the total quantity of the commodity which was marketed in the next preceding marketing season, or the current marketing season if the harvest and delivery of the commodity to handlers is complete, by all of the handlers that cast ballots in the referendum, or if the handlers that cast ballots in the referendum in favor of the marketing order or amendment represent not less than 51 percent of the total number of handlers that cast ballots in the referendum and handled not less than 65 percent of the total quantity of the commodity which was handled in the next preceding marketing season, or the current marketing season if the harvest and delivery of the commodity to handlers is complete, by all of the handlers who cast ballots in the referendum. The quantity of the commodity handled by the handler may be stated on the referendum ballot returned by each handler or may be obtained by requiring handlers to report that volume pursuant to Section 58775.
Any marketing order or major amendment to it which directly affects processors that are engaged in the operation of canning of fresh fruits or vegetables or canning or packing of dried fruits shall not be made effective by the director unless and until the director finds one of the following has occurred:
The marketing order or amendment to it has been assented to in writing by the processors that are engaged in the marketing activity which is regulated by the marketing order or amendment to it that processed not less than 65 percent of the volume of the commodity which is processed within the area defined in the marketing order or amendment to it and by 65 percent of the number of the processors that are engaged in the marketing activity which is regulated by the marketing order or amendment to it.
It has been approved by processors in a referendum among processors that are directly affected. The director may make the finding pursuant to this subdivision if the valid votes cast in the referendum represent not less that 40 percent of the total number of processors of the commodity of record with the department, and if the processors that cast ballots in the referendum in favor of the marketing order or amendment to it represent not less than 65 percent of the total number of processors that cast ballots in the referendum and processed not less than 51 percent of the total quantity of the commodity which was marketed in the next preceding marketing season, or the current marketing season if the harvest and delivery of the commodity to processors is complete, by all of the processors that cast ballots in the referendum, or if the processors that cast ballots in the referendum in favor of the marketing order or amendment represent not less than 51 percent of the total number of processors that cast ballots in the referendum and processed not less than 65 percent of the total quantity of the commodity which was marketed in the next preceding marketing season or the current marketing season if the harvest and delivery of the commodity to processors is complete, by all of the processors who cast ballots in the referendum. The quantity of the commodity processed by the processor may be stated on the referendum ballot returned by each processor or may be obtained by requiring processors to report that volume pursuant to Section 58775.
No marketing order or major amendment to it, which directly affects producers or producer marketing, that is issued pursuant to this chapter, shall be made effective by the director unless and until the director finds one or more of the following has occurred:
It has been assented to in writing by not less than 65 percent of the producers that are engaged, within the area specified in the marketing order or amendment to it, in the production for market, or engaged in the producer marketing, of not less than 51 percent of the commodity which is specified in the marketing order or the amendment to the marketing order in commercial quantities.
It has been assented to in writing by producers that produce not less than 65 percent of the volume of the commodity and by 51 percent of the total number of producers that are so engaged.
It has been approved by producers in a referendum among producers that are directly affected. The director may make the finding if the valid votes cast in the referendum represent not less than 40 percent of the total number of producers of the commodity of record with the department, and if the producers that cast ballots in the referendum in favor of the marketing order or amendment to it represent not less than 65 percent of the total number of producers that cast ballots in the referendum and marketed not less than 51 percent of the total quantity of the commodity which was marketed in the next preceding marketing season, or the current marketing season if the harvest and delivery of the commodity to handlers is complete, by all of the producers that cast ballots in the referendum or if the producers that cast ballots in the referendum in favor of the marketing order or amendment represent not less than 51 percent of the total number of producers that cast ballots in the referendum and marketed not less than 65 percent of the total quantity of the commodity which was marketed in the next preceding marketing season, or the current marketing season if the harvest and delivery of the commodity to handlers is complete, by all of the producers who cast ballots in the referendum. The quantity of the commodity delivered by the producer may be stated on the referendum ballot returned by each producer or may be obtained by requiring handlers to report that volume pursuant to Section 58775.
If any marketing order or any major amendment to any marketing order is issued by the director for the approval of producers, handlers, or processors, the director shall determine whether the approval shall be by written assents or by referendum.
If the director determines that it should be by referendum, the director shall establish a referendum period not to exceed 30 days. If the director determines that the referendum period so established does not provide sufficient time for the balloting, the director may extend the referendum period not more than 15 additional days. At the close of the referendum period, the director shall count and tabulate the ballots filed during the referendum period.
If from the tabulation the director finds that the number of producers that voted in the referendum and that the number of producers that voted in favor of the marketing order or amendment to the marketing order are sufficient for him to make the finding that producers that are directly affected have approved the marketing order or amendment, the director may make the marketing order or amendment to the marketing order effective.
If the director finds from the tabulation of such referendum that the number of producers that voted in favor of such marketing order or amendment to the marketing order is not sufficient for him to make the finding that producers that are directly affected have approved the marketing order or amendment to it, he shall not make the marketing order or amendment effective.
The director may prescribe such additional procedures as may be necessary to conduct the referendum.
In finding whether the marketing order or major amendment to it is assented to in writing or approved or favored by producers pursuant to the provisions of this chapter, the director shall consider the approval of any nonprofit agricultural cooperative marketing association, which is authorized by its members so to assent, as being the assent, approval, or favor of the producers that are members of, or stockholders in, that nonprofit agricultural cooperative marketing association.
Any producer that sells a growing crop to be harvested and marketed by another person is entitled to assent to, or vote in a referendum, if both of the following requirements are complied with:
At the time of sale of such growing crop the producer retains the exclusive right so to assent or to so vote.
The quantity of such growing crop can be determined to the satisfaction of the director.
ARTICLE 13. Major Amendments [59021. - 59037.]
In making effective major amendments to a marketing order, the director shall follow the same procedures which are prescribed in this chapter for the institution of a marketing order.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for any of the following:
Determining the existence and extent of the surplus of any commodity, or of any grade, size, or quality of it.
Providing for the control and disposition of such surplus and for equalizing the burden of such surplus elimination.
The establishment of a stabilization fund for equalizing surplus obligations.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for limiting the total quantity of any commodity, or of any grade, size, or quality of it, which may be prepared for market or marketed within this state.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for allotting the quantity of any commodity, or of any grade, size, or quality of it, which any handler may purchase or acquire from or handle on behalf of any and all producers of such commodity within this state.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for allotting the quantity of any commodity, or of any grade, size, or quality of it, which any handler may process, distribute, or handle within this state.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for regulating the period during which any commodity, or any grade, size, or quality of such commodity, may be processed, distributed, or otherwise marketed within this state.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for the establishment of surplus, stabilization, or byproduct pools for any commodity, or of any grade, size, quality, or condition of it.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for the establishment of uniform grading and inspection of any commodity and the establishment of grading standards of quality, condition, size, or pack of such commodity.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for the establishment of plans for advertising and sales promotion of any commodity.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority to prohibit unfair trade practices.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for the establishment of production adjustment requirements and benefit payments which relate to them.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority for carrying out research studies in the production, processing, or distribution of any commodity.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority to increase an assessment rate beyond the maximum rate which is authorized by the marketing order then in effect.
An amendment is a major amendment if it adds to, or deletes from, a marketing order authority to extend the application of the provisions of any marketing order to portions or uses of a commodity not previously subject to such provisions or to restrict or extend the application of such provisions upon the producers or handlers of such portions or uses of any such commodity.
Modification of any provision of any marketing order in effect for the purpose of clarifying the meaning or application of such provision or modifying administrative procedures for carrying out such provision is not a major amendment of such marketing order.
The exercise by the director of any regulatory authority which is authorized in a marketing order or marketing agreement is not a major amendment, but is a seasonal marketing regulation.
ARTICLE 14. Minor Amendments [59051. - 59052.]
The director may make minor amendments to any marketing order upon the recommendation of not less than 75 percent of the producer members or handler members of the advisory board, or not less than 75 percent of each group if both are represented upon the advisory board.
The director may require a public hearing upon minor amendments if in his opinion the substance of such minor amendments so warrant. The director is not, however, required to submit minor amendments for written assents or referendum approval.
ARTICLE 15. Termination or Suspension [59081. - 59088.]
The director shall suspend or terminate any marketing order, if he finds, after a public hearing duly noticed and held in accordance with the provisions of Article 6 (commencing with Section 58771) of this chapter, that such marketing order is contrary to, or does not tend to effectuate, the declared purposes or provisions of this chapter within the standards and subject to the limitations and restrictions which are imposed in this chapter.
The director shall terminate any marketing order if he finds that the termination of the marketing order is requested in writing, within a 90-day period, by at least 51 percent of the producers that are directly affected that produce at least 51 percent of the volume of the product, or by at least 51 percent of the handlers that are directly affected that handle at least 51 percent of the volume of the product.
The person or persons originating such a written request shall file a written notice with the director in such a manner that the date such a request is initiated can be readily ascertained. Any such person may withdraw his name from such a written request until the time the request is presented to the director.
A request to terminate a marketing order shall be submitted to the director by a petition signed by not less than the number of producers or handlers which produce or handle the volume of products specified in this section. The signatures to the petition need not all be appended to one sheet of paper. Each person signing the petition shall add to his signature his place of business, giving street and number. If no street and number exist, then a designation of the place of business shall be given which will enable the location to be readily ascertained.
Before circulating a petition to terminate a marketing order, its proponents shall notify the director of their intent to do so in order to ascertain the beginning date of the 90-day period.
After such notification to the director, the petition may be circulated among the producers or handlers affected. The petition shall bear a copy of the notice of intention. Signatures shall be secured within the time limit specified in this section. Any person may withdraw his name from a petition to terminate any marketing order until the time the petition is presented to the director.
If at least 25 percent of the producers that are directly affected that produce at least 25 percent of the product and at least 25 percent of the handlers that are directly affected that handle at least 25 percent of the product request, within a 90-day period, that such marketing order be submitted to reapproval, the director shall hold a hearing on the question of the reapproval of such marketing order, and whether such reapproval shall be by assent or referendum.
If the director finds after the hearing that a substantial question exists as to whether such marketing order is contrary to, or does not effectuate the declared purposes or provisions of, this chapter within the standards and subject to the limitations and restrictions which are imposed in this chapter, such marketing order shall be submitted for the reapproval of those producers and handlers that are directly affected, as provided in this article, within 120 days of the receipt of the original request.
The person or persons originating such a request shall file a written notice with the director in such a manner that the date such a request is initiated can be readily ascertained. Persons may withdraw their names from such a request until the time the request is presented to the director.
A request to hold a public hearing on a marketing order shall be submitted to the director by a petition signed by not less than the number of producers or handlers which produce or handle the volume of products specified in this section. The signatures to the petition need not all be appended to one sheet of paper. Each person signing the petition shall add to his signature his place of business, giving street and number. If no street and number exist, then a designation of the place of business shall be given which will enable the location to be readily ascertained.
Before circulating a petition to hold a public hearing on a marketing order, its proponents shall notify the director of their intent to do so in order to ascertain the beginning date of the 90-day period.
After such notification to the director, the petition may be circulated among the producers or handlers affected. The petition shall bear a copy of the notice of intention. Signatures shall be secured within the time limit specified in this section. Any person may withdraw his name from a petition to hold a public hearing on any marketing order until the time the petition is presented to the director.
If the director finds that the marketing order is not reapproved, he shall declare such order terminated. An order shall be considered reapproved if it has been assented to or favored at a referendum in the same manner as is required for a new marketing order.
At any time the director finds that a substantial number of persons that are directly affected by an order are in opposition to it, he shall hold a hearing on the question of the termination, suspension, amendment, or reapproval of such order, and shall, not more than 60 days after such hearing, terminate, suspend, or submit for amendment or reapproval such order, or make a finding that there is not sufficient opposition to the order to warrant any action.
A marketing order shall not be submitted for reapproval until one year after the original enactment, or within one year of any prior approval. However, if no provision is made in any marketing order for reapproval or for termination in less than five years, the director shall at least once each five years hold a hearing, duly noticed and held in accordance with the provisions of this chapter. If the director finds after the hearing that a substantial question exists as to whether such marketing order is contrary to, or does not effectuate the declared purposes or provisions of this chapter within the standards and subject to the limitations and restrictions which are imposed in this chapter, such marketing order shall be submitted for reapproval. The vote for reapproval shall be the same as used for original approval of a marketing order. The director shall determine whether such approval shall be by assent or referendum. An amendment to a marketing order which extends the term thereof shall be deemed a reapproval of the marketing order. A marketing order which within five years prior to the effective date of this act has been amended to fix or extend its term shall be deemed to have been duly reapproved.
The secretary may terminate, without a public hearing, any marketing order or marketing agreement that has been inoperative for three consecutive marketing seasons after giving notice of intent to terminate the marketing order or marketing agreement pursuant to subdivision (b) of this section.
The notice shall be posted on the department’s Internet Web site. Termination shall not become effective until five days after the date of the posting. The secretary shall also issue, at the time of the posting, a public notice to newspapers of general and statewide circulation concerning the secretary’s intention to terminate the marketing order or marketing agreement.
No suspension or termination of any marketing order or marketing agreement pursuant to this article shall become effective until the expiration of the marketing season then current.
ARTICLE 16. Publication of Notice [59111. - 59111.]
Upon the issuance of any order that makes effective a marketing order or marketing agreement, or any suspension, amendment, or termination of a marketing order or marketing agreement, a notice of the issuance shall be posted on the department’s Internet Web site. A marketing order or marketing agreement, or any suspension, amendment, or termination of it, shall not become effective until five days after the date of the posting. The secretary shall also mail a copy of the notice to every person that is directly affected by the terms of the marketing order or marketing agreement, or the suspension, amendment, or termination of the marketing order or marketing agreement, whose name and address are on file in the office of the secretary, and to every person that files in the office of the secretary a written request for the notice.
This section does not apply to the termination of any marketing order or marketing agreement under Section 59087.
ARTICLE 17. General Rules and Regulations [59141. - 59142.]
The director may establish such general rules and regulations for uniform application to all marketing orders and marketing agreements which are issued pursuant to this chapter as may be necessary to facilitate the administration and enforcement of such marketing orders and agreements.
The provisions of Article 16 (commencing with Section 59111) of this chapter relative to posting and time of taking effect are applicable to any general rule and regulation which is established pursuant to this article and applicable to marketing orders generally. Such notice shall be mailed to the advisory board for each marketing order or marketing agreement which is in active operation.
ARTICLE 18. Administrative Rules and Regulations [59161. - 59163.]
Upon recommendation of the advisory board which is concerned, the director may, without prior notice and hearing, establish administrative rules and regulations for each marketing order or marketing agreement which is issued and made effective as may be necessary to facilitate the administration and enforcement of each such order or agreement.
Such rules and regulations may include, but shall not be limited to, any of the following:
Methods and procedures for the purpose of explaining or clarifying the provisions of such marketing order or agreement.
Prescribing reporting forms and procedures to be followed by producers and handlers that are directly affected by such marketing order or agreement.
Providing information to producers and handlers that are subject to such marketing order or agreement.
Other similar procedural and explanatory provisions to enable such producers and handlers better to understand the program and their respective obligations under it and thereby assist in obtaining cooperation and compliance.
The provisions of Article 16 (commencing with Section 59111) of this chapter relative to posting, mailing of notice, and time of taking effect are applicable to any such administrative rules and regulations.
ARTICLE 19. Seasonal Marketing Regulations [59171. - 59176.]
Upon recommendation of the advisory board which is concerned, the director may, without prior notice to, and public hearing for, the producers or handlers of the commodity which is directly affected, issue and make effective seasonal marketing regulations or modifications of such regulations if all of the following requirements are complied with:
The marketing order, or agreement concerned provides for the issuance or modification of such seasonal marketing regulations without requiring such prior notice and public hearing and sets forth the limits within which such seasonal marketing regulations may be made effective or subsequently modified by the director.
The director finds that such seasonal marketing regulations or modifications of them are reasonable and proper and a practical means of carrying out the marketing provisions which are authorized in such marketing order or agreement and will tend to effectuate the declared purposes and policies of the chapter with respect to such commodity.
Seasonal marketing regulations shall be applicable to a particular marketing order or agreement for the purpose of carrying into effect by administrative order, the marketing regulatory authorizations and provisions of such marketing order or agreement as such authorizations or provisions may be applicable to, or required by, changing economic or marketing conditions and requirements, from time to time, during each marketing season in which such marketing order or agreement may operate.
Seasonal marketing regulations shall not extend beyond the marketing regulatory authorizations which are specified in the marketing order or agreement concerned, or modify or change the language of such marketing order or marketing agreement by adding to, or subtracting from, such marketing order or agreement any of the marketing regulatory authorizations which are classed in Article 13 (commencing with Section 59021) of this chapter as major amendments, or modify the language of any marketing order or agreement for the purpose of clarification as provided in Article 14 (commencing with Section 59051) of this chapter for minor amendments.
Notice of the issuance and the effective date of any such seasonal marketing regulations, or modifications of them, shall be given by the director to all producers and handlers that are directly affected by any such regulations in the manner and within the time which is specified in the applicable marketing order or agreement, or as specified in the administrative rules and regulations which are made effective for such marketing order or agreement pursuant to Article 18 (commencing with Section 59161) of this article.
It is recognized that, with respect to some commodities, marketing, weather, and other conditions may change so rapidly as to require changes in seasonal marketing regulations from week to week or oftener.
It is intended that the provisions of this article be interpreted liberally so that the director may carry out the marketing regulations and procedures authorized in this article in a practical and effective manner.
ARTICLE 20. Records [59201. - 59204.]
The director may require any and all processors or distributors, that are subject to the provisions of any marketing order which is issued pursuant to this chapter, to maintain books and records which reflect their operations under such marketing order, and to furnish him with such information as may be from time to time requested by him which relates to operations under such marketing order, and to permit the inspection by the director of such portions of such books and records as relate to operations under such marketing order.
Information which is obtained by any person pursuant to this article is confidential and shall not be disclosed to any other person except to a person with like right to obtain the information, or any attorney who is employed to give legal advice upon it, or by court order.
For the purpose of carrying out the purposes of this article, the director may hold hearings, take testimony, administer oaths, subpoena witnesses, and issue subpoenas for the production of books, records, or documents of any kind.
A person shall not be excused from attending and testifying, or from producing documentary evidence, before the director in obedience to the subpoena of the director on the ground, or for the reason, that the testimony or evidence, documentary, or otherwise, which is required of him may tend to incriminate him or subject him to a penalty or forfeiture. A natural person shall not, however, be prosecuted or subjected to any penalty or forfeiture for, or on account of, any transaction, matter, or thing concerning which he may be so required to testify, or produce evidence, documentary or otherwise, before the director in obedience to a subpoena which is issued by him.
A natural person so testifying is not, however, exempt from prosecution and punishment for perjury committed in so testifying.
ARTICLE 21. Actions and Penalties [59231. - 59252.]
Any action for any penalty or other remedy which is prescribed under any provision of this chapter shall be commenced within three years from the date of the alleged violation.
The penalties, remedies, procedures, and actions which are prescribed by this article apply in instances of any violation or complaint of any violation of any provision of this chapter, any marketing order, or any regulation, or rule and regulation, which is issued by the director pursuant to this chapter or pursuant to any marketing order which is issued under this chapter.
Every person that violates any provision of this chapter or any provision of any marketing order which is duly issued by the director pursuant to this chapter, is guilty of a misdemeanor, and upon conviction, shall be punished by a fine of not less than one hundred dollars ($100), nor more than one thousand dollars ($1,000), or by imprisonment of not less than 10 days nor more than six months, or by both such fine and imprisonment. Each violation during any day constitutes a separate offense.
Any person that violates this chapter or any marketing order which is duly issued by the director and in effect pursuant to this chapter, or violates any rule or regulation which is issued by the director pursuant to this chapter or the marketing order, is liable civilly in an amount of not more than two thousand five hundred dollars ($2,500) for each and every violation. Each violation during any day is a separate offense.
When the director makes a determination that a marketing program assessment payment due pursuant to this chapter is deficient as to the payment due, the director may determine the amount of the deficiency, including any applicable penalty, as provided in this section. After giving notice that a deficiency determination is proposed and an opportunity to file a report or provide supplemental information is provided, the director may make one or more deficiency determinations of the amount due for any reporting period based on information in the director’s possession. When a business is discontinued, a deficiency determination may be made at any time thereafter as to liability arising out of the operation of that business.
The director shall give notice of the proposed deficiency determination and the notice of deficiency determination by placing the notice thereof in a sealed envelope with postage paid addressed to the person affected as it appears in the records of the marketing order or as otherwise available to the director. The giving of notice is complete at the time of deposit in the United States mail. In lieu of mailing, a notice may be served personally by delivering it to the person to be served.
Except in the case of fraud or failure to file a required return, a notice of a deficiency determination shall be given within four years of the accrual of the deficiency.
The person against whom a deficiency determination is made may petition the director for redetermination within 30 days after the serving of the notice of deficiency determination. If a petition is not filed within 30 days, the deficiency determination shall become final.
A petition for redetermination shall be in writing, state the specific grounds upon which it is based, and be supported by applicable records and declarations under penalty of perjury that the information supporting the petition is accurate and complete. If a petition for redetermination is duly filed, the director shall reconsider the deficiency determination and may grant a hearing thereon. The director shall, as soon as practicable, make an order on redetermination, which shall become final 30 days after service of notice of the order of redetermination upon the petitioner. The notice of the order shall be served in the same manner as the notice of the original deficiency determination.
If any amount required to be paid pursuant to a deficiency determination or redetermination is not paid within the time specified in the notice thereof, the director may, within four years thereafter, file in the Superior Court for the County of Sacramento, or the superior court of any other county, a certificate specifying the amount required to be paid, the name and address of the person liable as it appears on the records of the director, and a request that judgment be entered against the person in that amount 30 days after the filing. Notice of the filing shall be given in the same manner as for the notice of deficiency determination. The court shall enter a judgment in conformance with the director’s certificate 30 days after its filing, unless a petition for judicial review has been filed within the 30-day period.
An abstract of the judgment, or a copy thereof, may be filed with the county recorder of any county. From the time of filing of the judgment, the amount of the judgment constitutes a lien upon all of the property in the county owned by the judgment debtor. The lien has the force, effect, and priority of a judgment lien and shall continue for 10 years from the date of the judgment, unless sooner released or otherwise discharged. The lien imposed by this section is not valid insofar as personal property is concerned against a purchaser for value without actual knowledge of the lien.
Execution shall issue upon the judgment upon request of the director in the same manner as execution may issue upon other judgments, and sales shall be held under execution as prescribed in the Code of Civil Procedure.
The person named in a notice of deficiency determination or redetermination may, within 30 days of the notice of filing with the superior court, file an action for judicial review thereof, as provided in subdivision (c), in the Superior Court for the County of Sacramento or, with the director’s consent, the superior court of any other county where the Attorney General maintains an office. As a condition of staying entry of judgment or granting other relief, the court shall require the filing of a corporate surety bond with the director in the amount of the deficiency stated in the certificate. In any court proceeding, the certificate of the director determining the deficiency shall be prima facie evidence of the fee and the amount due and unpaid.
The provisions of this section are supplemental to any other procedures for collection and imposition of fees and penalties provided by this chapter.
In lieu of proceeding pursuant to this section, the director may file a complaint for collection of unpaid assessments as provided by law.
In addition to such civil penalty, any person that knowingly exceeds any quota or allotment or marketable percentage fixed for him under any marketing order, regulation, or rule and regulation, issued by the director pursuant to such marketing order, shall forfeit to this state a sum equal to the current market value of such excess (or three times such amount, in the discretion of the court) which forfeiture may be recoverable in a civil suit which is brought in the name of this state. Any money which is recovered pursuant to this section shall be deposited in accordance with Section 58937.
If the use by a producer or handler of a particular emblem, label, certificate, or other distinctive designation of grade, quality, or condition, except the grade or other quality designations then in effect pursuant to state or federal grade standards, is made contingent upon compliance with certain production or handling regulations which are authorized by the provisions of a marketing order or agreement which is issued and made effective pursuant to this chapter, it is unlawful and a violation of this chapter for any person, that is not participating in, and complying with, such order, agreement, or regulations to use such designation of grade, quality, or condition.
It is a violation of this chapter for any person to willfully render or furnish a false or fraudulent report, statement, or record which is required by the director pursuant to any provision of this chapter, or any marketing order which is effective pursuant to this chapter.
It is a violation of this chapter for any person that is engaged in the handling or processing of any commodity, or in the wholesale or retail trade of the commodity, to fail or refuse to furnish to the director or his duly authorized agents, upon request, information concerning the name and address of the persons from whom he has received any commodity which is regulated by a marketing order that is issued and in effect pursuant to this chapter, and the quantity of such commodity which is so received.
It is a violation of this chapter for any handler to receive, handle, or have in his possession any commodity which is regulated by a marketing order or marketing agreement which is issued pursuant to this chapter, that the handler knows is being marketed by the producer of the commodity without complying with, or in violation of any provision of such marketing order or agreement.
The director on his own motion may, or shall upon complaint of any interested party which charges any violation of any provision of this chapter or any provision of any marketing order, regulation, or rule and regulation, which is issued by the director and effective pursuant to this chapter, do one of the following:
Refer the matter directly to the Attorney General or any district attorney for the institution of legal proceedings upon the matter.
If he deems it necessary or advisable, immediately call an administrative hearing to consider the charges which are set forth in such verified complaint.
If the matter is referred directly by the director to the Attorney General or any district attorney, such officer shall thereupon bring an appropriate action in a court of competent jurisdiction in this state, if, after examination of the complaint and evidence he believes that a violation has occurred.
If an administrative hearing is called by the director, the director shall cause a copy of such complaint, together with a notice of the time and place of hearing of such complaint, to be served personally or by mail upon every person that is named as a respondent in such verified complaint. Such service shall be made at least 10 days before the hearing.
The hearing shall be held at one of the following places which is selected by the director:
The city or place in which the principal place of business of the respondent is situated.
The city or place in which the violation complained of is alleged to have occurred.
In the nearest office of the department.
At the time and place which is designated for such administrative hearing, the director shall hear the parties to the complaint and shall enter in his office at Sacramento, his findings which are based upon the facts that are established at such hearing. If from the testimony and evidence which is adduced at the administrative hearing the director finds that no violation has occurred, he shall forthwith dismiss such complaint and notify the parties to such complaint.
If the director finds from the administrative hearing that a violation has occurred, he shall so enter his findings and notify the parties to such complaint. The director may refer the matter to the Attorney General for the institution of legal proceedings or he may notify such parties to cease and desist from further violation.
Upon their refusal or failure to comply, or if he finds that the facts or circumstances warrant immediate prosecution, he shall file a complaint with the Attorney General or any district attorney which requests that such officer commence any action which is authorized in this chapter against such respondent in a court of competent jurisdiction as set forth in this article.
The Attorney General, or any district attorney, shall upon complaint by the director or any other person, or may, upon his own initiative, if, after examination of the complaint and evidence he believes a violation has occurred, bring an action for criminal penalties in the name of the people of this state in any court of competent jurisdiction in this state against any person violating any provision of this chapter or any marketing order which is duly issued by the director and effective pursuant to this chapter.
The Attorney General shall upon complaint by the director or may, upon his own initiative, if, after examination of the complaint and evidence he believes a violation to have occurred, bring an action in the name of the people of this state in the superior court of this state for civil penalties or for injunctive relief, including specific performance of any obligation which is imposed by any marketing order, regulation, or rule and regulation, which is issued pursuant to this chapter, against any person violating any provision of this chapter or of any marketing order, regulation, or rule and regulation, which is duly issued by the director pursuant to this chapter.
If it appears to the court upon any application for a temporary restraining order, or upon the hearing of any order to show cause why a preliminary injunction should not be issued, or upon the hearing of any motion for a preliminary injunction, or if the court shall find, in any such action, that any defendant is violating, or has violated, any provision of this chapter, any marketing order, or any regulation, or rule and regulation, duly issued by the director pursuant to this chapter, the court shall enjoin the defendant from committing further violations, and may compel specific performance of any obligation imposed by a marketing order, or any regulation which is issued by the director pursuant to this chapter.
In any suit brought by the Attorney General to enforce any provision of this chapter, any marketing order which is issued by the director and effective pursuant to this chapter, or any regulation, or rule and regulation, which is issued by the director pursuant to the provisions of any marketing order, the judgment, if in favor of the state, shall provide that the defendant pay to the director the costs which were incurred by the director and by the advisory board concerned with the administration of such marketing order in the prosecution of such action. Any money which is recovered shall be deposited in accordance with Section 58937.
Any such action may be commenced either in the county where defendant resides, or where any act or omission, or part of the act or omission, which is complained of occurred.
The penalties and remedies which are prescribed in this article with respect to any violation mentioned in this article are concurrent and alternative, and neither singly nor combined are exclusive, and either singly or combined are cumulative with any and all other civil, criminal, or administrative rights, remedies, forfeitures, or penalties which are provided or allowed by law with respect to any such violation.
In lieu of other procedures which are provided in this article, the director may, if he finds that any person has exceeded any quota, allotment, or marketable percentage which is fixed for him pursuant to any marketing order issued by the director pursuant to this chapter, and if the director further finds that such person did not intend to violate such quota, allotment, or marketable percentage, make demand on such person to pay to the director an amount equal to the market value of the quantity marketed in excess of such quota, allotment, or percentage.
Such market value shall be only the cost of acquisition to the person that is concerned and does not include the value of services or commodities which are added subsequent to acquisition. Payment of such amount shall preclude any further enforcement action in connection with such transaction. If such person refuses to pay, or fails to pay, the amount which is demanded, the director shall thereupon proceed in accordance with the other provisions of this article. Any money which is recovered pursuant to this section shall be deposited in accordance with Section 58937.
ARTICLE 22. Inspection and Abatement [59281. - 59293.]
This article applies to any lot of any commodity which is regulated by a marketing order or marketing agreement wherever, or in whose possession, such lot may be in the marketing channels within this state.
Any authorized inspector, or other authorized person, who is discharging his duties in the checking of compliance with the provisions of any marketing order which is made effective pursuant to this chapter may enter and inspect any premises, enclosure, building, or conveyance where he has reason to believe any commodity which is subject to a marketing order is produced, stored, being prepared for market, or marketed, and inspect, or cause to be inspected, such representative samples of the commodity as may be necessary to determine whether or not any lot of such commodity is in compliance with applicable regulations, or rules and regulations, of any marketing order which is made effective pursuant to any provision of this chapter.
Except as otherwise provided in this article, any authorized inspector, or other authorized person, in the discharge of his duties, if he has reason to believe that a lot of any commodity subject to a marketing order or marketing agreement which is issued pursuant to this chapter is not in compliance with the requirements of such marketing order or agreement, or of marketing regulations, or rules and regulations, which are issued pursuant to it, as to quality, condition, size, maturity, pack, labeling, or markings, may hold such lot for a reasonable period of time sufficient to enable such officer to ascertain by an authorized inspection whether such lot complies with such marketing requirements, but in any event not to exceed 24 hours in the case of perishables, or 72 hours in the case of nonperishables.
Following inspection, such inspector or other authorized person may affix to any lot which is determined to be in noncompliance, an official notice, warning tag, or other appropriate marking which warns that the lot is held and states the reasons why it is held. It is unlawful for any person, except an authorized inspector or enforcing officer, to detach, alter, deface, or destroy any such official notice, warning tag, or marking so affixed to any such lot, or to remove or dispose of such lot in any manner or under conditions other than as prescribed in such notice of noncompliance except upon written permission of an authorized enforcing officer or by order of a court of competent jurisdiction.
The director, or the authorized person by whom such lot is being held, shall serve the person in possession of the lot with a notice of noncompliance. Such notice shall be served in person or by mail to the last known address of such person that is in possession. The person in possession shall notify the owner of the lot, or every other person that has an interest in it, of the serving of such notice of noncompliance.
The notice of noncompliance shall include all of the following:
A description of the lot.
The place where, and the reasons for which, the lot is held.
A citation of the applicable marketing order or agreement or marketing regulation, or rule and regulation, and any section of it upon which the notice of noncompliance is based.
The owner of the lot shall have, in the case of a perishable commodity not to exceed 48 hours, and in the case of a nonperishable commodity not to exceed 72 hours, from the time of serving such notice of noncompliance for reconditioning or for the correction of the deficiencies which are noted in the notice of noncompliance. If such lot is reconditioned or the deficiencies are corrected the enforcing officer shall remove the warning tags or markings and release the lot for marketing or may, with the consent of the owner of such lot, divert the lot to other lawful uses or destroy it.
If the owner of the lot fails or refuses to give such consent, or if the lot has not been reconditioned or the deficiencies otherwise corrected so as to bring it into compliance within the time which is specified in the notice, the enforcing officer shall proceed as provided in Section 59289.
The enforcing officer may file a verified petition in superior court requesting permission to divert the lot to any other available lawful use or to destroy the lot. The verified petition shall show all of the following:
The condition of the lot.
That the lot is situated within the territorial jurisdiction of the court in which the petition is being filed.
That the lot is held, and that the notice of noncompliance has been served as provided in Section 59285.
That the lot has not been reconditioned as required.
The name and address of the owner and the person in possession of the lot.
That the owner has refused permission to divert or to destroy the lot.
A proceeding under this section is a limited civil case if the value of the property in controversy is less than or equal to the maximum amount in controversy for a limited civil case under Section 85 of the Code of Civil Procedure.
Upon the filing of the verified petition, the court may issue an order to show cause returnable in five days after service upon the owner why the lot shall not be reconditioned or the deficiencies corrected, or why the lot shall not be diverted to other lawful uses or destroyed.
The owner of the lot may, prior to the date when the order to show cause is returnable, either recondition or correct the deficiencies in the lot so as to bring it into compliance, or may file at or before the hearing on the order an answer with the court stating why the lot should not be reconditioned or the deficiencies corrected so as to bring it into compliance, or showing why it should not be diverted to other lawful uses or destroyed.
If at the expiration of the five-day period the owner of the lot has failed or refused to recondition or to correct the deficiencies so as to bring the lot into compliance, the court may enter judgment ordering that the lot be reconditioned, diverted to any other lawful use, destroyed in the manner which is directed by the court, relabeled, denatured or otherwise processed, sold, or released upon such conditions as the court in its discretion may impose. The lot may not, however, be sold or released into the regular channels of trade.
In the event of sale of any lot by order of court, the costs of storage, handling, and reconditioning or disposal shall be deducted from the proceeds of sale and the balance, if any, paid into court for the account of the owner of any such lot.
Disposal of any lot or portion of any lot pursuant to the provisions of this article, whether such disposal be by arrangement with an enforcement officer or by court order, does not waive any of the penalty provisions of this chapter.
CHAPTER 2. The Agricultural Producers Marketing Law [59501. - 60016.]
ARTICLE 1. Short Title and Definitions [59501. - 59514.]
This chapter shall be known as the Agricultural Producers Marketing Law.
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Commodity” means any horticultural, viticultural, or vegetable product of the soil, aquacultural, livestock and livestock products, and poultry and poultry products. It does not, however, include milk or milk products.
“Dealer” means any distributor or retailer.
“Distributor” means any person, except a retailer, that acquires and distributes any commodity at wholesale or retail.
“Handler” means any person that receives any commodity from the producer for the purpose of marketing it.
“Marketing program” means any program which contains provisions which are authorized by Article 8 (commencing with Section 59801) of this chapter.
“Primary channel of trade” means that transaction in which the producer or a cooperative marketing association of producers transfers physical possession of the commodity to another person in the current of commercial trade.
“Producer” means any person that is engaged in the business of growing or producing any commodity for commercial use.
“Processor” means any person that buys, or otherwise takes title to or possession of, any commodity for the purpose of processing or manufacturing it or selling, reselling, or redelivering it in dried, canned, extracted, fermented, distilled, or other preserved form. It also includes all of the following:
Any person or exchange that conducts such business.
Any person or exchange that buys any commodity from the producer of the commodity for the purpose of reselling it to any person or exchange that conducts such business.
“Proration” means the application of allocated quantities or percentages under a uniform rule to the production, or merchantable production, of all producers that are affected, for the purpose of regulating the quantity of any commodity which may be harvested, prepared for market, or marketed in primary channels of trade during any specified period.
“Proration zone” means any district for which a marketing program is proposed or has been instituted.
“Retailer” means any person that is engaged in the business of making retail sales direct to the general public.
ARTICLE 2. General Provisions [59541. - 59546.]
The Legislature declares that: The disorderly marketing of commodities in this state; the improper preparation for market; the lack of uniform grade specifications or uniform inspection of commodities; the marketing of commodities in excess of reasonable or normal market demands therefor; or the inability of individual producers to expand existing markets or to develop new or larger markets for California grown commodities tends to prevent agricultural producers from maintaining a proper standard of living or from contributing their fair share to the support of necessary governmental and educational functions and thereby tends to increase unfairly the tax burden of other citizens of this state.
The conditions set forth in Section 59541 vitally concern the health, peace, safety and general welfare of the people of this state. It is declared to be the policy of this state to aid agricultural producers in preventing or correcting adverse marketing conditions, improving existing marketing conditions, expanding existing markets, promoting new or broader markets, developing more orderly or efficient or equitable methods in the marketing of commodities and thereby to aid agricultural producers to achieve and maintain a purchasing power at an equitable and reasonable level.
The production and marketing of commodities by producers within this state is declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
Any order of the director which makes effective a marketing program, and any other order of the director which substantially affects the rights of any interested party, may be reviewed by any court of competent jurisdiction. Any such action shall be commenced withn 30 days after the effective date of the order which is complained of.
If producers of any commodity which is regulated by a marketing program that is issued by the director pursuant to the provisions of this chapter are required to comply with minimum quality, condition, size, or maturity regulations, no person may, except as otherwise provided in such program, process, distribute, or otherwise handle any of such commodity from any source, whether produced within or without this state, which commodity does not meet such minimum requirements which are applicable to producers of the commodity in this state.
Such regulations do not, however, apply to any commodity which has been produced outside of this state and is in transit on the effective date of the regulations.
ARTICLE 3. Exceptions [59571. - 59572.]
By reason of the climatic and other conditions which relate to the production and marketing of figs for canning purposes, no marketing program pursuant to this chapter shall be established for figs for canning purposes.
By reason of the climatic conditions and other factors which relate to the production of grapes in such counties, no marketing program shall be applicable to grapes in Sonoma, Napa, Mendocino, Lake, Santa Clara, Santa Cruz, Alameda, San Benito, Solano, San Luis Obispo, Contra Costa, Monterey, and Marin Counties, or any of them.
ARTICLE 4. Administration [59607. - 59619.]
The director may appoint an attorney and shall provide for such other personnel as may be necessary and shall prescribe their duties.
The director may conduct hearings and investigations to carry out the intent and purposes of this chapter.
In the conduct of any hearing, inquiry, or investigation, the director may administer oaths, and issue subpoenas for the attendance of witnesses and the production of papers, books, maps, accounts, documents, and testimony in any inquiry, investigation, or hearing which is ordered or undertaken in any part of the state.
The superior court of the county in which any inquiry, investigation, or hearing is held may compel the attendance of witnesses and require the disclosure by the witnesses of all facts known to them, relative to the matters under investigation, and the production of papers, maps, books, accounts, documents, and testimony as required by any subpoenas issued by the director.
Any party that disobeys any order or subpoena which is issued pursuant to the authority of the director is guilty of contempt and shall be certified to the superior court of the county in which the contempt occurs, which court shall punish the contempt.
The director through his duly authorized representatives and agents, including any proration zone agent who is in charge of a marketing program, shall have access, solely for the purposes of investigating possible violations of any marketing program, to the records of every producer, dealer, distributor, public or private property transporatation agency, and handler of a commodity as to which a marketing program has been instituted. He shall have at all times free and unimpeded access to any building, yard, warehouse, store, or transportation facility or other place in which any commodity under a marketing program is kept, stored, handled, or transported. All information which is obtained is confidential and shall not be disclosed unless required in a judicial proceeding.
In carrying out his duties under this chapter, the director may utilize the facilities and personnel of the state and county departments of agriculture.
A full and accurate record of business or acts which are performed, or of testimony which is taken pursuant to the provisions of this chapter, shall be kept and be placed on file in the office of the director.
The director may purchase general liability insurance for all marketing programs subject to the provisions of this chapter in an amount he or she determines as necessary. The cost of the insurance shall be paid by the affected marketing programs on a pro rata basis. The insurance policy shall name the director, in his or her official capacity, and all persons, collectively, that are subject to the marketing program as insured parties for claims made against the marketing program in its advisory capacity to the director or against the director regarding the activities of the marketing program. The director, after consultation with the Attorney General, may refer claims to the insurance carrier for appropriate action. In the alternative, the director may require that claims be handled in the manner otherwise specified in this chapter.
ARTICLE 5. Establishment of Proration Zone [59641. - 59662.]
Ten or more producers of the variety or kind of commodity which is to be affected may file with the director a petition for the establishment of a proration zone and the institution of a marketing program.
The petition shall, among other things, contain or be accompanied by all of the following:
A description of the district which comprises the proration zone upon which the proposed marketing program is to be based.
A general statement of facts which sets forth the necessity for instituting a marketing program.
A draft of a proposed marketing program, or a statement of the principal features which are to be included in the proposed marketing program.
Except as otherwise provided in Section 59654, if, after receiving a petition for the establishment of a proration zone and a proposed marketing program for it, the director determines that such proposed proration zone and proposed marketing program are consistent with the provisions of this chapter, the director shall hold a public hearing at some central point which is located within the area described in the petition and proposed to be established as a proration zone.
If the director determines that the proposed proration zone or proposed marketing program is not consistent with the provisions of this chapter, no hearing need be held.
Prior to holding a public hearing upon a proposed proration zone and a proposed marketing program, the director:
May require the petitioners to file with the department a good and sufficient undertaking to cover the probable cost of conducting the hearing and instituting a marketing program.
Shall establish a list of producers of the commodity which is affected within the area which comprises the proposed proration zone.
In establishing the list of producers, the director may issue a notice to handlers which requires them to file with the director a certified report that shows all of the following:
The name and mailing address of the handler.
The quantities of the commodity that is to be affected, which were handled by the handler in the marketing season next preceding the filing of the report, together with a reasonable determination of the quantity so handled which was produced within the proposed boundaries of the proration zone.
The correct name and mailing address of each producer, whose producing operations are located within the proposed proration zone, from whom the handler received the commodity which is to be affected, during the next preceding season.
The quantities of the commodity which were received by the handler from each such producer in the marketing season next preceding the filing of the report.
The notice to handlers which requires them to file the lists shall be published by the director pursuant to Section 6062 of the Government Code in the capital of the state and in such other localities as the director may require, and shall be mailed to all handlers of the commodity that are directly affected, of record with the department. The lists of producers shall be filed by handlers within 10 days from the last date of publication of the notice.
In addition, the director may obtain lists of producers that are affected, whenever and in such manner as he may deem necessary or advisable for the purpose of checking, comparing, or correcting such lists. The director shall maintain a current list of producers which is based upon the records of operations under each marketing program. Such producer list shall, subject to any proper corrections, be final and conclusive in making determinations relative to the assent by producers upon a marketing program.
Any producer that produces the commodity which is affected by any proposed or existing marketing program, whose name does not appear upon the director’s list of producers affected, may have his name established upon such list by filing with the director a signed statement which states that he produced such commodity in the next preceding season and gives the quantity which was produced and the quantity which was delivered into primary channels of trade in such season.
Notice of the public hearing shall be mailed to a list of producers within the proposed zone at least 10 days prior to such hearing. The list of producers shall be established in accordance with the provisions of Sections 59646, 59647, 59648, and 59649. A notice of such public hearing shall also be given at least 10 days prior to such hearing by publication pursuant to Section 6061 of the Government Code in the area proposed as the proration zone. If the proposed proration zone includes areas that are noncontiguous, the director shall hold a hearing in each.
At the public hearing, the director shall receive evidence offered by the petitioners in support of the proposed proration zone and the proposed marketing program and evidence from any interested person in support of, or in opposition to, them. All testimony at the hearings shall be under oath.
The hearings may be adjourned from time to time and from place to place as the circumstances may require. For the purpose of procuring additional evidence, facts, and data, petitioners or opponents shall, upon proper motion, be granted a continuation of any hearing by the director for a period not exceeding five days. A transcript of the proceedings at all such hearings shall be made by the director and shall be open to inspection by any interested party.
All evidence and exhibits and all facts and data which are used directly or indirectly by the director, or introduced at a hearing shall, within a reasonable time after being used or introduced, be available at the office of the director to all interested parties.
The director may decline to hold a public hearing upon a proposed proration zone and a proposed marketing program if he determines and is satisfied that a public hearing cannot be held within a reasonable time in advance of the harvesting of, or the beginning of the marketing season for, the commodity, so as to permit the formulation and establishment of an equitable and effective marketing program for the marketing season.
Before issuing a marketing program for the written assent of producers, which contains provisions for correlating the supply of the commodity which is affected with market demands for it by means of restrictions upon the total quantity of the commodity, or restrictions upon the total quantity of any grade, size, quality, or condition of it, which restrictions have the effect of limiting the total quantity of the commodity which may be marketed during any marketing season and which restricted portion of the commodity might otherwise be marketed by producers in compliance with other laws of this state or of the United States, or in compliance with established commercial practice during the marketing season, the director shall make all of the following findings with respect to the marketing program:
The marketing program will tend to reestablish or maintain such level of prices for the commodity as will provide a purchasing power for the commodity which is adequate to maintain in the business of producing the commodity such number of producers as is required to provide such supply of the quantities and qualities of the commodity as is necessary to fulfill the normal requirements of consumers.
The marketing program will tend to approach such equality of purchasing power at as rapid a rate as is feasible in view of the market demand for the commodity.
The marketing program conforms with the provisions of this chapter and will tend to effectuate the declared purposes and policies of this chapter.
The marketing program will protect the interest of consumers of the commodity through the exercise of the powers of this chapter only to such an extent as is necessary to establish the level of purchasing power which is described in subdivision (a) of this section.
In making the findings which are required by Section 59655, the director shall take into consideration all facts which are available to him with respect to all of the following economic factors.
The quantity of the commodity which is available for distribution.
The quantity of the commodity which is normally entered into primary channels of trade.
The necessary costs of producing the commodity as determined by available surveys or other facts.
The purchasing power of consumers as indicated by available reports and indices.
The level of prices of other commodities which compete with, or are utilized as substitutes for, the commodity.
The level of prices of other commodities, services, and articles which producers commonly purchase.
Before issuing a marketing program for the written assent of producers, which contains provisions for the purpose of regulating the flow of the commodity, or any grade or size of it, to market without restricting the total quantity which may be marketed during the season, or which marketing program provides for the establishment of grade, size, quality, or condition specifications, for uniform grading and inspection, or for advertising and trade promotion, the director shall make all of the following findings with respect to the marketing program:
The marketing program will tend to attain the objectives which are sought by the program.
The marketing program conforms with the provisions of this chapter and will tend to effectuate the declared purposes and policies of this chapter.
The marketing program will protect the interests of consumers in that the powers of this chapter are being exercised only to the extent which is necessary to attain the objectives of the program.
In making any findings pursuant to Section 59657, the director shall base his findings upon the facts, testimony, and evidence which is received at the public hearing together with any other relevant facts which are available to him from official publications or institutions of recognized standing.
If, at a public hearing which includes a consideration of the establishment of the boundaries of a proration zone, it appears that the inclusion of territory additional to that which is described in the petition that is being heard is necessary to the proper administration or enforcement of the proposed marketing program, the director shall postpone further proceedings until notice has been given by the director to the producers within the additional territory in the manner which is provided for in Sections 59643, 59644, 59650, 59652, 59653, and 59654. Thereafter, the director may conclude the hearing, and prepare his findings.
Each proration zone is a separate public corporate entity.
ARTICLE 6. Change of Proration Zone Boundaries [59691. - 59694.]
Any area within the state which is not already included in a proration zone that produces the same kind or variety of a commodity as is produced in a proration zone which is already established pursuant to this chapter, and regulated by a marketing program, may be added or annexed to the established proration zone pursuant to this article.
A petition to change the boundaries of any proration zone may be filed with the director by producers that produce not less than 10 percent of the production of the commodity which is affected that is produced within the boundaries of the proration zone which is established, or within the boundaries of the area which is proposed to be added. The petition may request that the existing marketing program or a proposed marketing program, as amended, be made applicable to the entire area which is included within the proposed changed boundaries of the proration zone. Upon the receipt of such a petition, the director shall hold a public hearing, as provided in Article 5 (commencing with Section 59641) of this chapter, and receive evidence as to whether or not the boundaries of the proration zone as established shall be changed as recommended.
The director shall also, at the hearing, receive evidence with respect to the marketing program which is to be applicable to all of the area within the proposed changed boundaries of the proration zone.
After the hearing, findings shall be made and procedures followed which are in accordance with the applicable provisions of Article 5 (commencing with Section 59641) of this chapter. If the findings are positive, a marketing program is issued, and a proration zone with new boundaries is established, the marketing program shall be submitted to producers within the zone for their written assent as prescribed by the applicable provisions and procedures of Article 9 (commencing with Section 59851) of this chapter.
If the marketing program which is submitted is not assented to by producers in sufficient number and by sufficient volume to meet the requirements of Article 9 (commencing with Section 59851) of this chapter, the director shall dismiss the proceedings which were instituted to change or annex the boundaries of the proration zone, and the marketing program in operation at the time the proceedings were instituted shall continue to be effective within the boundaries of the proration zone as constituted prior to the proceedings. The marketing program has the same force and effect as though no proceedings had been instituted pursuant to this article.
ARTICLE 7. Marketing Program and Grading Committees [59721. - 59738.]
The affairs of each proration zone shall be managed by a marketing program committee which is appointed in accordance with this chapter. The director shall appoint the initial marketing program committee from nominations which are received at the public hearing upon the proposed program. The term of office of the initial marketing program committee shall be for one marketing season. The term of office of subsequent marketing program committees for each marketing program shall be two years or until their successors have been appointed and have qualified. The beginning date of the term of office shall be set forth in the marketing program.
For terms subsequent to the term of the initial committee, members and their respective alternates shall be selected and appointed in accordance with the following procedure: The director shall divide the proration zone into as many districts as may be necessary for the proper administration of the program, and allot to each district the proper number of producers to be appointed to serve as members and alternate members upon a marketing program committee so as to give as nearly as possible adequate representation to all producers in all such districts. Members and their respective alternate members shall be appointed by the director from lists of producers that are eligible to serve on the marketing program committee. In addition, the director may appoint one public member on each such marketing program committee.
Upon the director’s request, the committee shall submit to the director the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, or processor nor financially interested in any producer, shipper, or processor, for appointment by the director as a public member of the committee. The director may appoint one of the nominees as the public member on the committee. If all nominees are unsatisfactory to the director, the committee shall continue to submit lists of nominees until the director has made a selection. Any vacancy in the office of the public member of the committee shall be filled by appointment by the director from the nominee or nominees similarly qualified submitted by the committee. The public member of the committee shall represent the interests of the general public in all matters coming before the committee and shall have the same voting and other rights and immunities as other members of the committee.
Eligible lists shall be established by the director either by means of a meeting of producers in each district, or by means of mail ballot, or by a combination of meetings and mail ballot. The method to be used shall be determined by the director, except that a mail ballot shall be granted upon a written request of 10 percent of the producers. Each producer is entitled to one vote and voting by proxy is not permitted. From nominations which are made, not less than three eligible persons shall be selected for each member of the committee. Any person that is nominated shall be a producer with producing property which is located within the district for which he is nominated.
If a corporation or a partnership is a producer, it may designate a representative who may be a nominee.
Each respective alternate shall be appointed from the same eligible list from which the member is appointed. Each district in the proration zone is entitled to at least one member and one alternate member of the committee.
The marketing program committee may at any time invite any handler or other person to its meetings to serve in an advisory capacity and may authorize, subject to the approval of the director, the payment of compensation and necessary expenses to any person that is serving in such advisory capacity at rates not to exceed those which are granted to marketing program committee members.
The director may, if requested by the producer members of the marketing program committee, appoint on the committee, in addition to the producer members, not more than three handler members and their respective alternates who are handlers of the commodity which is affected by the marketing program of the proration zone.
If grade, quality, or size regulations are authorized under any marketing program for any commodity which is used for canning, freezing, fermenting, or distilling, and the regulations are not an integral part of a proration plan for the purpose of controlling a surplus condition in the commodity, such grade, quality, or size regulations or interpretations, or modifications of them, shall be approved by a grading committee which is appointed by the director. A grading committee shall consist of the marketing program committee, or a subcommittee, of at least seven members and an equal number of processor representatives that are nominated by the industry which is engaged in the processing of the commodity that is involved. Any action of the grading committee shall be concurred in by a majority of the processor members, a majority of the producer members, and by the director.
The members and alternate members of any marketing program committee or grading committee which are duly appointed by the director, including employees of the marketing program committee, are not responsible individually in any way whatsoever to any person for liability on any contract or agreement of the committee.
Marketing program committee members are entitled to compensation at a rate not exceeding ten dollars ($10) each for each day while engaged on official business. Such compensation shall not, however, be paid for more than five days in any month unless approved by the director. The members shall be reimbursed for their necessary traveling expenses.
An alternate member of a marketing program committee shall sit as a regular member of the committee if the member for whom he is an alternate fails for any reason to attend any meeting of the committee. He shall be compensated and reimbursed for his necessary traveling expenses in the same manner and to the same extent as a regular member while so serving.
Any vacancy on the marketing program committee which is occasioned by the expiration of term of office shall be filled from eligible lists of producers selected in each district obtained as provided in Sections 59721 to 59729, inclusive. Any vacancy which is occasioned by the death or resignation of any member, or by removal for incompetence, inattention, or neglect of duties as a member of the marketing program committee, by the director, or by a member who ceases to qualify as a producer or handler of the commodity which is concerned, shall be filled from persons who remain on the eligible lists of producers from which the appointments for the current term were made, or from new lists which are obtained as provided in Sections 59721 to 59729, inclusive.
The marketing program committee shall appoint an agent, subject to the approval of the director, who shall administer the marketing program under the direction of the marketing program committee and who may be removed from office in the same manner as he was appointed. The salary or compensation of the agent shall be fixed by the marketing program committee, subject to the approval of the director.
The agent shall appoint such deputy agents and other assistants as may be necessary to direct the marketing program. Such appointments are subject to the approval of the program committee. The agents, deputy agents, and other assistants are employees of the proration zone and not of the state. An officer or employee shall not receive compensation which is based on a percentage of volume which is involved in a marketing program, or in any manner that would lend encouragement to the promotion of a marketing program for the purpose of increasing salaries and income.
The marketing program committee, with the approval of the director, may do all of the following:
Appoint subcommittees in any producing areas within the proration zone to facilitate the carrying out of the purposes of this chapter.
Collaborate and cooperate with any agency or organization with similar purposes, whether of this state, any other state, or of the United States, in the formulation and execution of any marketing program or marketing order which has common objectives. In any proper case, the director may require such collaboration and cooperation.
Cooperate with any duly constituted authority in the enforcement of other laws of this state, or of the United States, which are enacted to protect producers or the consuming public from fraud or deception.
Make contracts and agreements in the furtherance of any of the powers of the marketing program committee.
Receive, invest, and disburse funds, pursuant to the provisions of Article 12 (commencing with Section 59941).
The exercise of the powers which are granted to a marketing program committee in its administration of a marketing program which is made effective pursuant to this chapter is subject to the approval of the director.
Upon recommendation of the marketing program committee which is concerned, the director may, consistent with this chapter, establish such administrative regulations as may be necessary to facilitate the administration and enforcement of each marketing program which is promulgated pursuant to this chapter. Upon the issuance and making effective of such regulations, notice of the issuance of the regulations shall be made in the same manner as provided in Article 16 (commencing with Section 59111), Chapter 1, Part 2 of this division for marketing orders.
It is hereby declared, as a matter of legislative determination, that producers, or handlers, and processors appointed to any committees pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such committees, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 8. Marketing Programs [59801. - 59824.]
The powers which are granted to a marketing program committee by a marketing program pursuant to this article may be exercised for the purpose of minimizing the effect of any surplus or other adverse market condition.
A marketing program may authorize the marketing program committee to establish and maintain stabilization and surplus pools. The marketing of green ripe olives is not, however, subject to the provisions of any marketing program which relates to the esablishment and operation of stabilization and surplus pools.
The program committee may receive from each producer for delivery into a stabilization or surplus pool the uncertificated portions of the commodity which is regulated by the marketing program and market it by any variety, grade, or size for the account of the producers if the uncertificated portion can be disposed of advantageously either in its original or a converted state. The marketing program committee shall designate the quantity or the percentage of the marketable supply of the commodity that shall be placed in the stabilization pool and the quantity or the percentage of the marketable supply of the commodity that shall be placed in the surplus pool. Any quantity or percentage which is so established is applicable to each producer.
In operating any stabilization or surplus pool, the marketing program committee may receive and account for the commodity on the basis of variety, grade, or size classifications, and may fix servicing charges to be assessed against the total quantity of any commodity which is received into the pools.
The marketing program committee has title to all of the commodity in each of the pools and shall handle all of the commodity received into each of the pools and account for it to each producer that is beneficially interested in such commodity upon a pooled basis.
The contents of a stabilization pool may be disposed of or may be marketed, from time to time, as the marketing program committee deems advisable, consistent with the maintenance of stabilized marketing conditions.
The contents of a surplus pool shall not be marketed in any form which would directly compete with that portion of the commodity which is regularly certificated or which is in a stabilization pool. Any part of any surplus pool may, however, be transferred by a marketing program committee on a gratuitous basis to any charitable organization, self-held cooperative, or similar agency under proper safeguards to prevent any part of the commodity so disposed of from directly competing with the part of the commodity which is marketed through the usual channels of trade.
A marketing program may authorize the marketing program committee to establish and maintain diversion or substandard pools. The program committee may receive from each producer for delivery into a diversion or a substandard pool such quantity of each producer’s production or deliveries as fails to qualify for marketing or sale in regular marketing channels, under grade, quality, or size regulations which are established in the marketing program or under standardization laws or other laws of this state or of the United States.
In operating any such diversion or substandard pool, the marketing program committee may fix servicing charges to be assessed against the commodity which is received into the pool and may receive and account for the commodity on a basis of variety, grade, and size classifications. The program committee has title to all of the commodity in either of the pools and shall handle all of the commodity which is received into either of the pools and account for it to each producer that is beneficially interested in such upon a pooled basis.
The contents of any diversion or substandard pool shall be disposed of for byproducts or for other purposes under proper safeguards to prevent that part of the commodity which is so disposed of from directly competing with the part of the commodity which is marketed in its usual form through the usual channels of trade.
A marketing program may authorize the marketing program committee to create, establish, or otherwise obtain and operate any facility for the storing, financing, grading, packing, servicing, processing, preparing for market, selling, or disposal of the contents of any pools which are provided for in this article. A marketing program committee shall not, however, engage in public warehousing.
The marketing program committee may pledge all of the commodity that is in any pool which is established pursuant to any provision of this article with a bank or other lending agency for the purpose of obtaining loans upon such commodity. The marketing program committee has title to all of the commodity which is in any such pools for the purpose of financing and handling.
A marketing program may authorize the marketing program committee to create, by a uniform assessment upon producers based upon the volume of the commodity which is marketed by each, or upon some other uniform and equitable basis, maintain, and disburse an equalization fund to be used for the removal of any inequalities between producers as to the total volume which is marketed through prorated channels that result from errors in estimating production or surplus, or for indemnifying producers whose production, in whole or in part, is diverted in green form or otherwise from normal marketing outlets, or diverted to relief, byproducts, or other noncompetitive purposes pursuant to a marketing program.
No part of any funds which are raised for equalization fund purposes, as specified in Section 59813, shall be applied to the cost of maintenance of the department.
A marketing program may authorize the marketing program committee to establish, adopt, and apply methods for correlating the marketable supply of any commodity to the reasonable market demands by means of volume limitation, time limitation, diversion, or by grade, quality, or size regulations which are applicable to the total production of any commodity, or to that portion of any commodity which qualified for marketing pursuant to standards which are authorized in the marketing program, standardization laws, or other laws of this state, or of the United States.
The marketing of green ripe olives is not, however, subject to the provisions of any marketing program which limits the total quantity of such commodity which may be marketed.
A marketing program may authorize the marketing program committee to broaden distribution and increase consuming outlets by appropriate educational and trade stimulation efforts of a general industry nature and not unfairly depreciative of the quality of any other food product.
Educational and trade stimulation efforts may include all of the following:
Efforts to prevent, modify, or remove trade barriers which directly affect the commodity to which the marketing program applies.
The presentation of facts to, and negotiations with, any state, federal, or foreign governmental agency on any matter which affects the marketing of the commodity.
For the purpose of providing funds to defray the cost of formulating, administering, and enforcing educational and trade stimulation efforts, a fee or assessment shall be established and collected upon the volume of the commodity which is marketed or upon some other uniform and equitable basis.
The fee may be collected separately by the marketing program committee or may be combined with any fee which is collected for general administrative purposes, in which case the marketing program committee may recommend to the director, and the director may approve, the proportions of the combined fee which may be expended for each of such purposes.
Any educational and trade stimulation efforts which are authorized by any marketing program if approved by growers, either by written assent or by referendum ballots, for a specified period of time, but not exceeding four years, may be carried out for such period without the necessity of a biennial referendum as required in Section 59981.
A marketing program may authorize the marketing program committee to provide for the adjustment of production of any commodity by means of tree or vine pulling. The marketing program committee may receive applications from producers for acreage adjustment payments. The marketing program committee shall, upon proper review and certification, make such acreage adjustment payments on an equitable basis from funds which are collected for that purpose under the marketing program on a uniform basis from all commercial producers of the commodity within the proration zone, or from funds which are received from any federal, state, or other agency for that purpose.
A marketing program of production adjustment adopted under Section 59821 shall not authorize any payment for the removal of acreages of trees or vines of any species or variety specified in the marketing program which have, during the three years immediately preceding the date of application, produced an annual yield per acre in excess of the comparably computed average yield from bearing trees or vines of the same species or variety for the state as a whole. Such yields and averages shall be determined by the director from statistical data which is compiled by any state or federal agency or such other data as the director deems to be representative and reliable.
If the marketing program committee finds that the results of research would be advantageous in the administration of a marketing program, it may, subject to the approval of the director, authorize and arrange for research to be conducted. The cost of the research shall be considered a part of the cost of the administration of that portion of the marketing program for which the research is authorized.
In any such research, the Dean of the College of Agriculture of the University of California and the program committee shall cooperate in selecting the research projects to be carried on from time to time. Insofar as practicable, the projects shall be carried out by the College of Agriculture, but if the dean of the college and the marketing program committee determine that the college has no facilities for a particular project or that some other research agency has better facilities for it, the project may be carried out by any other research agency which is selected by the dean and the marketing program committee.
ARTICLE 9. Assents to Marketing Programs [59851. - 59857.]
Upon the issuance of a marketing program for the written assent of producers, the director shall submit a copy of the marketing program in full to each of the producers of the commodity which is to be affected, or their duly authorized agent, within the proposed proration zone as shown by the lists of producers which are compiled in accordance with this chapter, accompanied by a printed, typewritten, or mimeographed form upon which the producer can record his assent to the marketing program.
A nonprofit cooperative association may assent on behalf of any of its members only if it is authorized so to do by an instrument in writing which is signed by the member.
Such authority may be revoked as to him by any such member by an instrument in writing which is filed with the director and with such association. The revocation shall become effective three days after its receipt by the director. A copy of any written authorization, or any revocation of such authority, of a producer to the nonprofit cooperative association of which he is a member shall be forwarded to the director by the association.
The director may at the time of mailing to producers a marketing program or amendments to it for written assent, establish a closing date after which assents will not be counted. If he does so, the closing date upon which assents are required to be postmarked in order to be counted shall be shown on the assent form and be announced by a press release for general dissemination which is issued by the director.
If the closing date is not established at the time assent forms are mailed to producers, and the director subsequently finds that because of the oncoming harvesting season or because of any other relevant reason it is desirable to fix a closing date for filing assents, he may do so by publishing a notice pursuant to Section 6061 of the Government Code in the capital of the state and in such other localities as the director may prescribe not less than 10 days prior to the closing date. The closing date shall also be announced by a press release for general dissemination which is issued by the director at least 10 days prior to the closing date.
If the director finds that the marketing program has been assented to in writing by one of the following, he shall make the marketing program effective:
Not less than 65 percent of the producers in the proration zone that produced for market not less than 51 percent of the quantity of the commodity which was produced in the proration zone in the next preceding season.
Not less than 51 percent of the producers that produced for market not less than 65 percent of the quantity of such commodity which was produced in the proration zone in the next preceding season.
If the director makes a marketing program effective, he shall publish a notice of the effective date pursuant to Section 6061 of the Government Code in the capital of the state and in such other localities as the director may prescribe, not less than five days prior to the effective date.
A member of the marketing program committee, or the proration zone agent, shall not unduly influence producers in their choice either for or against the institution of a marketing program, or for or against the termination of such a marketing program.
ARTICLE 10. Proration Certificates [59881. - 59886.]
After any marketing program has been formulated and has been approved as provided in this chapter, the agent for the proration zone shall assume the administration of the marketing program and any subsequent modification of it and the issuance of proration certificates pursuant to it. Such certificates shall be divided into primary and secondary certificates.
Each producer is entitled to one primary certificate which may indicate the quantities of the commodity for which the marketing program has been instituted which the producer that is named in the certificate is entitled to harvest or otherwise prepare for market and delivery into the primary channels of trade. The primary certificate may also indicate from time to time the number of secondary certificates which are issued under it.
Secondary certificates shall be numbered consecutively and shall be used to control the time and volume of harvesting or other preparation for disposal. Secondary certificates shall accompany all deliveries of the prorated commodity by producers into a primary trade channel.
In the case of any commodity which is normally concentrated for preparation for market, the marketing program committee may authorize the harvesting of the entire commodity for the purpose of delivery to a concentration point and subsequent marketing control.
Primary or secondary certificates are not negotiable between producers, except with the approval of the marketing program committee and the director.
In the operation of any marketing program, any cooperative or other market agency which is entitled to the possession of any commodity for marketing purposes may be authorized in writing by the marketing program committee to receive certificates for producers that are represented by it and to represent its respective producers if proration is applied to the commodity while it is in the possession of such agency.
ARTICLE 11. Amendments to Marketing Programs [59911. - 59927.]
An amendment is a major amendment if it adds to, or deletes from, a marketing program authority to correlate the marketable supply of any commodity with reasonable market demands by means of volume, grade, size, variety, or time regulations.
An amendment is a major amendment if it adds to, or deletes from, a marketing program authority to fix salable and surplus percentages.
An amendment is a major amendment if it adds to, or deletes from, a marketing program authority to establish, maintain, and operate stabilization, surplus, or diversion—substandard pools.
An amendment is a major amendment if it adds to, or deletes from, a marketing program authority to create, establish, or otherwise obtain and operate any facility for the storing, financing, grading, packing, servicing, processing, preparing for market, selling, or disposing of the contents of any pools which are established.
An amendment is a major amendment if it adds to, or deletes from, a marketing program authority to broaden distribution and increase consuming outlets by educational and trade stimulation efforts.
An amendment is a major amendment if it adds to, or deletes from, a marketing program authority to provide for the adjustment of production of any commodity by means of tree or vine pulling.
An amendment is a major amendment if it adds to, or deletes from, a marketing program authority for carrying on research which is related to production, processing, or distribution of any commodity, that is in addition to research that is directly necessary to the administration of the marketing program.
An amendment is a major amendment if it adds to, or deletes from, a marketing program authority to increase an assessment rate or fee beyond the maximum authorized by the marketing program which is in effect.
An amendment is a major amendment if it adds to, or deletes from, a marketing program authority to extend the application of the provisions of the marketing program to portions or uses of any commodity which is not subject to such provisions or to extend the application of such provisions upon the producers of such portions or uses of any such commodity.
A major amendment shall not be made effective unless a public hearing has been held upon it in accordance with Article 5 (commencing with Section 59641) of this chapter for the establishment or institution of a marketing program, and the director makes both of the following findings:
The amendment is in conformity with the applicable provisions and procedures of Article 5 of this chapter.
The amendment is assented to in writing in the required percentages prescribed in Article 9 (commencing with Section 59851) of this chapter.
Minor amendments may be made to an effective marketing program upon the recommendation of not less than 75 percent of the producer members of the marketing program committee, with the approval of the director, if the director finds that such amendments are in conformity with the applicable provisions and procedures of Article 5 (commencing with Section 59641) of this chapter.
If the director deems it advisable, he may hold a public hearing upon minor amendments prior to such approval. Any public hearing held for this purpose shall be held within the boundaries of the proration zone.
The amendment of any marketing program to provide for a referendum is a minor amendment.
Any modification of the provisions of any marketing program in effect for the purpose of clarifying the meaning or application of the provisions or modifying administrative procedures for carrying out the provisions is a minor amendment.
If the director makes any amendment to a marketing program effective, he shall publish a notice of the effective date pursuant to Section 6061 of the Government Code in the capital of the state and in such other localities as the director may prescribe, not less than five days prior to the effective date.
ARTICLE 12. Funds [59941. - 59958.]
The proration zone agent for each marketing program shall collect, either for each primary certificate or for each secondary certificate, or for both, a reasonable and proportional fee to be fixed by the program committee, subject to the approval of the director, so calculated as to provide an amount which is adequate to defray the necessary expenses of instituting and carrying out the marketing program and a proper proportion of the cost of the maintenance of the department in the performance of duties which are required by this chapter.
Any fee for primary certificates or secondary certificates which is fixed by the program committee with the approval of the director, pursuant to this article, is due and payable by each producer upon all units of the commodity of the producer which are subject to the certificates and constitutes a personal debt of the producer.
If any producer has authorized a handler to obtain secondary certificates and pay secondary certificate fees on behalf of the producer, or the handler has been a party to noncompliance with respect to payment for certificates or corresponding fees, the amounts unpaid constitute a personal debt of the handler.
For the convenience of collecting any producer fees which are established pursuant to this article, the director may collect such fees from the handlers of the commodity which is being regulated. Any handler that pays a fee for and on behalf of any producer may deduct the producer fee from any money which is owed by the handler to the producer. Any marketing program may require a handler to deduct producer fees from any money which is owed by the handler to the producer. Such producer fee deductions are hereby declared to be trust funds held by the handler for the purposes of the marketing program concerned and shall be timely remitted, with fee reports, to the director.
The proportion of the fees which is payable to the department may vary upon a seasonal basis for each program according to the estimated expense to be incurred by the director in administering the marketing program. The amount so required shall not exceed 15 percent of the certificate fees which are collected by the proration zone agent specifically for administrative purposes, however, such 15 percent limit may be exceeded when it is approved by the program committee, and, in addition, such proportion of fees which are collected for any educational and trade stimulation marketing program as may be required by the director to administer the marketing program, which shall in no event exceed 5 percent of the fees which are collected for such purpose, unless the payment of a larger proportion of such funds is approved by the marketing program committee for the marketing program.
Upon the request of any marketing program committee, the director shall confer with the committee or its representatives prior to fixing the amount or proportion of any fees of the marketing program which are payable to the department for maintenance of the department in the performance of the duties which are required by this chapter.
All fees shall be deposited promptly by the proration zone agent in a bank which is approved by the Director of Finance, and shall be accounted for immediately to the Director of Food and Agriculture. Each deposit shall be made in the name of the proration zone under which the funds are collected.
Any money which is so deposited may be invested and reinvested by the Treasurer or marketing program committee in any of the securities which are described in Article 1 (commencing with Section 16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code, or placed in a depository as provided in Chapter 4 (commencing with Section 16500) of Part 2 of Division 4 of Title 2 of the Government Code, and handled in the same manner as money in the State Treasury. For these purposes, these moneys may also be combined with funds which are determined by the director to be available for investment pursuant to Section 58939. Any increment which is received from investment, reinvestment, or deposit made by the Treasurer shall be remitted to the marketing program committee. The Treasurer may deduct from the remittance an amount equal to the reasonable cost incurred in carrying out this section or may bill the marketing program committee for the costs, and the marketing program committee shall pay the costs from any money which is collected for it pursuant to this chapter.
The funds that are deposited pursuant to Section 59946 shall be disbursed by the director or the marketing program committee, pursuant to regulations prescribed by him or her, only for the expenditures that are incurred by the marketing program committee in carrying out the specific purposes and provisions of the marketing program, including all necessary expenses that are incurred in the formulation, administration, and enforcement of the marketing program, and expenses generated by the auditing requirement imposed by subdivision (b).
All expenditures shall be audited at least once every two years by one of the following means:
By contract with a certified public accountant.
By contract with a public accountant holding a valid permit issued by the California Board of Accountancy.
By contract with a public accounting firm.
By agreement with the Department of Finance.
A copy of the audit shall be delivered, within 30 days after the completion of the audit, to the Governor, the director, and the Controller.
The proportionate amount of fees which are payable to the department shall be withdrawn from the funds monthly by the director and shall be used only for the department in carrying out its duties as required by this chapter.
At the end of any marketing season as designated in each marketing program, after proper provision has been made for the payment of all necessary expense which is incurred in connection with the marketing season, any money which remains to the credit of the marketing program committee may be refunded upon a pro rata basis to all persons from whom certificate fees were collected.
During any marketing season, however, the marketing program committee may, with the approval of the director, carry forward any unexpended balances for expenditure during seasons subsequent to the season during which such fees were collected. Alternatively, the refund may, upon the resolution of the marketing program committee and with the approval of the director, be deferred so as to permit the marketing program committee to use the residual funds to meet operating expenses in the succeeding season or until sufficient funds have been collected, or the collection of sufficient funds is assured, to enable the committee to make the refund and to defray the expenses of the then current marketing season, including an allowance for preliminary expenses of the next succeeding season.
At the time a refund is made, the marketing program committee shall file with the director a claim for the refund to growers that are entitled to such refund. If the director finds that as of the end of any marketing season the amount which remains to the credit of the marketing program committee is so small as to make impractical the computation and remitting of the pro rata refund, he may authorize the transfer of the funds to the then current marketing season for expenditure in carrying out the marketing program.
Unexpended balances of any money which is collected to carry out the educational and trade stimulation efforts which are provided for in Sections 59816, 59817, and 59818 which are sufficient in amount to warrant incurring the expense of making a refund shall be refunded following the termination of any marketing program which contains provisions which are authorized by those sections or following the suspension or termination of educational and trade stimulation provisions of any marketing program. The refund shall be made upon such pro rata basis as the program committee and the director determine is equitable.
If the unexpended balance is so small as to make impractical the computation and remitting of a pro rata refund, the director may authorize the transfer of the funds to the administrative account of the marketing program or to the Department of Agriculture Fund for the support of the department in carrying out its duties in the administration of this chapter.
Unless otherwise requested by the marketing program committee, the director is not required to issue refunds to any producer in an amount less than five dollars ($5).
Any check or warrant which is drawn against the fund of any marketing program which remains unclaimed or uncashed for a period of six months from the date of issuance shall be canceled and the money retained for disbursement to the original payee or claimant upon satisfactory identification for a period of one year from the time the check or warrant is canceled. The money so retained, if not claimed within the period of one year, shall be credited to the then currently operating marketing program for the commodity pursuant to which the funds so retained were collected.
If there is no marketing program then in effective operation for the commodity, the funds shall be credited to the unexpended balance, if any, of the last previous marketing program for the commodity. If there is no marketing program then in current operation or no balance exists from any previous marketing program to which the funds may be credited, the funds so retained may be expended by the director for the benefit of any marketing program established under the provision of this chapter.
An agent or employee of the marketing program committee shall not have or receive any funds which are collected pursuant to this chapter until such agent or employee has filed with the director a bond in such form and in such penal sum as the director may prescribe.
Upon the recommendation of the marketing program committee, the director may relieve the proration zone agent of the responsibility of collecting any amount which is due and unpaid not exceeding five dollars ($5) if the director determines that the collection is improbable or the cost of collecting would exceed the amount which is involved.
The director, in addition to other remedies which are provided by law, may direct suit in the name of the people of this state as plaintiff, to be brought for the recovery of fees as provided in this chapter. In such case, the director may make the necessary affidavit for and a writ of attachment may issue. All fees collected in this manner shall be handled as provided in this article.
ARTICLE 13. Termination of Marketing Programs [59981. - 59988.]
Except as otherwise provided in Section 59820, if any marketing program which is in active operation does not provide for a periodic referendum of producers of record with the department, directly affected by the program, for the purpose of determining whether or not the program shall be continued or modified, the director shall, prior to the beginning of a marketing season, conduct a referendum on the program at least biennially for the purpose of making the determination.
An expression by a majority of the producers that participate in the referendum shall govern the action of the director in declaring a program modified, continued, or suspended.
In conducting the referendum, the director may require the majority expression to be that of producers in terms of volume of production in addition to numbers of producers voting.
After the institution of any marketing program, the program shall be terminated if there is filed with the director a petition for its termination which is signed by not less than 40 percent of the producers of the commodity in the proration zone that produced not less than 40 percent of the commodity affected that was produced within the proration zone during the last preceding season.
The signatures of the producers upon the petition shall be those of the producers whose names appear on the list which was used at the institution of the program or on any corrected list which the director has had prepared during the existence of the marketing program, or their successors in interest.
Each petitioner shall, upon affixing his signature to the petition for termination, write in the date of signing. No signature to the petition shall be valid for any purpose if affixed more than six months prior to the filing of the petition with the director. The petition shall be accompanied by a good and sufficient undertaking in an amount which is equal to the probable costs incident to conducting the hearing and making of findings. A hearing shall be held by the director upon the petition to determine the sufficiency of the signatures within 60 days after the presentation of the petition.
If from a check of the petition together with the facts and evidence which are adduced at the hearing, it is established that the petition to terminate is signed by the required 40 percent of the producers of the commodity in the zone that produced at least 40 percent of the proration commodity affected which was produced within the zone during the last preceding season, the director shall terminate the marketing program. Any marketing program on a seasonal commodity shall not, however, be terminated except at the end of its marketing season.
The costs incident to conducting the hearing and making of findings shall initially be paid from the funds of the program to the extent that they are available and thereafter from the undertaking. If the petition is found to be insufficiently signed, the entire cost of conducting the hearing shall be paid from the undertaking. If a program is terminated, any funds which remain for the use of the program committee that are not otherwise disposed of by this chapter shall be deposited in the State Treasury to the credit of the Department of Agriculture Fund.
The director may at any time initiate an investigation to determine whether or not the facts which are specified in Sections 59655 to 59662, inclusive, continue to exist. Upon a finding that any one or more of the prerequisite facts no longer exist, the director shall terminate or suspend the marketing program and may dissolve the proration zone. A program on a seasonal commodity shall not, however, be terminated or suspended except at the end of its marketing season.
ARTICLE 14. Actions and Penalties [60011. - 60016.]
Any action for penalties or other remedies which is prescribed in this chapter shall be commenced within two years from the date of the alleged violation.
Any person that possesses, markets, handles, or transports any commodity in violation of any provision of an original or modified marketing program which is approved and made effective or in violation of any regulation which is adopted by any marketing program committee and approved by the director may be enjoined by the director, or, with the approval of the director, by the proration zone which is affected, in an action which is brought in the superior court for any county in which the violation is alleged to be occurring. There may be enjoined in the same proceeding any number of defendants that are alleged to be violating the same program although their actual violations of the marketing program may be separate and distinct and occur in different counties. In any action for injunction which is brought pursuant to this section, the procedure shall be governed by Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure.
Any person that violates a marketing program which is approved and made effective, or violates any regulation which is adopted by any program committee and approved by the director, is liable civilly in an amount of not more than two thousand five hundred dollars ($2,500) for each and every violation. That sum shall be recovered by the director or, with the approval of the director, by the proration zone which is affected, in an action brought in any court of competent jurisdiction. All sums recovered pursuant to this section shall be expended only for the necessary expenses which are incurred by the director in the administration of this chapter. Each violation during any day is a separate offense.
Except as otherwise provided in Section 60015, it is a misdemeanor for:
Any person to willfully render or furnish a false or fraudulent report, statement, or record required under this chapter.
Any person to deliver into a primary trade channel without proper authority any commodity upon which a marketing program has been instituted.
Any handler, dealer, or carrier to receive or have in its possession, within this state, without proper authority, any commodity upon which a marketing program has been instituted.
Any person to deliver or to attempt to deliver any commodity that has been diverted under the provisions of any marketing program into any channel of trade except that into which diversion has been ordered.
Any person to aid or abet in the commission of any of the acts which are specified in this section.
Each violation of this section constitutes a separate and distinct offense.
Section 60014 does not apply to a common carrier which is operating over a regular route or between fixed termini if the shipment is made by the carrier in good faith and in accordance with its duties as a common carrier and a record of every such shipment within or from this state is kept by the carrier which shows the date of shipment, character and quality of shipment, origin and destination of the shipment, and the names of the consignor and the consignee. The record shall be open to inspection at all reasonable hours by or on the written order of the official or administrative authority that is charged with the enforcement of this chapter or any marketing program pusuant to this chapter.
When the director makes a determination that a marketing program fee payment due pursuant to this chapter is deficient as to the payment due, the director may determine the amount of the deficiency, including any applicable penalty, as provided in this section. After giving notice that a deficiency determination is proposed and an opportunity to file a report or provide supplemental information is provided, the director may make one or more deficiency determinations of the amount due for any reporting period based on information in the director’s possession. When a business is discontinued, a deficiency determination may be made at any time thereafter as to liability arising out of the operation of that business.
The director shall give notice of the proposed deficiency determination and the notice of deficiency determination by placing the notice thereof in a sealed envelope with postage paid addressed to the person affected as it appears in the records of the marketing order or as otherwise available to the director. The giving of notice is complete at the time of deposit in the United States mail. In lieu of mailing, a notice may be served personally by delivering it to the person to be served.
Except in the case of fraud or failure to file a required return, a notice of a deficiency determination shall be given within four years of the accrual of the deficiency.
The person against whom a deficiency determination is made may petition the director for redetermination within 30 days after the serving of the notice of deficiency determination. If a petition is not filed within 30 days, the deficiency determination shall become final.
A petition for redetermination shall be in writing, state the specific grounds upon which it is based, and be supported by applicable records and declarations under penalty of perjury that the information supporting the petition is accurate and complete. If a petition for redetermination is duly filed, the director shall reconsider the deficiency determination and may grant a hearing thereon. The director shall, as soon as practicable, make an order on redetermination, which shall become final 30 days after service of notice of the order of redetermination upon the petitioner. The notice of the order shall be served in the same manner as the notice of the original deficiency determination.
If any amount required to be paid pursuant to a deficiency determination or redetermination is not paid within the time specified in the notice thereof, the director may, within four years thereafter, file in the Superior Court for the County of Sacramento, or the superior court of any other county, a certificate specifying the amount required to be paid, the name and address of the person liable as it appears on the records of the director, and a request that judgment be entered against the person in that amount 30 days after the filing. Notice of the filing shall be given in the same manner as for the notice of deficiency determination. The court shall enter a judgment in conformance with the director’s certificate 30 days after its filing, unless a petition for judicial review has been filed within the 30-day period.
An abstract of the judgment, or a copy thereof, may be filed with the county recorder of any county. From the time of filing of the judgment, the amount of the judgment constitutes a lien upon all of the property in the county owned by the judgment debtor. The lien has the force, effect, and priority of a judgment lien and shall continue for 10 years from the date of the judgment, unless sooner released or otherwise discharged. The lien imposed by this section is not valid insofar as personal property is concerned against a purchaser for value without actual knowledge of the lien.
Execution shall issue upon the judgment upon request of the director in the same manner as execution may issue upon other judgments, and sales shall be held under execution as prescribed in the Code of Civil Procedure.
The person named in a notice of deficiency determination or redetermination may, within 30 days of the notice of filing with the superior court, file an action for judicial review thereof, as provided in subdivision (c), in the Superior Court for the County of Sacramento or, with the director’s consent, the superior court of any other county where the Attorney General maintains an office. As a condition of staying entry of judgment or granting other relief, the court shall require the filing of a corporate surety bond with the director in the amount of the deficiency stated in the certificate. In any court proceeding, the certificate of the director determining the deficiency shall be prima facie evidence of the fee and the amount due and unpaid.
The provisions of this section are supplemental to any other procedures for collection and imposition of fees and penalties provided by this chapter.
In lieu of proceeding pursuant to this section, the director may file a complaint for collection of unpaid fees as provided by law.
PART 3. MARKETING LAWS REGARDING PARTICULAR PRODUCTS [61301. - 63129.]
CHAPTER 1. Marketing of Milk and Other Dairy Products [61301. - 61573.]
ARTICLE 1. Definitions [61301. - 61317.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Bulk milk” or “bulk cream” means milk or cream, respectively, which has not been pasteurized or packaged in bottles, cartons, dispenser cans, or other consumer packages, and which is handled or delivered, in bulk, in tanks, cans, or other bulk containers.
For this purpose, skim milk or cream which has been preheated or pasteurized not more than once, as provided in Section 34004 or 34005 of this code, and is handled or delivered in bulk is not pasteurized.
“Consumer” means any person that buys milk, cream, or any dairy product for consumption and not for resale.
“Cream” has the meaning of that term as defined in Section 32504.
“Dairy product” means any product classified as Class 1 or Class 2 under Section 61932, 61933, or 61936; any frozen product or frozen product mix classified as Class 3 under Section 61934; any product classified as Class 4b under subdivision (b) of Section 61935; butter; pasteurized process cheese; and any filled product or any imitation milk product in which the use of market milk or any component of market milk is required by Section 38925. This definition applies to the designated products whether processed or manufactured in the state or outside of the state and irrespective of the classification of those products at a point of origin outside the state.
“Distributor” means any handler, as defined in Section 61826, and includes brokers and agents and the nonprofit cooperative associations described in Article 2 (commencing with Section 61331) of this chapter in the transactions in which such article provides that the associations are distributors. It also includes both of the following:
Any person who regularly operates mobile vehicles on routes predominantly for sales of market milk, market cream, or dairy products on such routes to wholesale customers.
A wholesale customer only as to milk, cream, or any dairy product that is actively and directly processed, manufactured, or packaged by such wholesale customer.
Distributor does not, however, include any of the following:
Any wholesale customer which is not actively and directly engaged in manufacturing, processing, or packaging milk, cream, or any dairy product.
Any producer that delivers milk or cream only to a distributor or manufacturer.
“Educational and research activities” means any effort to develop and improve the management practices of dairy producers and processors, including, but not limited to, practices associated with the environmental sustainability of land, air quality, and water quality.
“Manufacturing milk” has the meaning of that term as defined in Section 32509.
“Manufacturing milk handler” means any person who, as owner, agent, broker, or intermediary, either directly or indirectly, receives, purchases, or otherwise acquires ownership, possession, or control of manufacturing milk in unprocessed or bulk form from a producer, a producer-handler, or another manufacturing milk handler for the purpose of manufacture, processing, sale, or other handling, regardless of whether the manufacturing milk is produced within or outside this state.
“Manufacturing milk plant” means any place, structure, or building where a handler receives manufacturing milk.
“Manufacturer” means any person that is engaged in the business of manufacturing any dairy product.
“Market milk” has the meaning of that term as defined in Section 32510.
“Market cream” has the meaning of that term as defined in Section 35811.
“Milk” has the meaning of that term as defined in Section 32511.
“Packaged milk,” “packaged cream,” or “packaged dairy product” means market milk, market cream, or any dairy product, respectively, which is packaged in cartons, bottles, dispenser cans, or other consumer packages for sale to wholesale customers or consumers.
“Person” means any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, nonprofit cooperative association, nonprofit corporation, or any other business unit or organization.
“Producer” means any person that operates a dairy herd which produces milk or cream commercially and whose bulk milk or bulk cream is received or handled by any distributor, manufacturer, or any nonprofit cooperative association of producers. It includes the nonprofit cooperative associations described in Article 2 (commencing with Section 61331) of this chapter in the transactions in which such article provides the associations are producers.
“Producer-distributor” means any person that is both a producer of milk or cream and a distributor of milk, cream, or any dairy product. For the purpose of this chapter, a “producer-distributor” is a producer in any transaction which involves the delivering of bulk milk or bulk cream produced by him to a distributor, manufacturer, or any nonprofit cooperative association of producers, and is a distributor in any transaction which involves the pasteurization of bulk market milk or bulk market cream, or the packaging of such milk or cream in bottles, cartons, dispenser cans, or other consumer packages, or the sale or delivery of packaged milk, packaged cream, or packaged diary products.
“Restricted use market milk” has the meaning of that term as defined in Section 32516.5.
“Wholesale customer” means any person other than a distributor that buys packaged milk, cream, or any dairy product for resale to consumers or to other wholesale customers.
ARTICLE 2. Nonprofit Cooperative Associations [61331. - 61333.]
For the purposes of this chapter, a nonprofit cooperative association which is organized and existing under Chapter 1 (commencing with Section 54001) of Division 20 of this code, that acts for producers, including members and any nonmembers of the association, to whom it accounts on a patronage basis, is a producer in any of the following transactions:
Any transaction which involves its receipt or handling of bulk market milk, bulk market cream, or any bulk dairy product which was produced or delivered by such producers.
Any transaction which involves the sale or delivery of bulk market milk, bulk market cream, or any bulk dairy product to any producer, distributor, manufacturer, or other nonprofit cooperative association of producers.
The receipt by it of payment for bulk market milk, bulk market cream, or any bulk dairy product which was produced or delivered by such producers.
Any transaction in connection with accounting to such producers for the proceeds derived from the sale or marketing of market milk, market cream, or any dairy product whether packaged or in bulk.
For the purposes of this chapter, a nonprofit cooperative association which is organized and existing under Chapter 1 (commencing with Section 54001) of Division 20 of this code, that acts for producers, including members and any nonmembers of the association, to whom it accounts on a patronage basis, is a distributor in any transaction which involves the receipt by it of market milk, market cream, or any dairy product from any person other than a producer to whom it accounts on a patronage basis and in any transaction which involves the pasteurization of bulk milk or bulk cream, or the packaging of it in bottles, cartons, dispenser cans, or other consumer packages, or the sale or delivery of packaged milk, packaged cream, or any packaged dairy product.
A nonprofit cooperative association accounts to producers on a patronage basis when it accounts to each producer for his share of the net proceeds derived from the marketing operations of the association, according to quantity and quality of fluid milk and fluid cream furnished to the association for marketing and according to any marketing pools and quotas established by the association.
ARTICLE 3. General Provisions [61341. - 61345.]
The director may adopt regulations for the proper administration and enforcement of the provisions of this chapter. Any violation of any such regulation is subject to the remedies, procedures, and penalties which are provided in Article 10 (commencing with Section 61571) of this chapter.
The provisions of this chapter shall be liberally construed as being complementary of, and supplemental to, the provisions of Chapter 2 (commencing with Section 61801) of this part. If a provision of this chapter and a similar provision of Chapter 2 is applicable to the same person and subject matter the provisions of Chapter 2 shall control. If a provision of this chapter is applicable to any person and subject matter as to which Chapter 2 makes no express provision, the provision of this chapter shall control.
Any person and subject matter to which this chapter is applicable is not subject to the provisions of the Unfair Practices Act, Chapter 4 (commencing with Section 17000), Part 2, Division 7 of the Business and Professions Code.
This chapter shall be liberally construed. If any article, section, subdivision, sentence, clause, or phrase of this chapter is for any reason held to be unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the validity of the remaining provisions of this chapter or the application of this chapter to any other person or under any other circumstances.
The Legislature hereby declares that it would have enacted each article, section, subdivision, sentence, clause, or phrase of this chapter regardless of the fact that one or more other articles, sections, subdivisions, sentences, clauses, or phrases are declared unconstitutional or invalid.
Chapter 2 (commencing with Section 61801), Chapter 2.5 (commencing with Section 62500), and Chapter 3 (commencing with Section 62700) shall be liberally construed as being complementary of, and supplemental to, this chapter, and these chapters shall constitute a single comprehensive scheme for the regulation of the production and handling of milk and related educational and research activities. However, each of the chapters, and each article, section, subdivision, sentence, clause, and phrase of each chapter is severable.
If one of the chapters or any article, section, subdivision, sentence, clause, or phrase of any one of the chapters is for any reason held void, invalid, or unconstitutional, the decision shall not affect the validity of any other chapter or any of its articles, sections, subdivisions, sentences, clauses, or phrases.
ARTICLE 4. Unlawful Practices [61381. - 61391.]
Discrimination in price between distributors or between wholesale customers, or between consumers, that purchase milk, cream, or any dairy product of like grade and quality under like conditions of service if the effect of that discrimination may be substantially to lessen competition or to injure or destroy or prevent competition with the person that either grants or knowingly receives the benefit of the discrimination is an unlawful practice. This section does not, however, prevent differentials which make only due allowance for differences in the cost of the raw product which is used in the milk, cream, or dairy product, or the cost of manufacture, processing, sale, or delivery which results from the different methods or quantities in which the commodities are manufactured, processed, sold, or delivered.
The sale or offer to sell or giving of any article in any transaction which involves the sale or disposal of milk, cream, or any dairy product, for less than the cost of the article, as “cost” is defined in Section 61384, to secure or retain the milk, cream, or dairy products business of any wholesale customer or any person that buys as a consumer is an unlawful practice.
The sale by any retailer, wholesale customer, manufacturer, or distributor, including any producer-distributor or nonprofit cooperative association acting as a distributor, of milk, cream, or any dairy product at less than cost is an unlawful practice. This subdivision applies to finished products, and does not apply to sales of bulk milk between handlers.
For purposes of this section, the following terms have the following meanings:
“Cost,” as applied to manufacturers and distributors, means the total consideration paid or exchanged for raw product, plus the total expense incurred for manufacturing, processing, handling, sale, and delivery.
“Cost,” as applied to wholesale customers, means the invoice price charged to the wholesale customer, or the expense of replacement, whichever is lower, plus the wholesale customer’s cost of doing business.
“Cost of doing business,” as applied to wholesale customers, means a wholesale customer’s total operating expense divided by the customer’s total sales income.
“Total consideration paid or exchanged for raw product,” in the case of market milk or market cream used in the manufacture of Class I products as defined pursuant to Sections 1051.40 and 1051.42 of Title 7 of the Code of Federal Regulations means the current announced regulated minimum price of Class I milk, skim, or cream, payable by handlers to producers as provided in Sections 1051.50, 1051.51, and 1051.52 of Title 7 of the Code of Federal Regulations.
Proof of cost, based on audits or surveys conducted in accordance with generally accepted accounting principles as defined by the American Institute of Certified Public Accountants and the Financial Accounting Standards Board, and modified, if necessary, to satisfy the requirements of this section, shall establish a rebuttable presumption of that cost at the time of the transaction of any sale. This presumption is a presumption affecting the burden of proof, but it does not apply in a criminal action.
Nothing in this section shall be deemed to prohibit any of the following activities:
The secretary shall establish, by regulation pursuant to Section 61341, the procedures that shall be used to make the determinations required by this section, including the following:
Any modifications to the generally accepted accounting principles described in subdivision (c) necessary to satisfy the requirements of this section.
Procedures for evaluating efforts to meet lawful competitive prices or conditions.
Other procedures necessary or appropriate to facilitate the application or enforcement of this section.
Any false statement or representation which is knowingly made, by any wholesale customer or consumer, or anyone that is acting on the behalf of either, to any distributor or manufacturer, or any representative of a distributor or manufacturer, that a competitor of the distributor or manufacturer has offered or is offering to sell, or is selling milk, cream, or any dairy product to the wholesale customer or consumer at a lower price than the manufacturer or distributor has offered or is offering to sell, or is selling it is an unlawful practice.
Solicitation by, or collusion or joint participation between or among, any manufacturer, distributor, producer, wholesale customer, consumer, or any representative of any of them, to commit any of the unlawful practices which are prescribed in this article, or the use of any misrepresentation, threat, intimidation, or boycott to effectuate the commission of those unlawful practices, makes any person that participates in those unlawful practices subject to the penalties of this chapter.
ARTICLE 5. Bonding and Payment for Manufacturing Milk [61400. - 61419.]
It is recognized by the Legislature that unfair and disruptive practices have developed concerning the purchasing of manufacturing milk, as defined in Section 32509, including the failure to pay, or the making of late payments, to producers of manufacturing milk. Such practices tend to disrupt and interfere with the purposes of this chapter by, among other things, creating an unfair advantage to purchasers of manufacturing milk used for manufacturing purposes over purchasers of market milk used for manufacturing purposes. It is necessary, in order to more fully achieve the purposes of this chapter, to provide for the requirement of a payment bond and a schedule for payment concerning purchases of manufacturing milk in certain circumstances.
The bond provided for in this article is required for each manufacturing milk handler.
Every manufacturing milk handler that operates only one plant within the state, before purchasing any manufacturing milk from a producer, shall execute and deliver to the secretary a surety bond, executed by the applicant as principal and by a surety company qualified and authorized to do business in this state as surety. The amount of the bond shall be based upon the average daily quantity of manufacturing milk purchased by the handler during any calendar month during a calendar year. The minimum amount of the bond shall be as follows:
Five thousand dollars ($5,000) for any handler that purchases an average daily quantity of less than 1,000 gallons.
Ten thousand dollars ($10,000) for any handler that purchases an average daily quantity of at least 1,000 gallons but less than 4,000 gallons.
Fifteen thousand dollars ($15,000) for any handler that purchases an average daily quantity of at least 4,000 gallons but less than 8,000 gallons.
Twenty thousand dollars ($20,000) for any handler that purchases an average daily quantity of 8,000 gallons or more.
Every manufacturing milk handler that operates more than one plant within the state, before purchasing any manufacturing milk from a producer, shall execute and deliver to the secretary a surety bond, executed by the applicant as principal and by a surety company qualified and authorized to do business in this state as surety. The bond shall be a single bond covering all plants within the state and shall be in an amount determined by multiplying twenty thousand dollars ($20,000) by the number of plants operated by the handler in the state.
Any milk purchase agreement between a handler and a producer may provide for surety bonds, guarantees, or other forms of security in addition to the bonding requirements in this article.
If any handler increases his or her purchases of manufacturing milk during the license year so that the purchases exceed the amount for which the handler is bonded, the handler shall immediately post an additional bond as may be required to comply with this article.
The bond required by Section 61405 shall be in a form approved by the director, and shall be conditioned upon the payment in the manner that is required by the terms of purchase between the manufacturing milk handler and the producer of all amounts due to producers for manufacturing milk purchased by the licensee or applicant during the license year. The bond shall be to the state in favor of every producer of manufacturing milk.
If a handler fails to pay any producer or producers in the manner that is required by this chapter, the director shall proceed forthwith to ascertain the names and addresses of all the producers that the handler has failed to pay, together with the amounts due and owing to them and each of them by the handler, and shall request all of those producers to file a verified statement of their respective claims with the director. The producer need only verify that he or she is owed an amount by the handler. The actual amount in that case may be ascertained by the director.
After determining the claims of the producers pursuant to Section 61407, the director shall bring an action on the bond on behalf of the producers.
Any producer not satisfied with the amount of the producer’s claim as determined by the director, or with the ratio the producer’s claim bears to all claims against the bond as determined by the director, may intervene in an action commenced upon the bond so that the correct amount of his or her claim and the ratio it bears to all the claims may be adjudicated.
If the recovery upon the bond is not sufficient to pay all of the claims as finally determined and adjudged by the court, the amount recovered shall be divided pro rata among the producer-creditors.
Payments by a handler to a producer, for the purposes of any action on a handler’s bond for any year, shall be credited first to interest and then to principal due, owed, and unpaid. Amounts to be applied to the principal shall be applied first to the amount owed for the most recent deliveries and then successively, in descending order, to the amounts owed to the next most recent deliveries.
The director may bring an action against a surety bond company if the company fails to do any of the following:
Acknowledge promptly and act reasonably upon receiving a bond demand from the director.
Promptly investigate and process claims.
Make fair and equitable settlement of claims.
Pay the bond amount to the director.
The authority provided in subdivision (a) is in addition to the authority provided for in subdivision (h) of Section 790.03 of the Insurance Code.
In addition to the bond proceeds, the surety bond company may be ordered to pay interest at the prevailing prime rate on the amounts owed from the date the claim was filed, all of the department’s court costs, and reasonable attorney’s fees.
If a manufacturing milk handler fails to pay any producer in the manner that is required by this chapter, the director may require the filing of a new or additional bond in the amount determined by the director to be sufficient to satisfy claims for the payment of producers thereafter supplying manufacturing milk to the manufacturing milk handler. The failure of a manufacturing milk handler to have filed a new bond within 10 days after notice from the director constitutes grounds for the revocation or suspension of the manufacturing milk handler’s license of the manufacturing milk handler.
The failure of any manufacturing milk handler that purchases manufacturing milk from producers to execute and deliver the bond as provided and required in this article is a violation of this chapter. The failure of any handler to post any additional bond as may be required is also a violation of this chapter.
The failure of any manufacturing milk handler that purchases manufacturing milk from producers to execute and deliver the bond as provided and required in this article shall constitute grounds for suspension, revocation, or refusal of the manufacturing milk handler’s license. The failure of any handler to post any additional bond as may be required to comply with this article shall also be grounds for suspension, revocation, or refusal of the license pursuant to these procedures.
Except as otherwise provided in Section 61411.2 or 61411.3, the purchase of any manufacturing milk in excess of 1,000 gallons monthly from any manufacturing milk producer without a written contract that has been executed and complies with all the requirements of this article is an unlawful practice. The contract shall include all of the following:
The amount of manufacturing milk which is to be purchased for any period.
The price to be paid for all manufacturing milk received.
The date and method of payment for the manufacturing milk. Payment shall be made for the amount of the manufacturing milk delivered during the first 15 days of any calendar month not later than the first day of the next following month and for the amount delivered during the remainder of the month not later than the 15th day of the next following month.
The charges for transportation, if hauled by the handler, which shall be the lower of either of the following:
A rate not in excess of the rate charged for actual or reasonably similar services by highway carriers, as the term “highway carrier” is defined in Section 3511 of the Public Utilities Code.
The actual amount paid by a handler for that transportation.
The contract may contain any other provisions that are not in conflict with this chapter. A signed copy of the contract shall be filed by the producer with the director within five days of the date of its execution.
This section does not apply to the purchase of milk which does not meet market milk standards in Chapter 2 (commencing with Section 35751) of Part 2 of Division 15, when the milk has been processed on a dairy farm that held a valid market milk permit during the 30-day period preceding the purchase.
The production of manufacturing milk in excess of amounts to be purchased under contracts executed pursuant to Section 61411 shall be voluntary on the part of the producer and shall not be a condition, oral or written, of the execution or renewal of any contract.
Section 61411 does not apply to the purchase of manufacturing milk which is necessary to meet an unanticipated increase in demand or an unanticipated shortage in the supply of a handler if the quantity purchased from any one producer does not exceed 5,000 gallons in any one month. However, if the producer is a cooperative association acting as a producer, the total quantity purchased shall not exceed 30,000 gallons per month.
For a single transaction between a producer and handler, payment shall be made for the amount of milk delivered during the first 15 days of any calendar month not later than the first day of the next following month and payment shall be made for the amount of milk delivered during the remainder of the month not later than the 15th day of the next following month, unless the milk is subject to a pooling plan as authorized in Chapter 3 (commencing with Section 62700) and the pooling plan provides for different dates and methods of payment, in which case the date and method of payment for the milk shall be as provided for in the pooling plan.
Section 61411 does not apply to manufacturing milk purchased under cash-on-delivery terms.
Any contract between a producer and a handler shall be voidable by the producer for a 45-day period following the occurrence of either of the following:
The handler has failed to pay the producer the full price specified in the contract or has failed to comply with the terms specified in subdivision (c) of Section 61411, and the failure has not been corrected by the handler within one business day after notification by the producer or director. The 45-day period shall commence on the day after the payment was due.
The handler has failed on three separate occasions within a 12-month period to pay the producer the full price specified in the contract or has failed to comply with the terms specified in subdivision (c) of Section 61411. The 45-day period shall commence on the day after the third occurrence.
If a notice has been issued by the director that the future deliveries to the handler shall not be covered under the Milk Producers Security Trust Fund created pursuant to Chapter 2.5 (commencing with Section 62500), all contracts between producers and the handler are voidable by the producers. Producers shall have the option to void their contracts for a 45-day period from the date the notice is issued or until the date the director establishes for reinstatement of the handler’s eligibility under the trust fund, whichever is later.
Every milk handler who receives manufacturing milk subject to this article shall deduct as an assessment from payments made to producers for manufacturing milk the sum of one and two-tenths cents ($0.012) per hundredweight of manufacturing milk.
The amount of the assessments deducted pursuant to paragraph (1) shall be paid to the secretary on or before the 45th day following the last day of the month during which the manufacturing milk was received.
Every milk handler who receives manufacturing milk subject to this article that purchases or handles manufacturing milk from producers shall pay a fee of six-tenths of one cent ($0.006) per hundredweight of manufacturing milk.
The amount of the fee shall be paid to the secretary on or before the 45th day following the last day of the month in which the manufacturing milk was received.
Moneys from the amounts paid to the secretary pursuant to subdivisions (a) and (b) may be used to administer and enforce this chapter.
The director may fix the rates of assessments or fees required by Section 61412 at lesser amounts, and may adjust the rates of assessments or fees from time to time, whenever he or she finds that the cost of administering this article can be defrayed from revenues derived from the lower rates, provided that the rate of assessments deducted from payments to producers for manufacturing milk and the rate of fees paid by manufacturing milk handlers shall at all times be in the ratio of two to one.
Any assessment or fee or either of them payable pursuant to any provision of this article is a debt of the person by whom the assessment or fee or either of them is payable and shall be due and payable to the director upon the date set forth in Section 61412. If the person does not pay the assessment or fee or either of them upon the required date, the director may file a complaint against that person in a state court of competent jurisdiction for the collection of the assessment or fee or either of them.
If any such person does not pay to the director the assessments or fees or either of them provided for in this article, on or before the date specified in Section 61412, the director may add to the unpaid assessments or fees or either of them an amount not exceeding 10 percent of the unpaid assessment or fees or either of them to defray the cost of enforcing the collection of the unpaid assessments or fees or either of them.
The failure of any handler to pay for manufacturing milk delivered to the handler at the time and in the manner specified in the contract with the producer is an unlawful trade practice.
Handlers shall pay producers either by check or cash. Handlers electing to pay producers in cash shall, in all cases, obtain a dated, signed receipt from each producer. These receipts shall be made a part of the permanent records of the handler. Handlers paying by check shall issue checks which are reduceable to cash by the producer in no more than one business day.
The giving of a promissory note is not payment within the meaning of this chapter.
If a handler does not pay for manufacturing milk delivered to him or her at the time and in the manner specified in the contract, the handler shall pay the producer interest on the unpaid amount from the time the payment was due until paid at the rate of 12 percent per annum. The interest is in addition to any other penalties provided in this chapter.
If there is no contract for the delivery of milk to the handler or the delivery was made as a single transaction between the producer or handler, the handler shall pay the department interest on the unpaid amount from the time the payment was due until paid at the interest rate specified in subdivision (a). The interest is in addition to any other penalties provided in this chapter.
If a handler fails to pay for manufacturing milk delivered to him or her at the time and in the manner specified in this chapter, the director may assess a penalty for each payment date that the producers were not fully paid. Any penalty assessed shall be a minimum of one hundred dollars ($100) for each payment date. If the amount not properly paid is more than forty thousand dollars ($40,000), the penalty assessed shall be five thousand dollars ($5,000) or one-fourth of 1 percent of the amount not properly paid, whichever is less.
The director may revoke or suspend any license of a handler if the director finds as a result of a noticed hearing that the handler has not paid for any manufacturing milk delivered to him or her at the time and in the manner specified in the contract with the producer.
The director, pursuant to the procedure in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, may also refuse to grant or renew any license to a handler if the director is satisfied that the handler has failed to pay for any manufacturing milk delivered to him or her at the time and in the manner specified in the contract with the producer.
In lieu of revoking or suspending a handler’s license under Section 61416, the director may impose any other conditional and probationary orders, pursuant to a noticed hearing, that may be proper for the enforcement of this chapter or to enforce any provision of any regulation adopted by the director pursuant to Section 61341.
If the respondent does not comply with any conditional or probationary orders, the director may suspend or revoke the license in accordance with the procedure provided in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
Whenever the director is satisfied, either by investigation or after a hearing, that a handler is unable to pay for any manufacturing milk purchased from any producer, and is further satisfied that to permit the handler to continue to purchase and receive any manufacturing milk from producers would be likely to cause serious and irreparable loss to producer-creditors and other producers, the director may thereupon and forthwith shorten the time for hearing that is provided for in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and thereupon may issue an order to show cause why the license of the handler should not be forthwith suspended or revoked. The time of notice of the hearing shall not, however, be less than five days. At the hearing the handler that is proceeded against shall be ordered to show cause why the license should not be suspended or revoked, or continued under conditions and provisions, if any, that the director may consider just and proper and for the protection of the best interests of the producer-creditors and producers from whom the handler has been and is receiving any manufacturing milk. Following the hearing, the decision of the director shall become effective at the director’s discretion.
The hearing, in the case of an emergency, may be called upon written notice which is served personally or by mail on the handler that is involved. If the notice is sent by mail, the hearing date shall be no sooner than 10 days after the notice is sent. It may be held at the nearest office of the director or at any place that may be most convenient in the discretion of the director for the attendance of all of the parties that are involved.
ARTICLE 6. Records [61441. - 61443.]
Every distributor, person who sells at wholesale, or manufacturer of milk, cream, or any dairy product shall maintain and keep, for a period of three years from their initial recordation, or for a period of three years from their expiration date, whichever period is longer, all of the following records:
A record of all milk, cream, or dairy products received, detailed as to location, names and addresses of suppliers, prices paid, and deductions or charges made, and the use to which the milk or cream was put.
A record of all milk, cream, or dairy products sold, classified as to kind and grade of milk, cream, or dairy product, showing where the milk, cream, and dairy products were sold, the quantities sold, the amounts received for the sales, and the written price schedules maintained by the distributor, person who sells at wholesale, or manufacturer for all milk, cream, and dairy products sold.
A record of the wastage or loss of milk or any dairy product.
A record of all costs of manufacturing, processing, handling, sale, and delivery, including overhead costs.
A record of all property or financial transactions, other than those for which records are maintained under subdivision (b), between the distributor, person who sells at wholesale, or manufacturer and wholesale customers.
Other records that the director may deem necessary for the proper enforcement of this chapter.
The director shall have access to, and may enter at all reasonable hours, any place where any dairy product is being processed, bottled, stored, kept, or sold, or where the books, papers, records, or documents pertaining to any transaction which relates to any dairy product is kept. He may inspect and copy such books, papers, records, or documents in any place within the state.
Within 60 days of the effective date of this section, each manufacturing milk handler shall provide the director with a list of the name, address, and date of every current contract between the handler and manufacturing milk producers. Monthly thereafter, the handler shall report to the director the same information on all terminated, new, and amended contracts which has not been previously reported. The director may assess a one hundred dollar ($100) penalty against any manufacturing milk handler who fails to file the required report for each report not filed.
Any record or report which is made to the director pursuant to this article, or any contract required to be filed pursuant to this chapter, is confidential and shall not be divulged, except if necessary for the proper determination of any court proceeding or hearing before the director.
ARTICLE 7. Investigations and Hearings [61471. - 61478.]
The director may, upon his or her own motion or upon the receipt of any verified complaint, investigate any transaction that involves the violation of any provision of this chapter by any person. The director may call and conduct a hearing in furtherance of that investigation.
If a hearing is called by the director, the director shall cause a copy of the complaint, together with a notice of time and place of hearing of the complaint, to be served personally or by mail upon that person. Service shall be made at least 10 days before the hearing.
The hearing shall be held in the city or place in which is situated the business location of the person that is complained of, or in which the transaction complained of is said to have occurred.
The person complained of shall, at least three days prior to the date fixed for the hearing, serve upon the complaining party and file with the director a verified answer to all the allegations which are contained in the complaint.
At the time and place which is appointed for such hearing the director shall hear the parties to such complaint, and shall enter in the office of the director at Sacramento a decision dismissing such complaint or specifying the facts which are established on such hearing. A copy of such decision shall be furnished to each of the respective parties to it.
The director may do any of the following:
Administer oaths and take testimony thereunder.
Issue subpoenas which require the attendance of witnesses before him, together with all books, memoranda, papers, and other documents, articles, or instruments.
Compel the disclosure by such witnesses of all facts which are known to them relative to the matters under investigation.
Any party that disobeys any order or subpoena of the director is guilty of contempt and shall be certified to the superior court of the state, in and for the county wherein such contempt occurs, for punishment for such contempt in accordance with Sections 11180 to 11191, inclusive, of the Government Code.
Any act of the director pursuant to any provision of this chapter may be reviewed by any court of competent jurisdiction.
ARTICLE 8. Manufacturing Milk Handler Licenses [61490. - 61494.]
For the purposes of this article, each subsidiary manufacturing milk plant, or branch manufacturing milk plant, whether under one ownership or not, shall be considered as an individual manufacturing milk handler.
“Manufacturing milk handler” means any person defined as a manufacturing milk handler pursuant to Section 61402.
It is unlawful for a manufacturing milk handler who is not licensed under Article 12 (commencing with Section 62141) of Chapter 2 to handle manufacturing milk without first obtaining a manufacturing milk handler’s license pursuant to this article. In addition, pursuant to Section 61490, any handler shall obtain a separate license for each milk plant owned or operated. The license provided for in this article is in addition to any license which is required by Division 15 (commencing with Section 32501), or by any law or ordinance of any county or municipality of this state.
Application for the license provided by this article shall be made on forms prescribed by the director, accompanied by an application fee as prescribed in Section 61494, and state the name and address of the applicant and any details specifically related to the nature of the applicant’s business that the director may require. The applicant shall further satisfy the director of his or her character, responsibility, and good faith in seeking to carry on the business stated in the application.
One-half of the valid license renewals shall be issued for a period of 24 months beginning January 1, 1988. The application fee for the renewal of the 24-month license shall be twenty-five dollars ($25).
The remaining valid license renewals shall be issued for a period of 12 months beginning January 1, 1988. The application fee for the renewal of the 12-month license shall be twelve dollars and fifty cents ($12.50).
Beginning January 1, 1989, all renewals of licenses shall be issued for a 24-month period, and shall be twenty-five dollars ($25).
Except as otherwise provided, beginning January 1, 1988, every new license issued shall expire on the 31st day of December of the following year.
Application for a new license or a renewal license, together with the appropriate application fee, shall be made prior to the handling of manufacturing milk or the expiration date of the license held. If it is not so made, the applicant shall pay an additional twenty-five dollars ($25) before the license shall be issued.
ARTICLE 9. Disposition and Use of Funds [61531. - 61531.]
All money received by the director pursuant to this chapter shall be paid monthly into the State Treasury to the credit of the Department of Food and Agriculture Fund. Funds which are so collected may only be used to defray the expenses in connection with the administration of this chapter, Chapter 2 (commencing with Section 61801), and Chapter 2.5 (commencing with Section 62500).
ARTICLE 10. Actions and Penalties [61571. - 61573.]
The violation of any provisions of this chapter is a misdemeanor which is punishable by a fine not less than one hundred dollars ($100) and not exceeding one thousand dollars ($1,000) or by imprisonment in a county jail not exceeding six months, or by both such fine and imprisonment. The amount of penalty which is assessed pursuant to this section on each count of violation shall be based upon the nature of the violation and the seriousness of the effect of such violation upon effectuation of the purposes and provisions of this chapter.
Any person who violates this chapter, or any regulations adopted under this chapter, is liable civilly in an amount not less than one hundred dollars ($100) and not exceeding one thousand dollars ($1,000) for each and every violation, that sum to be recovered by the director in any court of competent jurisdiction. The amount of penalty which is assessed pursuant to this section on each count of violation shall be based upon the nature of the violation and the seriousness of the effect of the violation upon effectuation of the purposes and provisions of this chapter. The court may, in addition to the civil penalty, award reasonably incurred investigative and enforcement costs, and attorney’s fees, to the director. The court may also award attorney’s fees to any person successfully defending a civil action under this section. In any civil action initiated by the director under this section, the director shall join in the action, and assert civil penalties against, all parties participating in the commission of the unlawful practice. Any sum which is recovered under this section shall be deposited in the State Treasury to the credit of the Department of Food and Agriculture Fund.
The director may bring an action to enjoin the violation or the threatened violation of any provision of this chapter or of any order which is made pursuant to this chapter in the superior court in the county in which such violation occurs or is about to occur. There may be enjoined in one proceeding any number of defendants alleged to be violating the same provisions or orders, although their properties, interests, residences, or places of business may be in several counties and the violations separate and distinct. Any proceeding which is brought pursuant to this section shall be governed in all other respects by the provisions of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure.
CHAPTER 2. Stabilization and Marketing of Market Milk [61801. - 62403.]
ARTICLE 1. Legislative Declarations [61801. - 61812.]
The production of market milk is hereby declared to be a business affected with a public interest. The provisions of this chapter are enacted in the exercise of the police powers of this state for the purpose of protecting the health and welfare of the people of this state.
The Legislature hereby declares all of the following:
Market milk is a necessary article of food for human consumption.
The production and maintenance of an adequate supply of healthful market milk of proper chemical and physical content, free from contamination, is vital to the public health and welfare, and the production, transportation, processing, and storage of market milk in this state is an industry affecting the public health.
Because of the perishable quality of milk, the nature of milk production, the varying seasonal production and demand factors, and other economic factors affecting the milk industry, the potential exists for economic disruption, in the absence of regulation, in the production, marketing, and sale of market milk which may constitute a menace to the health and welfare of the inhabitants of this state and may tend to undermine sanitary regulations and standards of content and purity, however effectually the sanitary regulations may be enforced.
Health regulations alone are insufficient to prevent economic disturbances in the production of milk which may disrupt the future supply of market milk and to safeguard the consuming public from future inadequacy of a supply of this necessary commodity.
It is the policy of this state to promote, foster, and encourage the intelligent production and orderly marketing of commodities necessary to its citizens, including market milk, and to eliminate economic waste, destructive trade practices, and improper accounting for market milk purchased from producers.
It is recognized by the Legislature that the economic factors concerning the production, marketing, and sale of market milk in California may be affected by the national market for milk for manufacturing purposes.
It is recognized by the Legislature that in recent years the supply of manufacturing milk in California, as defined in Section 32509, has consistently declined and continues to decline, and that market milk has virtually supplanted manufacturing milk for manufacturing purposes in this state, and that it is therefore necessary to conform the pricing standards governing minimum producer prices for market milk established under this chapter to current economic conditions.
It is recognized by the Legislature that the levels of retail prices of milk and milk products paid by consumers are affected by a large number of economic and other factors apart from minimum producer prices for market milk established under this chapter, many of which factors are not within the power of the director to regulate or control, particularly since the Legislature repealed provisions concerning establishment of minimum wholesale and retail prices. It is further recognized by the Legislature that, in order to accomplish the purposes of this chapter and to promote the public health and welfare, it is essential to establish minimum producer prices at fair and reasonable levels so as to generate reasonable producer incomes that will promote the intelligent and orderly marketing of market milk in the various classes, and that minimum producer prices established under this chapter should not be unreasonably depressed because other factors have affected the levels of retail prices paid by consumers.
It is recognized by the Legislature that conditions within the milk industry of this state are such that it is necessary to establish marketing areas wherein different prices and regulations are necessary, and for that purpose the director shall have the administrative authority, with such additional duties as are herein prescribed, after investigation and public hearing, to prescribe such marketing areas and modify the same when advisable or necessary.
The foregoing statements in this article of facts, policy, and application of this chapter are hereby declared a matter of legislative determination.
The purposes of this chapter are to do all of the following:
Provide funds for administration and enforcement of this chapter, by assessments to be paid by producers and handlers of market milk in the manner prescribed in this chapter.
Authorize and enable the secretary to prescribe marketing areas and to determine minimum prices to be paid to producers by handlers for market milk that are necessary due to varying factors of costs of production, health regulations, transportation, and other factors in the marketing areas of this state. In determining minimum prices to be paid producers by handlers, the secretary shall endeavor under like conditions to achieve uniformity of cost to handlers for market milk within any marketing area. However, no minimum prices established or determined under this chapter shall be invalid because uniformity of cost to handlers for market milk in any marketing area is not achieved as a result of the minimum producer prices so established or determined.
Authorize and enable the secretary to formulate stabilization and marketing plans, subject to the limitations prescribed in this chapter with respect to the contents of the stabilization and marketing plans, and to declare the plans in effect for any marketing area.
Enable the dairy industry, with the aid of the state, to develop and maintain satisfactory marketing conditions, bring about and maintain a reasonable amount of stability and prosperity in the production of market milk, and provide means for conducting educational and research activities.
It is the intent of the Legislature that the powers conferred in this chapter shall be liberally construed.
Nothing in this chapter permits or authorizes the development of conditions of monopoly in the production of market milk. In the establishment of the terms and conditions under which market milk shall be purchased from producers, the terms and conditions are those which will, in the several localities and markets of the state, and under the varying conditions of production, insure an adequate and continuous supply of pure, fresh, wholesome market milk to consumers of the market milk.
The Legislature hereby declares that this chapter is intended to formulate a comprehensive scheme for the regulation of marketing milk. If, however, any provision of, or addition or amendment to, this chapter, either as originally enacted in 1935 at the 51st Regular Session of the California Legislature, or as amended, added to, recodified, or reenacted at any subsequent session of the California Legislature, should be held to be unconstitutional, the unconstitutionality of such provision does not affect any other provision of this chapter.
If any article, section, subdivision, sentence, clause, or phrase of any provision of this chapter is for any reason held to be unconstitutional, such decision does not affect the validity of the remaining provisions of this chapter. The Legislature hereby declares that it would have enacted each article, section, subdivision, sentence, clause, or phrase of this chapter irrespective of the fact that one or more other articles, sections, subdivisions, sentences, clauses, or phrases is declared unconstitutional.
Chapter 1 (commencing with Section 61301), Chapter 2.5 (commencing with Section 62500), and Chapter 3 (commencing with Section 62700) shall be liberally construed as being complementary of, and supplemental to, this chapter, and these chapters shall constitute a single comprehensive scheme for the regulation of the production and handling of market milk. However, each of the chapters, and each article, section, subdivision, sentence, clause, and phrase of each chapter is severable.
If one of the chapters or any article, section, subdivision, sentence, clause, or phrase of any one of the chapters is for any reason held void, invalid, or unconstitutional, the decision shall not affect the validity of the other chapter or any of its articles, sections, subdivisions, sentences, clauses, or phrases.
No provision of this chapter, or of any stabilization and marketing plan formulated by the director pursuant to this chapter, is any limitation upon the right of any handler or producer-handler including any nonprofit cooperative association of producers which association is also a handler, by reason of the form or nature of the legal entity under which such handler conducts business, to sell or handle market milk, or any dairy product at prices or upon terms and conditions according to, and within, the several methods of handling, at or subject to which the market milk or dairy product lawfully may be sold or handled by any other handler.
This section does not make lawful or permit the payment by any such handler to a producer for market milk of prices less than the minimum prices prescribed in the applicable stabilization and marketing plan.
Neither the repeal of former Chapter 2 of this part, the reenactment of this chapter nor the amendment of any provision of this chapter shall have the effect of terminating or invalidating any stabilization and marketing plan, including provisions thereunder regarding minimum prices to be paid producers for market milk, established by the director pursuant to this chapter or former Chapter 2 prior to the effective date of the repeal, enactment, or amendment. The director shall, however, establish minimum prices pursuant to the provisions of the enactment, or amendment at the earliest practicable date after the effective date of the amendment.
ARTICLE 2. Definitions [61821. - 61839.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Board” means any advisory board created as authorized in this chapter.
“Bulk market milk” means market milk which has not been pasteurized or packaged in bottles, cartons, dispenser cans, or other consumer packages, and is handled or delivered, in bulk, in tanks, cans, or other bulk containers.
“Consumer” means any person that purchases market milk, or any dairy product for consumption.
“Dairy product” or “milk product” includes any product manufactured from milk or any derivative or product of milk.
“Handler” means any person who, as owner, agent, broker, or intermediary, either directly or indirectly, receives, purchases, or otherwise acquires ownership, possession, or control of market milk in unprocessed or bulk form from a producer, a producer-handler, or another handler for the purpose of manufacture, processing, sale, or other handling, regardless of whether such market milk is produced within or outside this state.
“Market cream” means cream, as defined in this code, and any combination of cream and milk, or any fluid product of milk or cream sold under any trade name whatsoever, which complies with all of the following requirements:
Is not packaged in hermetically sealed containers.
Conforms to the health and sanitary regulations of the place where it is sold or disposed of for human consumption.
“Market milk” has the meaning of that term as defined in Section 32510 and has the same meaning as “restricted use market milk” as defined in Section 32516.5. Unless the context otherwise indicates, “market milk” includes market cream, the components and derivatives of market milk, and dairy products manufactured from market milk or its components and derivatives.
“Market skim milk” means skim milk, as defined in this code, that is derived from market milk and conforms to the health and sanitary regulations of the place where sold or disposed of for human consumption.
“Marketing area” is any area within this state declared to be such in the manner that is prescribed in this chapter.
“Milk” has the meaning of that term as defined in Section 32511.
“Milk used for manufacturing purposes” means all milk used for those products defined in Part 3 (commencing with Section 36601) of Division 15.
“Milk plant” means any place, structure, or building where a handler receives market milk.
“Packaged market milk” or “packaged market cream” means market milk or market cream respectively, which is packaged in cartons, bottles, dispenser cans, or other consumer packages, for sale to wholesale customers, or consumers.
“Person” means any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, nonprofit cooperative association, nonprofit corporation, or any other business unit or organization.
“Processing” means receiving, pasteurizing, and packaging market milk. It includes the manufacturing of milk products from market milk.
“Producer” means any person that produces market milk from five or more cows in conformity with the applicable health regulations of the place in which it is sold, and whose bulk market milk is received, acquired, or handled by any handler or any nonprofit association of producers. It includes the nonprofit cooperative associations described in Article 3 (commencing with Section 61871) of this chapter in the transactions in which such article provides that the associations are producers.
“Producer-handler” means any person that is both a producer and a handler of market milk. For the purposes of this chapter a producer-handler is a producer in any transaction which involves the sale or delivery of bulk market milk which was produced by him to a handler or to any nonprofit cooperative association of producers, and is a handler in any transaction which involves the purchase, acquisition or receipt by him of market milk, the pasteurization or packaging of market milk, or the sale or delivery of packaged market milk to any person.
“Stabilization and marketing plan” means any plan formulated and made effective by the director within the legislative standards provided by this chapter. It includes, among other things, the establishing of prices to be paid by handlers for any or all of the various classes of market milk.
“Wholesale customer” means any person except a distributor that buys packaged milk, cream, or any dairy product for resale to consumers or to other wholesale customers.
ARTICLE 3. Nonprofit Cooperative Associations [61871. - 61873.]
For the purposes of this chapter, a nonprofit cooperative association organized and existing under Chapter 1 (commencing with Section 54001) of Division 20, that acts for producers, including members and any nonmembers of the association, to whom it accounts on a patronage basis, is a producer in any of the following transactions:
Any transaction which involves its receipt or handling of bulk market milk produced or delivered by such producers.
Any transaction which involves the sale or delivery of bulk market milk to any producer, handler, or manufacturer, or other nonprofit cooperative association of producers.
The receipt by it of payment for bulk market milk, packaged market milk, or any other product of market milk produced or delivered by such producers.
Any transaction in connection with accounting to such producers for the proceeds derived from the sale or marketing of bulk market milk, packaged market milk, or any other product of market milk produced or delivered by such producers.
For the purposes of this chapter, a nonprofit cooperative association organized and existing under Chapter 1 (commencing with Section 54001) of Division 20, that acts for producers, including members and any nonmembers of the association, to whom it accounts on a patronage basis, is a handler in any transaction which involves the receipt by it of market milk from any person other than a producer to whom it accounts on a patronage basis and in any transaction which involves the pasteurization of bulk market milk or the packaging of it in bottles, cartons, dispenser cans, or other consumer packages, or the sale or delivery of packaged market milk.
A nonprofit cooperative association accounts to producers on a patronage basis when it accounts to each producer for his share of the net proceeds derived from the marketing operations of the association, according to quantity and quality of market milk furnished to the association for marketing and according to any marketing pools and quotas established by the association.
ARTICLE 4. Administration [61891. - 61904.]
The director shall enforce the provisions of this chapter and of any stabilization and marketing plan initiated pursuant to the provisions of this chapter. The director shall adopt those regulations necessary for the proper administration and enforcement of the provisions of this chapter.
The director shall have and may exercise any or all the powers conferred by the Government Code upon the head of a department of the state with respect to hearings and investigations under this chapter.
The director is the instrumentality of this state for the purpose of administering and enforcing the provisions of this chapter and to execute the legislative intent expressed in this chapter, and is hereby vested with the administrative authority described in this chapter. Notwithstanding other laws to the contrary, in the event a milk marketing order under the jurisdiction of the United States Department of Agriculture or other appropriate federal agency, is created by referendum or under the applicable laws and procedures relating thereto, in this state or in any geographical area within this state, the provisions of this chapter or any part thereof which is in conflict with such federal order, or which is unnecessary or is a duplication thereof, shall be suspended in the geographical area covered by and during the existence of such federal order. The director shall take such steps and procedures as are necessary to wind up and conclude the administration and enforcement of the provisions of this chapter, or any part thereof, for the period prior to the suspension date.
For the purposes of enforcing this chapter, the director may investigate any and all transactions, between producers and handlers, between nonprofit cooperative associations and producers, among handlers, or between handlers and wholesale customers, among wholesale customers, between handlers and consumers, or between wholesale customers and consumers. For that purpose, the director shall have access to, and may enter at all reasonable hours, any place where market milk is being stored, bottled, or manufactured, where market milk or any market milk product is being bought, sold, or handled, or where the books, papers, records, or documents which relate to those transactions are kept. He may inspect and copy those books, papers, records, or documents in any place within the state.
The director may require the registration of producers.
The director may formulate any stabilization and marketing plan as prescribed in this chapter and declare it effective after public hearing and reasonable notice by mail or otherwise to all producers, handlers, and consumer organizations who have filed requests with the director or the Director of Consumer Affairs.
A full and accurate record of business or acts performed, or of testimony taken, by the director pursuant to this chapter shall be kept and placed on file in the office of the director.
In addition to the compilation of information which pertains to market milk from the reports required by this chapter, the director shall collect, assemble, compile, and distribute statistical data relative to market milk, other milk and milk products, and such other information as may relate to the dairy industry and the provisions of this chapter.
Any order of the director made pursuant to this chapter which substantially affects the rights of any interested party may be reviewed by any court of competent jurisdiction. Any such action shall be commenced within 30 days after the effective date of the order complained of, or within 30 days after the injurious effect complained of becomes reasonably apparent.
The director may confer, enter into agreements, or otherwise arrange with the constituted authorities of this state, other states, or agencies of the United States with respect to plans which relate to the stabilization and distribution of market milk within this state or as between this state and other states or the United States, and may exercise his powers pursuant to this chapter to effectuate and enforce such plans.
All money received by the director pursuant to this chapter shall be paid monthly into the State Treasury to the credit of the Department of Food and Agriculture Fund. Funds which are so collected may only be used to defray expenses in connection with the administration of this chapter, Chapter 1 (commencing with Section 61301), and Chapter 2.5 (commencing with Section 62500).
If the director determines that it is probable that one or more factors or conditions which affect prices of market milk have changed on a relatively uniform basis throughout two or more marketing areas, he may consolidate the hearings on the matter of price changes for such areas. No price change shall be made as a result of such a consolidated hearing unless the amount of the change or the resulting prices are uniform throughout the areas which are affected.
Any person who has testified under oath at a public hearing held by the director pursuant to this chapter may be granted, upon request prior to the close of the hearing, a period of time not to exceed 10 calendar days following the closing date of the public hearing, in which to file with the director a written posthearing brief in amplification, explanation, or withdrawal of that person’s testimony. Any such posthearing brief shall be made available by the director to any interested person for inspection. Except as herein provided, the director, in formulating any stabilization and marketing plan, pursuant to this chapter, following a public hearing, shall not accept or consider any posthearing brief. Nothing in this section shall require the director to prepare, or to make available, any verbatim transcript or other record or summary of the hearing within the 10-calendar-day period referred to in this section. However, any verbatim transcript or other record or summary of the hearing prepared for or by the director shall be made available to any interested party for inspection at the office of the director in Sacramento and, upon reasonable request, at the regional office of the director nearest the location at which the public hearing was held.
Any provisions of a stabilization and marketing plan formulated, established, or rejected by the director pursuant to this chapter, shall be accompanied by written statements, which shall be made available by the director to any interested person upon request, stating in substance the considerations upon which such plan provisions and minimum prices are based, or upon which such provisions and prices were rejected.
ARTICLE 5. Classes of Market Milk [61931. - 61937.]
Market milk may be classified for the purposes of this chapter as provided in this article.
Class 1 comprises:
Any market milk, market skim milk, half-and-half, or concentrated milk that is supplied to consumers in the fluid state, with the exception of the following:
Any UHT market milk product, as defined in Chapter 9 (commencing with Section 39701) of Part 3 of Division 15, that is sold for use outside the state.
Any market milk products that are ultrapasteurized and sold for use outside the 48 contiguous states in the United States.
Any market half-and-half that is ultrapasteurized and packaged in hermetically sealed containers.
Any market half-and-half that is packaged in presterilized containers under aseptic conditions to meet the marketing requirements for these products in states other than this state. However, this paragraph does not authorize the sale within this state of any milk product as a UHT product unless the product meets the standards and requirements for UHT products specified in Chapter 9 (commencing with Section 39701) of Part 3 of Division 15.
Any market milk, market skim milk, or market cream that is used in any other milk product, or products resembling milk products, in which the use of market milk, or any components or derivatives of market milk, is required by, or pursuant to, this code, except any product defined in Section 61933 as class 2.
Any market milk, market skim milk, market cream, market milk fat, or market milk solids-not-fat that is used in the standardizing or fortifying of any milk product that is defined in this section as class 1.
Any market milk, market skim milk, or market cream that is used in any product not otherwise classified, which is required by any regulations adopted by the director pursuant to Article 2 (commencing with Section 36631) of Chapter 1 of Part 3 of Division 15 to be made from market milk or any components or derivatives of market milk.
Any market milk, market skim milk, market cream, market milk fat, or market milk solids-not-fat used in any filled product or imitation milk product, when the product imitated or resembled, is defined in this section as class 1.
Class 2 comprises any market milk, market skim milk, or market cream used in the manufacture of market cream, homogenized market cream, sour cream, sour cream dressing, sour half-and-half or light sour cream, uncreamed, creamed, or partially creamed cottage cheese, soft fresh cheese (fromage frais), buttermilk, kefir, and yogurt. Class 2 also comprises any market milk, market skim milk, or market cream used in the manufacture of any product for which a definition and standard is prescribed in Division 15 (commencing with Section 32501), except any product that is included in class 1, class 3, class 4a, or class 4b.
Class 3 comprises all market milk, market skim milk, or market cream used in the manufacture of frozen dairy products.
Class 4a comprises all market milk, market skim milk, or market cream used in the manufacture of butter, dried milk, dried skim milk, nonfat dry milk solids, defatted milk solids, dried buttermilk, and all market milk, market skim milk, or market cream which is supplied to consumers as condensed milk, condensed skim milk, evaporated skim milk, evaporated cream or clotted cream, or evaporated milk, and any milk products which are UHT products, as defined in Chapter 9 (commencing with Section 39701) of Part 3 of Division 15, or ultrapasteurized, and sold for use outside of the 48 contiguous states in the United States, or yogurt, soft fresh cheese (fromage frais), uncreamed, creamed, or partially creamed cottage cheese, sour cream, sour half-and-half, or light sour cream which is sold for use outside the boundaries of the United States, or any product for which no definition and standards are prescribed in Division 15 (commencing with Section 32501), except the products defined in paragraph (2) of subdivision (a) of Section 61932.
Class 4b comprises all market milk, market skim milk, or market cream used in the manufacture of cheese other than cottage cheese.
If the director establishes a temporary definition and standards for any new milk product pursuant to Article 2 (commencing with Section 36631), Chapter 1, Part 3 of Division 15, he shall assign such new product to that class under this article which includes the most nearly comparable product as determined by the director.
Market milk, market skim milk, or market cream, utilized in bulk by handlers as condensed milk, condensed skim milk, evaporated skim milk, evaporated cream or clotted cream, or evaporated milk, shall be assigned by the director to the classification of ultimate usage of such market milk, market skim milk, or market cream.
ARTICLE 6. Marketing Areas [61961. - 61963.]
The director shall designate marketing areas which he deems necessary or advisable to effectuate the purposes of this chapter, and in which he finds the conditions affecting the production, handling, and sale of market milk, are reasonably uniform.
The director may establish additional areas, or modify areas previously established, if he deems the establishment or modification of such areas necessary or advisble to effectuate the purposes of this chapter.
If the director finds, after a public hearing in and for each particular marketing area under consideration for consolidation, that conditions of production and handling are reasonably uniform in two or more such marketing areas in which stabilization and marketing plans are in effect, he may consolidate the areas.
ARTICLE 7. Formation and Adoption of Stabilization and Marketing Plans [61991. - 61998.]
Except as otherwise provided in Section 61992, the director shall, prior to the formulation of a stabilization and marketing plan for market milk for any marketing area, conduct a public hearing in the area for the purpose of determining whether or not the formulation of a stabilization and marketing plan for market milk for such area is desired by producers whose major interest in the market milk business is in the production of market milk for the marketing area and that both:
Represent not less than 65 percent of the total number of producers whose major interest in the market milk business is in the production of market milk for the marketing area.
Produce not less than 65 percent of the total volume of the market milk produced for the marketing area by all such producers.
A hearing need not, however, be held if a petition requesting a stabilization and marketing plan is presented to the director by the producers whose major interest in the market milk business is in the production of market milk for the marketing area, and that both:
Represent not less than 65 percent of the total number of producers whose major interest in the market milk business is in the production of market milk for the marketing area.
Produce not less than 65 percent of the total volume of the market milk produced for the marketing area by all such producers.
If the director finds that a stablization and marketing plan is necessary to accomplish the purposes of this chapter, he shall formulate a stabilization and marketing plan for market milk for such area and issue a notice of public hearing upon the plan which is formulated to all producers and handlers of record with the department that may be subject to the provisions of such plan.
The notice of the hearing may be effected by mail, or by publication pursuant to Section 6062 of the Government Code in the area which is designated. It shall specify the time and place of such hearing, which shall not be prior to 15 days from the mailing, or from the final publication of such notice. If no daily newspaper of general circulation is published in the area which is designated, publication pursuant to Section 6066 of the Government Code shall be considered proper publication of notice.
At the hearing, interested parties shall be heard and records kept of the proceedings of such hearing for determination by the director whether the plan proposed will accomplish the purposes of this chapter.
If, after the public hearing, the director determines that the proposed plan will tend to accomplish the purposes of this chapter within the standards which are prescribed in it, he or she shall issue an order to all producers and handlers of record with the department and subject to the provisions of the plan, declaring the plan in effect within 62 days from the date of the hearing. The director shall announce any order under this section at least 10 calendar days prior to the effective date of the plan.
A handler that is subject to the provisions of any stabilization and marketing plan shall not purchase milk from any producer that does not comply with this chapter and such plan.
No stabilization or marketing plan shall contain provisions the purposes of which are to establish limitations upon the production of market milk.
ARTICLE 8. Amendment and Termination of Stabilization and Marketing Plans [62031. - 62032.]
The director may amend or terminate any stabilization and marketing plan, after notice and public hearing as prescribed in Article 7 (commencing with Section 61991), if he or she finds that the plan is no longer in conformity with the standards which are prescribed in, or will not tend to effectuate the purposes of, this chapter. Any order under this article amending or terminating any stabilization and marketing plan shall be subject to Section 61996.
A hearing on the amendment or termination of a stabilization and marketing plan may be held upon the motion of the director and shall be held upon receipt of a petition which is signed by producers, or by the board of directors of any nonprofit agricultural cooperative marketing association which is authorized by its members to so petition. Such petition shall represent not less than 55 percent of the total number of all producers and not less than 55 percent of the total production of all producers that are eligible to petition the director for the formulation of such a plan.
ARTICLE 9. Establishment of Minimum Prices and Provisions of Stabilization and Marketing Plans [62061. - 62079.]
Each stabilization and marketing plan shall contain provisions for prohibiting producers and handlers from engaging in the unlawful trade practices applicable to them that are set forth in Article 10 (commencing with Section 62091) of this chapter.
Each stabilization and marketing plan shall contain provisions whereby the director establishes minimum prices to be paid by handlers to producers for market milk in the various classes. The director shall establish the prices by designating them in the plan, or by adopting methods or formulas in the plan whereby the prices can be determined, or any combination of the foregoing. If the director directly designates prices in the plan, the prices shall be in reasonable and sound economic relationship with the national value of manufactured milk products. If the director adopts methods or formulas in the plan for designation of prices, the methods or formulas shall be reasonably calculated to result in prices that are in a reasonable and sound economic relationship with the national value of manufactured milk products.
In establishing the prices, the director shall take into consideration any relevant economic factors, including, but not limited to, the following:
The reasonableness and economic soundness of market milk prices for all classes, giving consideration to the combined income from those class prices, in relation to the cost of producing and marketing market milk for all purposes, including manufacturing purposes. In determining the costs, the director shall consider the cost of management and a reasonable return on necessary capital investment.
That prices established pursuant to this section shall insure an adequate and continuous supply, in relation to demand, of pure, fresh, wholesome market milk for all purposes, including manufacturing purposes, at prices to consumers which, when considered with relevant economic criteria, are fair and reasonable.
That prices, including the prices of components of milk, established by the director for the various classes of market milk bear a reasonable and sound economic relationship to each other.
In establishing the prices, the director shall also take into consideration all the purposes, policies, and standards contained in Sections 61801, 61802, 61805, 61806, 61807, 62076, and 62077.
Any designation of a class 1 price by any method or formula that is used to develop class 1 prices paid to producers in the various marketing areas, shall provide, on a calendar year basis, a statewide weighted average minimum price level for a hundred weight of milk testing 3.5 fat and 8.7 solids not fat that is in reasonable relationship with minimum class 1 milk prices paid to producers in contiguous states. If the statewide weighted average class 1 prices paid to producers are not in a reasonable relationship with the class 1 prices paid to producers in contiguous states, the secretary shall immediately hold a hearing to consider adjustments to the class 1 prices.
The minimum prices otherwise established pursuant to this chapter shall be increased by any security charges that are imposed pursuant to Chapter 2.5 (commencing with Section 62500).
Subject to the provisions of Sections 62074 and 62075, each stabilization and marketing plan shall contain provisions whereby the director shall provide methods for the establishment of minimum prices for market milk received within a marketing area regardless of whether the milk is subsequently sold or distributed within or without the marketing area within the jurisdiction of this state, and may contain the provisions whether or not the market milk is subsequently sold or distributed outside the jurisdiction of this state.
Each stabilization and marketing plan shall provide all of the following:
For the establishment of prices for market milk, whether or not such market milk is subsequently sold or distributed in another marketing area within this state where a stabilization and marketing plan is in effect.
That, if area of usage pricing is in effect, producers shall be paid not less than the minimum prices established for the marketing area wherein such market milk is ultimately sold or distributed.
That, if area of usage pricing is in effect and such market milk is subsequently sold or distributed in any place within the jurisdiction of this state where no stabilization and marketing plan is in effect, such market milk shall be paid by the handler to the producer at not less than the average of prices which are paid by handlers, whose plants are located within such area, to producers for market milk. If, however, no plants are located within such area, the price which shall be paid by the handler to the producer shall not be less than the average of prices which are paid by handlers to producers for market milk, at the plants in the nearest marketing areas adjacent to the area where such market milk is sold or distributed, as established by the stabilization and marketing plans in effect in such adjacent marketing areas.
No amendment of this article terminates or invalidates any provision of any stabilization and marketing plan which has been established by the director prior to the effective date of such amendment. Each such plan shall, however, be brought into conformity with such amendment at the earliest practicable date after the effective date of such amendment.
Notwithstanding any other provision of this code to the contrary, the director, in establishing minimum prices to be paid by handlers to producers, for market milk in any marketing area, may establish, as the applicable minimum prices, those prices applicable within the marketing area of ultimate usage of such market milk, those prices applicable within the marketing area where the plant of first receipt of such market milk is located, those prices applicable in the marketing area where the producers place of production is located, or any of the above or any combination of the above.
Each stabilization and marketing plan may contain provisions which require handlers to report to each producer from whom market milk is secured all of the following:
The volume of market milk received from such producer in pounds of milk.
The milk fat, solids-not-fat, or other component tests of such milk.
The amount of market milk in pounds of milk fat, solids-not-fat or other components paid for in the several classes or pools.
The prices paid for the various classes for each month.
Each stabilization and marketing plan may contain provisions which authorize any handler that purchases market milk under contract from any producer to pool such market milk for producer payment purposes in accordance with such contracts, irrespective of whether such market milk is actually and physically received at the same milk products plant or diverted, in accordance with such plan. Such provisions may do any of the following:
Provide that market milk that is received from producers by milk products plants under the same ownership, may be pooled for purposes of payment to producers.
Provide that if a handler pools market milk, as provided in subdivision (a), the handler shall allocate, among all producers that participate in the class 1 usage, transportation savings which are applicable to market milk, not actually transported between the plant of first receipt and one or more other plants subject to the pool, and used for class 1, and may pay to producers shipping market milk directly to a plant subject to the pool a price for usage of such market milk for class 1, which price represents the average of minimum producer prices payable by that particular plant for such class 1 usage.
The director may establish minimum prices to be paid by handlers to producer-handlers for milk not used by the purchasing handler as class 1 milk. These provisions may provide that the milk, if used in classes other than class 1 by the purchasing handler, may be paid for at the minimum prices established by the director for this other usage but which shall not be less than the prices as found by the director to be paid by manufacturing milk plants in, or adjacent to, the area that use milk for similar purposes. The prices shall remain in effect only for the period during which, as determined by the director, there is a surplus of producer-handler milk.
Each stabilization and marketing plan may further provide for maximum charges for plant processing and transportation service on the market milk or market milk components which are transported to the area where sold. The stabilization and marketing plan may enumerate the applicable maximum charges, and may establish individual charges for each function enumerated. In establishing any such maximum charges for such transportation services, the director shall base such maximum charges upon the rates which are charged for actual or reasonably similar services by highway carriers, as the term “highway carriers” is defined in Secton 3511 of the Public Utilities Code.
Each stabilization and marketing plan may provide for minimum charges for the various services performed or rendered by a nonprofit cooperative association in respect to class 1 market milk sold or delivered to another handler. Handler services include component testing for payment purposes, quality control, producer payroll, weighing and sampling of bulk market milk. Each stablization and marketing plan may also include, but not be limited to, minimum charges for the handling of intermittent or irregular deliveries of market milk and plant standby services. The stabilization and marketing plan may enumerate applicable minimum charges and establish individual charges for each service enumerated or, in the alternative, the director may establish one or more minimum charges covering one or more of the separate handler services.
In establishing minimum handler service charges under Section 62071, the director shall take into consideration all relevant factors, including, but not limited to, the following:
The reasonably necessary costs of providing such services, including overhead, as determined by impartial cost surveys, examination of books and records, or both, of such portions of those handlers within the marketing area as are reasonably determined by the director to be sufficiently representative to indicate such costs of all reasonably efficient handlers within such marketing area.
The relationship of the establishment of such minimum charges to the achievement and maintenance of the orderly marketing of market milk and to the effectuation of the purposes of this chapter.
If any contract between a handler and a producer for the purchase of any market milk provides that the charges for the hauling of it shall be paid, in whole or in part, by the producer, and such hauling is done by the handler either directly or through an agent or by any person that contracts with, or is designated by, such handler for such hauling, the director may, and upon the written request of the producer or the written request of any association representing the producer shall, investigate the rates, terms, and conditions which are involved in such hauling in order to determine whether such rates, terms and conditions are in compliance with Section 62070.
If the director determines that such rates, terms, and conditions are not in compliance with Section 62070, he shall determine, within the standards which are prescribed in Section 62070, the maximum charges on account of such hauling that will comply with Section 62070 with respect to such purchase of market milk.
If the director establishes a stabilization and marketing plan for market milk, the director shall establish minimum prices to be paid by handlers for market cream, market skim milk, or milk fat, or market skim milk components of such market milk.
A stabilization and marketing plan may contain provisions necessary to encourage the availability of market milk for those usages for which class 1 and class 2 milk is mandatory.
The director shall establish the minimum prices to be paid by handlers to producers for class I usage of market milk upon a milk fat, solids-not-fat or the subcomponents thereof, and fluid carrier basis. In establishing the minimum prices for classes of market milk other than class I, separate prices may be established for any one or more of the following:
The milk fat contained in such milk.
The solids-not-fat or subcomponents thereof contained in such milk.
The fluid contained in such milk.
Any combination of the milk fat, the solids-not-fat or subcomponents thereof, or the fluid contained in such milk.
In establishing prices to be paid by handlers to producers for class 2, class 3, class 4a, or class 4b market milk, the director shall take into consideration any relevant economic factors, including, but not limited to, the following:
The relative market value of the various products yielded from such market milk.
The market price of other milk which may be used for the same purposes that are set forth in such respective classes.
The value of milk used for manufacturing purposes giving consideration to any relevant factors including, but not limited to, product prices, product yields, and manufacturing costs of class 4a or class 4b.
A handler shall not pay any producer less than the applicable price established for the usage to which the market milk, purchased from him is applied pursuant to accounting procedures established by the director. If the market milk is not applied to any purpose set forth in Article 5 (commencing with Section 61931), then a handler shall not pay any producer less than the lower of the prices established under the applicable stabilization and marketing plan for class 4a and class 4b usage.
All handlers who receive market milk within this state shall be obligated to pay minimum producer prices established under this chapter regardless of the area of origin of such milk, whether inside or outside the jurisdiction of the State of California.
Whenever a pooling plan is in effect as provided in Chapter 3 (commencing with Section 62700) and Chapter 3.5 (commencing with Section 62750) of this part, all market milk received by pool handlers shall be obligated to the pool at the applicable minimum price established in the Stabilization and Marketing Plans based on the classified usage of that milk. Handlers may pay producers for restricted use market milk at prices that are less than the amount credited to those handlers for restricted use market milk by the pooling plan.
ARTICLE 10. Unlawful Trade Practices [62091. - 62095.]
The unlawful trade practices described in this article apply to every handler whether or not a stabilization and marketing plan is in effect in the area in which the handler is licensed or carries on his business. This article applies to transactions conducted, either directly or indirectly, between producers and handlers.
The payment, allowance, or acceptance of any secret rebate, secret refund, or unearned discount by any person, whether in the form of money or otherwise, is an unlawful trade practice.
The giving of any milk, cream, dairy product, service, or article of any kind, except to a bona fide charity, for the purpose of securing or retaining the market milk business of any customer is an unlawful trade practice.
The payment, gift, or the offer or promise of any payment or gift, of money or other thing of value, directly or indirectly, or through any agent or other intermediary, to any person with the purpose or design of inducing such person to become or remain the wholesale customer of any handler is an unlawful trade practice.
The payment, gift, or the offer or promise of any payment or gift, of money or other thing of value by any person, directly or indirectly or through any agent or other intermediary, to any handler or producer, or the acceptance by any handler or producer of the payment or gift or thing of value is an unlawful trade practice if it is for any of the following:
For the purpose of inducing a handler or producer to enter into a new contract, or to renew, extend, or modify an existing contract, for the purchase of market milk by a handler from a producer.
As a condition upon which a handler will enter into a new contract, or renew, extend, or modify an existing contract, for the purchase of market milk from a producer.
For the purpose of enabling a handler to pay to a producer, or a producer to receive from a handler, less than the minimum class usage prices established by the director to be paid by handlers to producers for market milk.
Nothing in this section prevents a handler from paying to a producer, or a producer from receiving from a handler, prices in excess of the minimum prices established by the director if these prices are paid to all producers supplying the handler under the same terms and conditions.
ARTICLE 11. Sales to the United States [62121. - 62121.]
The director may require that each person that submits a bid for the sale to an agency of the United States government of market milk or any milk product which utilizes class 1 market milk shall file with the director, at the same time such bid is submitted, a complete copy of such bid and the following certification:
“The undersigned certifies that in sales by the undersigned to agencies of the United States Government, pursuant to the attached bid, for market milk or milk products utilizing class 1 market milk, as such class 1 market milk is defined in Chapter 2 (commencing with Section 61801), Part 3, Division 21 of the Food and Agricultural Code, the undersigned is complying with all California statutes and regulations pertaining to the establishment and enforcement by the Director of Food and Agriculture of minimum prices to be paid producers for such class 1 market milk.”
All bids and certifications filed pursuant to this section shall be confidential and shall not be divulged except when necessary for the proper determination of any court proceeding or hearing before the director.
ARTICLE 12. Handlers’ Licenses [62141. - 62155.]
The licenses provided for in this article are required for each handler. For the purposes of this article, each subsidiary milk plant or branch milk plant, whether under one ownership or not, shall be considered as an individual handler.
No person who qualifies as a handler under Section 62142 shall deal in market milk without first obtaining a license from the director. In addition, any person qualifying as a handler who purchases or handles market milk or market cream for processing or manufacture shall obtain a license for each milk plant owned or operated. The license provided for in this article is in addition to any license which is required by Division 15 (commencing with Section 32501), or by any law or ordinance of any county or municipality of this state.
Notwithstanding the provisions of Section 61832, “milk plant” as used in this article, means any place, structure, or building where a handler receives market milk and weighs, tests, standardizes, pasteurizes, homogenizes, separates, bottles or packages such milk. “Milk plant” does not include a place, structure, or building which is used for the purpose of receiving, weighing, or testing milk to be diverted or delivered to a licensed milk plant of the handler.
Applications for the license provided by this article shall be made on forms prescribed by the director, accompanied by a fee as prescribed in Section 62145, and state the name and address of the applicant and any details specifically related to the nature of the applicant’s business that the director may require. The applicant shall further satisfy the director of his or her character, responsibility, and good faith in seeking to carry on the business stated in the application.
One-half of the valid license renewals shall be issued for a period of 24 months beginning January 1, 1988. The application fee for renewal of the 24-month license shall be twenty-five dollars ($25).
The remaining valid license renewals shall be issued for a period of 12 months beginning January 1, 1988. The application fee for the renewal of the 12-month license shall be twelve dollars and fifty cents ($12.50).
Beginning January 1, 1989, all renewals of licenses shall be issued for a 24-month period and shall be twenty-five dollars ($25).
Except as otherwise provided, beginning January 1, 1988, every new license issued shall expire on the 31st day of December of the following year.
Application for a new license or a renewal license, together with the appropriate application fee, shall be made prior to the handling of market milk or the expiration date of the license held. If it is not so made, the applicant shall pay an additional twenty-five dollars ($25) before the license shall be issued.
The director may refuse to grant or renew any license if he or she is satisfied that any applicant, or any person connected with the applicant, either directly or indirectly, has violated any of the following:
This chapter or any stabilization and marketing plan or other regulation adopted under this chapter.
Chapter 1 (commencing with Section 61301).
Chapter 3 (commencing with Section 62700) or any pooling plan established thereunder.
The director may also refuse to grant or renew any license to a handler if he is satisfied that the handler has failed to pay for any market milk delivered to him at the time and in the manner specified in the contract with the producer.
The proceedings to determine whether or not the director shall refuse to grant or renew a license shall be conducted in accordance with Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2 of the Government Code, and the director shall have all of the powers granted in such chapter.
The decision may include an order refusing to grant or renew the license applied for, or affixing other conditional and probationary orders that may be proper for the enforcement of any of the following:
This chapter or any stabilization and marketing plan formulated pursuant to this chapter.
Chapter 1 (commencing with Section 61301).
Any regulation duly adopted by the director pursuant to Section 61891.
Chapter 3 (commencing with Section 62700) or any pooling plan established thereunder.
After any decision in favor of the issuance or renewal of a license which includes any conditional or probationary orders, if the person to whom the license is issued does not comply with any such orders, the director may suspend or revoke the license in accordance with the procedure provided in Sections 62151, 62152, 62153, 62154, and 62155.
The director may revoke or suspend, as the case may require, any license which is issued pursuant to this chapter, if he or she is satisfied that any licensee or any person who is connected with the licensee has violated any of the following:
This chapter or any stabilization and marketing plan which is formulated pursuant to this chapter.
Any regulation which is adopted by the director pursuant to Section 61891.
Chapter 1 (commencing with Section 61301).
Chapter 3 (commencing with Section 62700) or any pooling plan adopted thereunder.
The proceedings shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the director shall have all the powers which are granted in that chapter.
The director may also revoke or suspend any license of a handler if he is satisfied that the handler has not paid for any market milk delivered to him at the time and in the manner specified in the contract with the producer.
The decision may include an order revoking or suspending the license held by the licensee, or affixing such other conditional and probationary orders as may be proper for the enforcement of this chapter or any provision of any stabilization and marketing plan formulated pursuant to the provisions of this chapter or of any regulation adopted by the director pursuant to Section 61891.
After any decision, which includes any conditional or probationary orders, if the respondent does not comply with any such orders, the director may suspend or revoke the license in accordance with the procedure which is provided in this article.
Whenever the director is satisfied, either by investigation or after a hearing, that a handler is unable to pay for any market milk purchased from any producer, and is further satisfied that to permit the handler to continue to purchase and receive any market milk from producers would be likely to cause serious and irreparable loss to producer-creditors and other producers, the director may thereupon and forthwith shorten the time for hearing that is provided for in Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2 of the Government Code, and thereupon may issue an order to show cause why the license of such handler should not be forthwith suspended or revoked. The time of notice of the hearing shall not, however, be less than five days. At such hearing the handler that is proceeded against shall be ordered to show cause why the license should not be suspended or revoked, or continued under such conditions and provisions, if any, as the director may consider just and proper and for the protection of the best interests of the producer-creditors and producers from whom the handler has been and is receiving any market milk. Following such hearing, the decision of the director shall become effective at his discretion.
The hearing, in the case of such emergency, may be called upon written notice which is served personally or by mail on the handler that is involved. It may be held at the nearest office of the director or at such place as may be most convenient in the discretion of the director for the attendance of all of the parties that are involved.
ARTICLE 13. Bonding and Payment for Market Milk [62181. - 62202.]
The bonds provided for in this article are required for each handler and apply to all purchases of milk by that handler. A handler bonded under this article is not required to be separately bonded under Section 61405.
Every handler that operates only one plant within the state, before purchasing any market milk from a producer, shall execute and deliver to the secretary a surety bond, executed by the applicant as principal and by a surety company qualified and authorized to do business in this state as surety. The minimum amount of the bond shall be based upon the average daily quantity of market milk purchased by the handler during any calendar month during a calendar year.
The minimum amount of the bond shall be as follows:
Five thousand dollars ($5,000) for any handler that purchases an average daily quantity of less than 1,000 gallons.
Ten thousand dollars ($10,000) for any handler that purchases an average daily quantity of at least 1,000 gallons but less than 4,000 gallons.
Fifteen thousand dollars ($15,000) for any handler that purchases an average daily quantity of at least 4,000 gallons but less than 8,000 gallons.
Twenty thousand dollars ($20,000) for any handler that purchases an average daily quantity of 8,000 gallons or more.
Every handler that operates more than one plant within the state, before purchasing any market milk from a producer, shall execute and deliver to the secretary a surety bond, executed by the applicant as principal and by a surety company qualified and authorized to do business in this state as surety. The bond shall be a single bond covering all plants within the state and shall be in an amount determined by multiplying twenty thousand dollars ($20,000) by the number of plants operated by the handler in the state.
Any milk purchase agreement between a handler and a producer may provide for additional surety bonds, guarantees, or other forms of security in addition to the bonding requirements in this article.
If any handler so increases his purchases of market milk during the license year that such purchases exceed the amount for which the handler is bonded, such handler shall forthwith post such additional bond as may be required to comply with this article.
The bonds required by Sections 62182 and 62183 shall be upon a form approved by the director, and shall be conditioned upon the payment in the manner that is required by this chapter, of all amounts due to producers for market milk purchased by such licensee or applicant during the license year. It shall be to the state in favor of every producer of market milk.
If a handler fails to pay any producer or producers for market milk in the manner that is required by this chapter, the director shall proceed forthwith to ascertain the names and addresses of all the producers that the handler has failed to pay, together with the amounts due and owing to them and each of them by such handler, and shall request all such producers to file a verified statement of their respective claims with the director. The producer need only verify that he is owed an amount by the handler. The actual amount in such case may be ascertained by the director.
After determining the claims of such producers, the director shall bring an action on the bond on behalf of such producers.
Any producer not satisfied with the amount of such producer’s claim as determined by the director, or with the ratio such producer’s claim bears to all claims against the bond as determined by the director, may intervene in such an action so that the correct amount of his claim and the ratio it bears to all the claims may be adjudicated.
The director may bring an action against a surety bond company if the company fails to do any of the following:
Acknowledge promptly and act reasonably upon receiving a bond demand from the director.
Promptly investigate and process claims.
Make fair and equitable settlement of claims.
Pay the bond amount to the director.
The authority provided in subdivision (a) is in addition to the authority provided for in subdivision (h) of Section 790.03 of the Insurance Code.
In addition to the bond proceeds, the surety bond company may be ordered to pay interest at the prevailing prime rate on the amounts owed from the date the claim was filed, all the department’s court costs, and reasonable attorney’s fees.
If a handler fails to pay any producer in the manner that is required by this chapter, the director may require the filing of a new or additional bond in an amount determined by the director that will be sufficient to satisfy claims for the payment of producers thereafter supplying market milk to the handler. The failure of a handler to have filed a new bond within 10 days after notice from the director constitutes grounds for the revocation or suspension of the license of the handler.
If recovery upon the bond is not sufficient to pay all of the claims as finally determined and adjudged by the court, any such amount recovered shall be divided pro rata among the producer-creditors.
The failure of any handler that purchases market milk from producers to execute and deliver the bond as provided and required in this article is a violation of this chapter. The failure of any such handler to post any additional bond as may be required to comply with any provision of this chapter is also a violation of this chapter.
Payments by a handler to a producer, for the purposes of any action on a handler’s bond or bonds for any year or years, shall be credited first to interest and then to principal due, owing, and unpaid. Amounts to be applied to principal shall be applied first to the amount due for the most recent deliveries and then successively, in descending order, to the amounts due to the next most recent deliveries.
Except as otherwise provided in Section 62193 or 62194, the purchase of any market milk in excess of 1,000 gallons monthly from any producer is an unlawful trade practice unless a written contract, which complies with all of the requirements which are prescribed by this section, has been entered into with the producer.
The contract shall include all of the following:
The amount of market milk which is to be purchased for any period.
The minimum quantity of the market milk which is to be paid for as class 1, if any is to be purchased for this purpose. The quantity shall be stated in pounds of market milk, pounds of market milk fat, or gallons of market milk, unless the price which is to be paid for the class 1 market milk is established separately for the market milk fat and market skim milk, in which case the quantity may, in the alternative, be stated in both pounds of market milk fat and pounds of market skim milk separately. The minimum quantity of market milk to be paid for as class 1 shall not be less than 70 percent of the total quantity provided in the contract to be purchased at a milk products plant, and not less than 60 percent of the total quantity of market milk fat, or the total quantity of market skim milk components, but not necessarily both, provided in the contract to be purchased at a country plant, as defined by the director in stabilization and marketing plans.
The price to be paid for all market milk received.
The date and method of payment for the market milk. Payment shall be made for the amount of the market milk delivered during the first 15 days of any calendar month not later than the first day of the next following month and for the amount delivered during the remainder of the month not later than the 15th day of the next following month unless the milk is subject to a pooling plan as authorized in Chapter 3 (commencing with Section 62700) and the pooling plan provides for different dates and methods of payment, in which case the date and method of payment for the milk shall be as provided for in the pooling plan.
The charges for transportation if hauled by the handler.
A provision that market milk received within the total quantity provided by the contract to be purchased for any period shall not be paid for at less than the minimum price for market milk used for class 2.
The contract may contain other provisions that are not in conflict with this chapter. A signed copy of the contract shall be filed by the producer with the director within five days from the date of its execution.
Paragraphs (2) and (6) of subdivision (b) shall not be applicable if an equalization pool, as provided pursuant to Chapter 3 (commencing with Section 62700), is in effect for the area in which the purchase of the market milk occurs.
The production of market milk in excess of amounts provided to be purchased under contracts executed pursuant to Section 62191 shall be voluntary on the part of the producer and shall not be a condition, oral or written, of execution or renewal of any of those contracts.
Section 62191 does not apply to the purchase of market milk which is necessary to meet an unanticipated increase in demand or an unanticipated shortage in the supply of a handler if both of the following occur:
The quantity of market milk purchased from any one producer does not exceed 5,000 gallons in any one month. However, if the producer is a cooperative association acting as a producer, the total quantity purchased shall not exceed 30,000 gallons per month.
A complete record of all of these purchases is kept by the handler, and the price paid for the milk by the handler is not less than the price which is established in the applicable stabilization and marketing plan for the usage to which the milk is applied. For a single transaction between a producer and handler, payment shall be made for the amount of milk delivered during the first 15 days of any calendar month not later than the first day of the next following month and payment shall be made for the amount of milk delivered during the remainder of the month not later than the 15th day of the next following month, unless the milk is subject to a pooling plan as authorized in Chapter 3 (commencing with Section 62700) and the pooling plan provides for different dates and methods of payment, in which case the date and method of payment for the milk shall be as provided for in the pooling plan.
Section 62191 does not apply to market milk purchased under cash-on-delivery terms.
The payment by a handler to any producer, including any nonprofit cooperative association acting as a producer, or the receipt from a handler by a producer, including any nonprofit cooperative association acting as a producer, of a lesser price for any market milk distributed to any person, including any agency of federal, state, or local government, for less than the minimum prices established by the director to be paid by handlers to producers for market milk for the marketing area is an unlawful trade practice.
The failure of any handler to pay for market milk delivered to him or her at the time and in the manner specified in the contract with the producer is an unlawful trade practice, except as provided for in Section 62079.
This article applies regardless of the form in which market milk is received by the handler and regardless of the area of origin of the market milk.
Any contract between a producer and handler is voidable by the producer for a 45-day period following the occurrence of either of the following events:
The handler has failed to pay the producer the full price specified in the contract or has failed to comply with the terms specified in paragraph (4) of subdivision (b) of Section 62191, and the failure has not been corrected by the handler within one business day after notification by the producer or director. The 45-day period shall commence on the day after the payment was due.
The handler has failed on three separate occasions within a 12-month period to pay the producer the full price specified in the contract or has failed to comply with the terms specified in paragraph (4) of subdivision (b) of Section 62191. The 45-day period shall commence on the day after the third occurrence.
If a notice has been issued by the director that the future deliveries to the handler will not be covered under the Milk Producers Security Trust Fund created pursuant to Chapter 2.5 (commencing with Section 62500), all contracts between producers and the handler are voidable by the producers. Producers shall have the option to void their contracts for a 45-day period from the date the notice is issued or until the date the director establishes for reinstatement of the handler’s eligibility under the trust fund, whichever is later.
Handlers shall pay producers either by check or cash. Handlers electing to pay producers by cash shall, in all cases, obtain a dated, signed receipt from each producer. The receipts shall be made a part of the permanent records of the handler. Handlers paying by check shall issue checks which are reduceable to cash by the producer in no more than one business day.
The giving of a promissory note is not payment within the meaning of this chapter.
If a handler does not pay for market milk delivered to him or her at the time and in the manner specified in the contract, the handler shall pay the producer interest on the unpaid amount from the time the payment was due until paid at the rate of 12 percent per annum. This interest is in addition to any other penalties provided in this chapter.
If there is no contract for the delivery of milk to the handler or the delivery was made as a single transaction between the producer or handler, the handler shall pay the department interest on the unpaid amount from the time the payment was due until paid at the interest rate specified in subdivision (a). The interest is in addition to any other penalties provided in this chapter.
If a handler fails to pay for market milk delivered to him or her at the time and in the manner specified in this chapter, the director may assess a penalty for each payment date that producers were not fully paid. Any penalty assessed shall be a minimum of one hundred dollars ($100) for each payment date. If the amount not properly paid is in excess of forty thousand dollars ($40,000), the penalty assessed will be five thousand dollars ($5,000) or one-fourth of 1 percent of the amount not properly paid for, whichever is less.
ARTICLE 14. Administrative Fees [62211. - 62213.]
Every handler subject to the provisions of any stabilization and marketing plan, including a producer-handler, shall deduct as an assessment from payments made to producers for market milk, including the handler’s own production, the sum of one and six-tenths cents ($0.016) per hundredweight of market milk.
The amount of the assessments so deducted shall be paid to the secretary on or before the 45th day following the last day of the month during which such market milk was received.
Every handler subject to the provisions of any stabilization and marketing plan that purchases or handles market milk from producers, including the handler’s own production, if any, shall pay a fee of eight-tenths of one cent ($0.008) per hundredweight of market milk.
The amount of such fee shall be paid to the secretary on or before the 45th day following the last day of the month in which that market milk was received.
Moneys from the amounts paid to the secretary pursuant to subdivisions (a) and (b) may be used to administer and enforce this chapter.
The director may fix the rates of assessments or fees required by Section 62211 at lesser amounts, and may adjust the rates of assessments or fees from time to time, whenever he or she finds that the cost of administering the provisions of this chapter, including any allocation of funds made pursuant to Section 38986, can be defrayed from revenues derived from the lower rates. However, the rate of assessments deducted from payments to producers for market milk, including the handler’s own production, and the rate of fees paid by handlers shall, at all times, be in the ratio of 2 to 1, except that this ratio need not be achieved during a six-month period following the transfer of any fund surplus pursuant to Section 62574.
Any assessment or fee or either of them payable pursuant to any provision of this article is a debt of the person by whom such assessment or fee or either of them is payable and shall be due and payable to the director upon the date set forth in Section 62211. If such person does not pay such assessment or fee or either of them upon the required date, the director may file a complaint against such person in a state court of competent jurisdiction for the collection of such assessment or fee or either of them.
If any such person does not pay to the director the assessments or fees or either of them provided for in this article, on or before the date specified in Section 62211, the director may add to such unpaid assessments or fees or either of them an amount not exceeding 10 percent of such unpaid assessment or fees or either of them to defray the cost of enforcing the collection of such unpaid assessments or fees or either of them.
ARTICLE 15. Reports and Statistics [62241. - 62243.]
All handlers shall make and file with the director at least once each month such reports as the director may require to enable him to enforce the provisions of this chapter.
Within 60 days of the effective date of this section, each market milk handler shall provide the director with a list of the name, address, and date of every current contract between the handler and market milk producer. Monthly thereafter, the handler shall report to the director the same information on all terminated, new, and amended contracts which has not been previously reported. The director may assess a one hundred dollar ($100) penalty against any market milk handler who fails to file the required report for each report not filed.
Every handler that purchases market milk shall make and keep for three years a correct record which shows in detail all of the following with reference to the handling, sale, or storage of the market milk:
The name and address of the seller.
The date the market milk was received.
The amount of market milk received.
The official tests of the market milk purchased.
The usage of the market milk.
Evidence of payment for the market milk purchased.
Other records that the director may require.
Any record or report made to the director pursuant to this article, or any contract required to be filed under this chapter, is confidential and shall not be divulged, except if necessary for the proper determination of any court proceedings or hearing before the director.
ARTICLE 17. Local and Regional Producer Advisory Boards [62301. - 62313.]
Except as otherwise provided in Section 62303, the director may, if he deems such board necessary or advisable, appoint:
A local advisory board for any marketing area established as prescribed in this chapter to assist and advise him in matters which pertain to the production and marketing of market milk or to the operation of a stabilization and marketing plan.
A regional advisory board, if he deems such board necessary or advisable to represent several marketing areas adjacent to each other and wherein production conditions and costs are reasonably uniform.
Except as otherwise provided in Section 62303, the director shall appoint:
A local advisory board, if a majority of the producers individually, or through any nonprofit agricultural cooperative marketing association which is authorized by its members to so petition, request the establishment of such board.
A regional advisory board, if in each marketing area which is involved a majority of producers that supply such marketing areas individually, or through any nonprofit agricultural cooperative marketing association which is authorized by its members to so petition, requests that such a board be established.
The director shall not establish any local or regional advisory board pursuant to this article if he finds that the assessments or fees which are collected pursuant to Article 14 (commencing with Section 62211) of this chapter from the marketing area are insufficient to cover the costs of such local or regional advisory board.
No regional advisory board shall be set up to include any marketing area which on September 7, 1955, was operating under a local advisory board, unless by petition as provided for in this article or through public hearing, producers of such marketing area request that they be represented by a regional advisory board.
If the director receives a qualified petition for a local advisory board, he may investigate the possibility of establishing a regional advisory board covering the marketing area from which the petition was received and the adjacent marketing areas, by holding one or more public hearings for the purpose of establishing whether or not a majority of producers supplying the marketing areas proposed to be included in such region desire such regional advisory board.
A local advisory board established pursuant to this article shall consist of seven members who shall be producers that supply market milk to the particular marketing area. A regional advisory board may consist of any number of members who are producers that supply market milk to any of the marketing areas in the region, but shall consist of not less than one member from each such marketing area in the region. The director may appoint one additional member on each such board who shall be a public member.
Upon the director’s request, each board shall submit to the director the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, or processor nor financially interested in any producer, shipper, or processor, for appointment by the director as a public member of the board. The director may appoint one of the nominees as the public member on the board. If all nominees are unsatisfactory to the director, the board shall continue to submit lists of nominees until the director has made a selection. Any vacancy in the office of the public member of the board shall be filled by appointment by the director from the nominee or nominees similarly qualified submitted by the board. The public member of each board shall represent the interests of the general public in all matters coming before the board and shall have the same voting and other rights and immunities as other members of the board.
The term of office of each member of a regional advisory board or a local advisory board shall be two years.
The director may remove any member from a local or a regional advisory board if he finds, after a hearing, that such member is guilty of nonfeasance or malfeasance in office.
The director may appoint a member to fill any vacancy on a local or a regional advisory board.
Each regional advisory board and each local advisory board may meet in regular session each month, and each member shall be allowed twenty dollars ($20) per diem and mileage at the rate of fifteen cents ($0.15) per mile for attending such regular meetings, and any other meeting or conference which is called or authorized by the director within or outside of the boundaries of this state.
Any regional or local advisory board may, with the previous approval of the director, employ such personnel as may be necessary in the performance of its duties and shall adopt regulations for its conduct. Each such board shall submit a budget of its expenses to the director for his approval.
The funds to be used for the maintenance of each such board shall be paid from the proceeds of assessments and licenses which are paid to the director under the plan of any area which is represented upon verified claims that are presented by the board to the director. A regional or local advisory board shall not incur any expenses except those for per diem and mileage, unless the expenses are approved by the director.
Regional and local advisory boards shall review with the director the methods which are to be used in determining producer costs, and aid the director in the selection of the level of production which is necessary to meet the requirements of Section 62062 with respect to producer price minimums.
For purposes of developing uniformity of administration as between marketing areas in which producer advisory boards have been appointed, the director shall call together representatives of regional and local advisory boards from time to time to advise him as to the relationships in producer costs among the marketing areas, and may designate such representatives as the statewide committee of producer advisory boards.
It is hereby declared, as a matter of legislative determination, that producers of market milk appointed to the regional advisory boards pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such advisory boards, the particular industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 18. Actions and Penalties [62401. - 62403.]
The violation of any provision of this chapter, or of any provision of any stabilization and marketing plan, or of any regulation adopted under this chapter, is a misdemeanor which is punishable by a fine of not less than one hundred dollars ($100) and not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding six months, or by both such fine and imprisonment. The amount of penalty which is assessed pursuant to this section on each count of violation shall be based upon the nature of the violation and the seriousness of the effect of such violation upon effectuation of the purposes and provisions of this chapter.
Any person who violates this chapter, any provision of any stabilization and marketing plan, or any regulation adopted under this chapter, is liable civilly in an amount not less than one hundred dollars ($100) and not to exceed one thousand dollars ($1,000) for each and every violation. That penalty is to be recovered by the director in any court of competent jurisdiction. The amount of penalty which is assessed pursuant to this section on each count of violation shall be based upon the nature of the violation and the seriousness of the effect of the violation upon effectuation of the purposes and provisions of this chapter. The court may, in addition to the civil penalty, award reasonably incurred investigative and enforcement costs, and attorney’s fees, to the director. The court may also award attorney’s fees to any person successfully defending a civil action under this section. In any civil action initiated by the director under this section, the director shall join in the action, and assert civil penalties against, all parties participating in the commission of the unlawful practice. Any sum which is recovered under this section shall be deposited in the State Treasury to the credit of the Department of Food and Agriculture Fund.
The director may bring an action to enjoin the violation, or the threatened violation, of any provision of this chapter, any provision of any stabilization and marketing plan, or any regulation adopted under this chapter in the superior court in the county in which such violation occurs or is about to occur. There may be enjoined in one proceeding any number of defendants alleged to be violating the same provisions, orders, or regulations, although their properties, interests, residences, or places of business may be in several counties and the violations separate and distinct. Any proceeding which is brought pursuant to this section shall be governed in all other respects by the provisions of Chapter 3 (commencing with Section 525), Title 7, Part 2 of the Code of Civil Procedure.
CHAPTER 2.5. Milk Producers Security Trust Fund [62500. - 62667.]
ARTICLE 1. Legislative Declaration [62500. - 62508.]
The production and distribution of milk, and the components thereof, is hereby declared to be a business affected with a public interest. This chapter is enacted in the exercise of the police powers of this state for the purpose of protecting the health and welfare of the people of this state.
It is hereby declared that the dairy industry is a paramount agricultural industry of the state, and the normal processes of producing and marketing milk are enterprises of vast economic importance to the state and of vital importance to the consuming public which should be safeguarded and protected in the public interest. The Legislature finds that the marketing of milk requires producers to receive prompt payment. It is the policy of this state to protect producers against loss of payment for bulk milk. The public interest requires the establishment of a system to provide payment security for producers.
This chapter shall be liberally construed. If any article, section, subdivision, sentence, clause, or phrase of this chapter is for any reason held to be unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the validity of the remaining provisions of this chapter or the application of this chapter to any other person or under any other circumstances.
The Legislature hereby declares that it would have enacted each article, section, subdivision, sentence, clause, or phrase of this chapter regardless of the fact that one or more other articles, sections, subdivisions, sentences, clauses, or phrases are declared unconstitutional or invalid.
This chapter does not preclude any producer from bringing any action against any handler in any court of competent jurisdiction.
In order to effectuate the purposes of this chapter, the Milk Producers Security Trust Fund is hereby created.
It is hereby declared, as a matter of legislative determination, that producers and handlers appointed to the Milk Producers Security Trust Fund Board are intended to represent and further the interest of a particular agricultural industry concerned, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the board, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
This chapter shall be known and may be cited as the Norman S. Waters-Ruben S. Ayala Milk Producers’ Security Act of 1987.
ARTICLE 2. Definitions [62521. - 62521.]
For purposes of this chapter, the following terms have the following meanings:
“Acceptable security” means a surety bond from an admitted insurer, deposits of government securities, a letter of credit, or other form of performance guarantee acceptable to the secretary and meeting the requirements as acceptable security pursuant to law. Any instrument used as acceptable security shall contain provisions the secretary may prescribe, shall have an effective life of no less than two years, shall name the secretary as the beneficiary of the instrument, shall be clean and irrevocable if the security is a letter of credit, shall provide that the secretary may draw upon it up to the total amount in the event of the handler’s payment default, and, except as otherwise provided in paragraph (3), shall be verified to the secretary as being in effect and complying with the provisions of this chapter at the end of every six-month interval following the date on which a handler originally posts the instrument. Except as provided in paragraphs (2) and (3), acceptable securities provided to the secretary shall not be released by the secretary unless the handler’s average monthly purchases, as determined annually by the secretary, fall below thirty million dollars ($30,000,000) or the fund cash, whichever is higher. Any interest accrued by the instrument shall be the property, and for the benefit, of the handler posting the instrument.
Subject to the provisions of this chapter, a handler who has posted an acceptable security shall have the right to replace that instrument with a new acceptable security meeting the requirements of this chapter at the end of every six-month interval following the date on which the handler originally posted the instrument. The secretary shall release the issuer of any acceptable security from all past, present, or future obligations secured by the acceptable security upon the secretary’s acceptance of replacement security meeting the requirements of this chapter and the secretary shall then provide written confirmation to the issuer of the original acceptable security that an acceptable replacement security had been provided.
Upon receipt of an affidavit confirming that the amount paid under an acceptable security posted pursuant to this chapter was equal to the total amount of that instrument, the secretary shall release the issuer of that acceptable security from all past, present, and future liability. Upon receipt of an affidavit confirming any other amount paid by an issuer under an acceptable security posted pursuant to this chapter, the secretary shall release the issuer of that security to the extent of the issuer’s payment.
“Board” means the Milk Producers Security Trust Fund Board.
“Eligible milk” means milk, whether pooled or nonpooled, that meets both of the following criteria for coverage by the fund, regardless of whether the milk meets other criteria necessary for coverage:
The criterion in paragraph (3) of subdivision (a) of Section 62580, relating to milk being produced and delivered within the state.
The criterion in paragraph (7) of subdivision (a) of Section 62580, relating to a producer not having a beneficial ownership interest in the handler to whom shipments are made.
“Fund” means the Milk Producers Security Trust Fund created pursuant to Section 62506.
“Fund cash” means the combined value of the security charges collected pursuant to Section 62560 and 62561, any amounts paid under a security posted pursuant to this chapter, amounts reimbursed to the fund, including any accrued interest collected and authorized by law to be deposited in the fund with that reimbursement, penalties collected and authorized by law to be deposited in the fund, and any increments received pursuant to Section 62573.
Except as provided in paragraph (2), “fund surplus” means the portion of fund cash at any particular time that consists of increments received by the fund pursuant to Section 62573.
If payment of producer claims pursuant to Article 7 (commencing with Section 62620) reduces the fund cash to thirty million dollars ($30,000,000), “fund surplus” shall thereafter mean the amount by which the fund cash exceeds thirty million dollars ($30,000,000).
“Handler” means any person who as owner, agent, broker, or intermediary, either directly or indirectly, receives, purchases, or otherwise acquires ownership, possession, or control of milk in unprocessed or bulk form from a producer or a producer-handler for the purpose of manufacturing, processing, selling, or other handling. It includes nonprofit cooperative associations that, either directly or indirectly, receive, purchase, or otherwise acquire ownership, possession, or control of milk from other handlers or producers who are nonmembers of the nonprofit cooperative association.
“Milk” means bulk whole milk, bulk reduced-fat milk, bulk lowfat milk, bulk skim milk, bulk condensed skim, and bulk cream, and any other combination of these products that have not had nondairy ingredients added. It does not include milk that has been packaged in bottles, cartons, dispenser cans, or other consumer packages.
“Nonpooled milk” means milk that is not subject to the pricing and pooling provisions of the Federal Milk Marketing Order.
“Nonprofit cooperative association” means a nonprofit cooperative association, as defined in Section 1051.18 of the Federal Milk Marketing Order, of producers, as defined in Section 1051.12 of the Federal Milk Marketing Order, that is organized and existing under Chapter 1 (commencing with Section 54001) of Division 20.
“Producer” means any person who produces milk from five or more cows whose bulk milk is received, acquired, or handled by a handler. It includes a nonprofit cooperative association in the sale of milk of its member producers to other handlers.
“Statistical uniform price” means the Producer Price Differential (PPD), adjusted by the location of the plant of first receipt, added to the announced class III price at the standard component tests.
ARTICLE 3. Milk Producers Security Trust Fund Board [62540. - 62543.]
The secretary shall appoint a Milk Producers Security Trust Fund Board consisting of seven members.
All appointments shall be for a term of three years, and no member shall be appointed to more than three consecutive three-year terms.
Members of the board shall include three milk producers, two representatives of handlers licensed under Chapter 2 (commencing with Section 61801), and two nonproducer members representing nonprofit cooperative associations.
Each member of the board shall be paid one hundred dollars ($100) per day plus travel expenses, including expenses for lodging and meals, which are incurred in the attendance at board meetings or in conducting the business of the board. All per diem and expense claims are subject to approval by the secretary.
The board shall advise the secretary on the administration of the fund, including, but not limited to, the amount of the fund defaults under this chapter and the implementation of the security charge necessary to accomplish its functions.
The board may, by contract, with the approval of the secretary, engage the services of an accounting firm or other consultants or agencies that the board determines to be necessary.
ARTICLE 4. Financing Plan [62560. - 62574.]
The security charges provided for in Section 62561 shall be collected until January 1, 2007. Unless otherwise permitted by this section, the secretary shall thereafter discontinue collection of the security charges. The fund shall consist of the fund cash, the value of any alternative financial instrument, and acceptable securities provided by handlers pursuant to subdivision (c).
If, after January 1, 2007, payment of producer claims reduces the fund cash below thirty million dollars ($30,000,000), the secretary may resume collecting security charges in order that the fund cash is thereafter maintained at thirty million dollars ($30,000,000). Security charges necessary to return the fund cash to thirty million dollars ($30,000,000) shall, subject to subdivision (c), be collected from all handlers making purchases of eligible milk, including handlers who have posted acceptable securities pursuant to subdivision (c).
If, in any month, 110 percent of any handler’s average monthly eligible milk purchases, computed over the preceding 12 months, unless the increase in value of eligible milk purchases is the result of substantial business expansion or the result of a merger or acquisition, in which case the 12-month computation requirement does not apply, exceeds the fund cash as of the end of that month, or thirty million dollars ($30,000,000), whichever is higher, the secretary shall require that handler to provide acceptable securities, as calculated consistent with subdivision (e), within 10 working days in an amount equal to the difference between the fund cash or thirty million dollars ($30,000,000), whichever is higher, and 110 percent of that handler’s average monthly eligible milk purchases. When handlers have provided acceptable securities covering the difference, the secretary shall not collect security charges from those handlers for the portion of their average monthly eligible milk purchases covered by acceptable securities. Shipments to handlers failing to provide acceptable securities within 10 working days of notice by the secretary of the obligation to post acceptable securities, as required by this subdivision, shall be listed by the secretary as ineligible for coverage under the fund pursuant to Section 62586.
The secretary shall calculate the value of handlers’ average monthly eligible milk purchases at least once each year for those handlers whose previous average monthly eligible milk purchases exceed twenty million dollars ($20,000,000). If, as a result of any such calculation, the secretary determines that a handler must provide additional acceptable securities, as calculated consistent with subdivision (e), to satisfy the requirements of subdivision (c), that handler shall provide additional acceptable securities within 10 working days of notice by the secretary.
In calculating the amount of an acceptable security pursuant to subdivision (c) or (d), the secretary shall not take into account milk that a handler purchases from a producer with a beneficial ownership interest in the handler, as defined for purposes of paragraph (7) of subdivision (a) of Section 62580.
In the event a handler fails to comply with subdivision (d):
In addition to paying all other amounts required by this chapter, including any security charges then in effect under subdivision (a) of Section 62561, that handler shall pay an enhanced security charge on all eligible milk purchased to be computed as follows:
3.2 mills ($0.0032) per pound for fat contained in eligible milk of any class referred to in Section 1051.40 of the Federal Milk Marketing Order, whether pooled or nonpooled.
1.3 mills ($0.0013) per pound for solids-not-fat contained in eligible milk of any class referred to in Section 1051.40 of the Federal Milk Marketing Order, whether pooled or nonpooled.
A handler shall be liable for the enhanced security charges required by this section until the handler provides the required additional acceptable securities to the secretary. Notwithstanding subdivision (b), enhanced security charges paid pursuant to this paragraph shall be deposited into the fund and become part of the fund cash.
If a handler fails to timely provide acceptable securities, or additional acceptable securities, as required by this section, the secretary shall promptly give notice of that fact to all producers who have a contract on file with the secretary, all nonprofit cooperative associations, and other interested parties. A handler failing to post acceptable securities may also be subject to revocation, suspension, or nonrenewal or placement of conditions upon the handler’s license pursuant to Sections 62146, 62149, and 62151.
In consultation with the board, the secretary may consider and use alternative financial instruments, in addition to, or in lieu of, using security charges to meet the financial security requirements of this section.
The following security charges shall be in effect for any period for which the secretary has implemented collections under this chapter:
3.2 mills ($0.0032) per pound for fat contained in eligible milk of any class referred to in Section 1051.40 of the Federal Milk Marketing Order, whether pooled or nonpooled.
1.3 mills ($0.0013) per pound for solids-not-fat contained in eligible milk of any class referred to in Section 1051.40 of the Federal Milk Marketing Order, whether pooled or nonpooled.
The secretary is only authorized by this article to collect security charges on eligible milk.
The amount of any handler’s obligation attributable to the security charges established pursuant to Section 62561 shall be remitted by the secretary to the fund by the end of the month following the month in which payment for the milk is made.
Security charges shall be collected by the secretary through direct payment.
The secretary may add a penalty of 10 percent to amounts that are not paid when due.
If any handler or producer-handler does not provide the information necessary to determine the amount due, when required, the secretary shall estimate the amount due from the records of the department or from any other source of information that is available.
The secretary may take all appropriate action against any person to recover any unpaid amounts. In any action, a declaration by the secretary that states the amount required to be paid, including penalty, is prima facie evidence of the delinquency. The presumption established by this section is a presumption affecting the burden of proof.
Any money that is collected by the secretary pursuant to this chapter shall be deposited in a bank or other depository that is approved by the secretary. Funds that are so collected are exempt from Sections 11270 and 11272 of the Government Code and shall be deposited and disbursed only to pay for milk produced and delivered within this state, that has not been otherwise paid for, including attorney’s fees and other costs incurred in litigation involving the fund, expenses generated by the auditing requirement imposed by Section 62570, expenses generated by the use of alternative financial instruments pursuant to Section 62560, and the costs set forth in Section 62573. The expenditure of those funds is exempt from Section 925.6 of the Government Code.
All fund activities shall be subject to an audit at least once every two years by an auditing firm recommended by the board and selected by the secretary. A copy of the audit shall be delivered to the secretary within 30 days after completion.
Notwithstanding Section 13340 of the Government Code, any money that is collected by the secretary pursuant to this chapter is hereby continuously appropriated to the secretary to carry out only those purposes provided for in Section 62569. The appropriation that is made in this section is exempt from Section 16304 of the Government Code.
Any money that is deposited pursuant to Section 62569, which the secretary determines is available for investment, may be invested or reinvested by the Treasurer in any of the securities described in Article 1 (commencing with Section 16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code, or placed in a depository as provided in Chapter 4 (commencing with Section 16500) of that part, and handled in the same manner as money in the State Treasury. For these purposes, the money may also be combined with funds determined by the secretary to be available for investment pursuant to Section 58939.
Any increment that is received from investment, reinvestment, or deposit of money pursuant to Section 62572 shall be deposited to the credit of the fund. The Treasurer may deduct from this remittance an amount equal to the reasonable costs incurred in carrying out Section 62572 and this section or may bill the secretary for the costs, and the secretary shall pay the costs from money collected pursuant to this chapter.
Nothing in this section prevents the secretary from using the increment in a manner provided by Section 62574.
Immediately following the payment to the fund of the increment provided in Section 62573, the secretary may, after consultation with the board, transfer an amount equal to one-half of that increment to the Department of Food and Agriculture Fund to be used to reduce the producer assessments collected pursuant to Section 62660.
ARTICLE 5. Milk Producers Security Trust Fund Coverage [62580. - 62587.]
Except as otherwise provided in this chapter, milk shipped by a producer to a handler who meets all of the following criteria shall be considered for coverage pursuant to this chapter:
A valid contract between the producer and handler pursuant to Chapter 1 (commencing with Section 61310) or Chapter 2 (commencing with Section 61801) has been filed with the secretary before the date the milk was shipped, unless the shipment was made in the first five days after the contract was executed. Filing may be accomplished by providing the department electronic notification of the contract.
The milk was produced within the state and delivered to a plant within the state.
The secretary has not issued a prior notice that the shipments would not be covered by the fund.
The shipment was not made under a custom processing arrangement with the producer retaining title.
The producer shipping the milk had a direct contract with the handler. Milk shipped to a handler under a contract held by intermediaries, brokers, or agents is not covered.
In the case of a nonprofit cooperative association, only the milk of its members shipped under the contract is covered. Notwithstanding subparagraph (A), milk shipped by a nonprofit cooperative association to a handler under a contract held by another nonprofit cooperative association, as verified by the secretary, is covered.
The producer does not have a beneficial ownership interest in the handler to whom shipments were made.
For purposes of this paragraph, the term “beneficial ownership interest” means the holding of any ownership share in the handler to whom shipments are made, or, if the handler is a publicly traded company, an ownership share of more than 1 percent.
The producer is in compliance with this chapter.
Milk shall not be excluded from coverage pursuant to this chapter due to its pooled or nonpooled status.
Any producer entity, including a nonprofit cooperative association that severs a disqualifying beneficial ownership interest in a handler to whom it supplies bulk milk, shall not have trust fund coverage for future milk shipments to that handler for a period of 12 months after notice is given to the secretary of termination of the beneficial ownership interest unless a waiver is granted subject to Section 62587.
Only shipments which occur during the first 35 days from the date of the earliest shipment for which a producer has not been paid are eligible.
If future shipments to a handler are not eligible for coverage under this chapter in the event of a default, the secretary shall notify all producers who have a contract on file with the secretary, all nonprofit cooperative associations, and other interested parties. Future shipments shall not be eligible when any of the following events occur:
The handler fails to pay producers as required under Section 1051.73 of the Federal Milk Marketing Order, or, in the case of nonpooled or Grade B milk, by the contract filed with the secretary pursuant to paragraph (1) of subdivision (a) of Section 62580.
The handler fails to submit, when requested by the secretary, executed contracts that establish the relationship between affected parties.
If, on the date of the notice issued pursuant to Section 62582, a producer has a contract with the handler which is on file with the secretary, and that producer has received payment from a handler whose milk purchases have been declared ineligible, shipments by that producer which occur more than five days from the date of the notice of ineligibility issued by the secretary will not be considered in determining any claim the producer may make against the fund, unless the secretary reestablishes eligibility for future shipments to be covered by the fund.
If, on the date of the notice issued pursuant to Section 62582, a producer does not have a contract with the handler which is on file with the secretary, shipments by that producer which occur more than five days from the date of the notice of ineligibility issued by the secretary will not be considered in determining any claim the producer may make against the fund, unless the secretary reestablishes eligibility for future shipments to be covered by the fund.
If the secretary issues a notice pursuant to Section 62582, the secretary may again qualify shipments to the handler if the handler has corrected the deficiency upon which the notice was originally issued and has done all of the following:
Paid all amounts owed to producers, including interest. Producers are not entitled to receive interest on amounts for which they have been paid by the fund after the date of payment by the fund.
Reimbursed the fund for any payments made by the fund due to a default by the handler plus interest at the rate of 12 percent per annum from the date of payment by the fund.
Paid any assessments, penalties, or other amounts owed under federal, state, or local laws.
The secretary shall, at least monthly, publish a current list of all handlers to whom shipments are not eligible for coverage under the fund.
The secretary may waive any of the provisions of this article if, after consultation with the board, the secretary finds that a hardship would be imposed on persons subject to this chapter that is not consistent with the intent of this chapter.
ARTICLE 6. Discovery and Notification of Default in Payments [62600. - 62604.]
Any producer who does not receive payment for milk sold or delivered to a handler in the manner required by Section 1051.73 of the Federal Milk Marketing Order, or, in the case of nonpooled or Grade B milk, as required by the contract, shall immediately notify the secretary. Failure to notify the secretary within two business days of nonperformance of electronic fund transfer payments shall result in a one-day reduction in total days covered for each day of failure to notify the secretary of nonpayment.
The secretary shall, upon the secretary’s own motion or upon information from a producer, producer representative, or any other person, immediately take whatever action is necessary to determine whether a payment default has occurred.
If the secretary determines that a payment default has occurred, the secretary shall notify the handler that it has one business day from receipt of the notification to correct the payment deficiency. If the secretary determines that a payment default has not occurred, the secretary shall so notify the handler and complaining party.
When a payment default has occurred, which was not corrected within one business day after notification, the secretary shall issue a notice pursuant to Section 62582 which identifies the defaulting handler and informs producers of the provisions of Sections 62583 and 62584. The notice shall also inform producers of their rights to file claims pursuant to Article 7 (commencing with Section 62620).
ARTICLE 7. Producer Claims [62620. - 62625.]
If the secretary determines that the fund is liable for any nonpayments to producers, the secretary shall provide to the producers, who have a contract with the defaulting handler on file with the secretary, a claim form. The claim form, which shall be verified, shall be returned to the secretary within 60 days from the date the claim forms are mailed by the secretary. The producer need only verify that a nonpayment has occurred. The amount of the nonpayment shall be determined by the secretary.
If a verified claim form is not filed as required by Section 62620, the secretary and the fund are relieved of any further duty or liability pursuant to this chapter.
Upon receipt of all verified claim forms from producers or the expiration of the time allowed to file claims, whichever occurs first, the secretary shall calculate the amount due each producer and shall notify each producer of their calculated amount and the relationship that amount bears to the total of all claims. Any producer not satisfied with the determination of the secretary may, within 30 days of receiving the notice pursuant to this section, request the secretary to review the producer’s calculated amount.
For purposes of this chapter, the amounts owed to the producers shall be calculated as follows:
Only shipments that occur during the first 35 days from the date of the earliest shipment for which a producer has not been paid shall be used.
For all eligible milk, whether pooled or nonpooled, the price specified in the contract with the handler or the statistical uniform price, as defined in Section 62521, whichever is lower, shall be used.
Deductions shall be made for those items that the handler has remitted on the producer’s behalf, and for which documentation of remittance has been presented, unless the deductions are unauthorized.
Two hundred thousand dollars ($200,000) shall be deducted from the total of the amount owed to all producers, as calculated in Section 62623, and the balance shall be paid from the fund on a pro rata basis. The amount calculated pursuant to Section 62623 shall be the basis for prorating.
A prorated payment shall be made to all affected producers based on the amount payable pursuant to Section 62624 when there is not sufficient money in the fund. Additional payments shall be made on a quarterly basis until the total amount due is paid. Each payment shall take into consideration all claims that have been partially satisfied and new claims approved since the previous payment.
ARTICLE 10. Administration [62660. - 62667.]
The secretary shall collect from each producer three and three-tenths mills ($0.0033) per hundredweight of all milk, whether pooled or nonpooled, to defray the reasonable costs of administering this chapter, except costs for which the fund is liable, as provided for in Section 62569.
The secretary may fix the rate of the assessment authorized pursuant to subdivision (a) at a lesser or greater amount and may adjust the rate of the assessment as the secretary determines necessary to defray the reasonable costs of administering this chapter.
The secretary is the instrumentality of this state for the purpose of administering and enforcing this chapter and to execute the legislative intent expressed in this chapter, and is hereby vested with the administrative authority specified in this chapter.
The secretary may exercise any or all of the powers conferred by Chapter 2 (commencing with Section 11150) of Part 1 of Division 3 of Title 2 of the Government Code upon the head of a department with respect to hearings and investigations under this chapter.
For purposes of enforcing this chapter, the secretary may investigate any and all transactions between producers and handlers, between nonprofit cooperative associations and producers, and among handlers. For that purpose, the secretary shall have access to, and may enter at all reasonable hours, any place where milk is being stored, bottled, or manufactured and where milk is being bought, sold, or handled, or where the books, papers, records, or documents that relate to those transactions are kept. The secretary may inspect and copy those books, papers, records, or documents at any place within the state.
Any order of the secretary made pursuant to this chapter that substantially affects the rights of any directly affected party shall be subject to judicial review upon petition to the appropriate court. The petition shall be filed within 30 days after the effective date of the order.
Any producer who recovers from the fund shall subrogate to the secretary all rights of recovery against any person or organization, and the producer shall execute and deliver to the secretary instruments and papers and perform any other acts necessary to carry out this section.
Any payments made to producers from the fund due to a handler’s default shall accrue interest at the rate of 12 percent per annum from the date of payment. The payments and accrued interest is a judgment against the defaulting handler. The judgment shall be considered a lien on all real and personal property of the defaulting handler. The secretary may file the lien for record with any county recorder where a defaulting handler’s property is located and shall specify the amount owed, the name of the handler, the federal social security number or the federal employer tax number if known, and the last known address of the handler. The lien shall remain in full force and effect until the handler has repaid to the fund an amount equal to the default.
CHAPTER 3. Equalization Pools [62700. - 62731.]
The production and distribution of fluid milk and fluid cream is hereby declared to be a business affected with a public interest. The provisions of this chapter are enacted in the exercise of the police powers of this state for the purpose of protecting the health and welfare of the people of this state.
It is hereby declared that fluid milk and fluid cream are necessary articles of food for human consumption; that the production and maintenance of an adequate supply of healthful milk of proper chemical and physical content, free from contamination, is vital to public health and welfare, and that the production, transportation, processing, storage, distribution and sale of fluid milk and fluid cream in the State of California is an industry, in whole and in part, affecting public health and welfare; that unfair, unjust, destructive and demoralizing trade practices have appeared within this industry and these practices constitute a menace to the health and welfare of the inhabitants of this state by threatening the stability of this industry and by thereby endangering the assurance to the people of the State of California of the maintenance of an adequate supply of this necessary commodity; that it is a policy of this state to promote, foster and encourage the intelligent production and orderly marketing of commodities necessary to its citizens, including fluid milk and fluid cream, and to eliminate speculation, waste, improper marketing, unfair and destructive trade practices, and improper accounting for milk purchased from producers.
It is recognized by the Legislature that currently the powers conferred upon the director by Chapter 2 (commencing with Section 61801) are inadequate to enable the dairy industry to develop and maintain satisfactory marketing conditions and bring about and maintain a reasonable amount of stability and prosperity in the production of fluid milk and fluid cream; and that to accomplish these purposes, and particularly to insure to consumers within California an adequate and continuous supply of pure, fresh, and wholesome milk at fair and reasonable prices, including a reasonable estimate of the additional supply which is needed to provide for normal fluctuations in production and in consumer demand for those products, those powers must be supplemented by the powers conferred in this chapter upon the director to equalize gradually the distribution of class 1 usage among the producers of this state.
It is recognized by the Legislature that the provisions for equalization of usages among producers and entry of new producers contained in the Gonsalves Milk Pooling Act, as originally enacted, and the pooling plan adopted thereunder, tended to achieve the purposes of that act; however, the provisions for more rapid equalization and additional new entry would more rapidly and effectively achieve the purposes of this chapter.
It is also recognized that some holders of pool quota and production base initially issued under the Gonsalves Milk Pooling Act have waited for several years for equalization, and that equalized producers have for a number of years not shared in any of the benefits of new quota created by new usage.
It is further recognized that it is necessary to promote and to attempt to assure more rapid equalization of the holders of pool quota issued subsequent to the initial allocation of production bases and pool quota pursuant to this chapter, and to provide for a program for entry and for equalization of new producers.
It is the purpose of the amendments to this chapter to provide a reasonable and equitable mechanism to permit more accelerated equalization, to equalize the holders of pool quota and production base initially issued under the Gonsalves Milk Pooling Act and who are not yet equalized, and to legislatively allocate in a fair and reasonable manner a share of new pool quota created by new usage to existing pool quota holders who are not equalized, to new producers, and to equalized pool quota holders who have not shared in the benefits of the growth of new usage since the original enactment of the Gonsalves Milk Pooling Act and the pooling plan thereunder.
In effectuating the purposes of this chapter, a production base and a pool quota shall be established for each producer pursuant to Section 62707. The establishing of these bases and their functions shall be as provided in the pooling plan formulated by the director pursuant to the provisions of this chapter.
The director is authorized to develop a proposed pooling plan and to designate the proposed areas in which the plan will be made effective. He shall appoint fluid milk producers, and representatives of producers, to be the members and alternate members of a formulation committee, reasonably representative of all producers and areas to be included in the proposed pooling plan, which committee shall advise and assist the director in the establishment of the proposed pooling plan area and in the formulation of the proposed pooling plan. The pooling plan shall include all areas covered by stabilization and marketing plans under Chapter 2 (commencing with Section 61801), except any relatively isolated region of the state may be excluded therefrom, if the director, after a public hearing, finds that the inclusion of the region is not practical or in conformity with the purposes of the pooling plan, or if he finds that the producers in the relatively isolated region do not desire to be a part of either their own or one of the pools.
After the director, with the advice and assistance of the formulation committee, has formulated the proposed plan, he shall hold one or more public hearings in each proposed pooling area to be affected by the proposed plan for the purposes of considering modification of the proposed boundaries and formulating the pooling plan which will best accomplish the purposes of this chapter. Notice of the public hearings shall be given to each producer, including each member of cooperative marketing associations, who ships fluid milk to a distributor and to each distributor who receives fluid milk from producers. The procedures for the giving of notice and the conducting of the hearings shall be the same as those provided in Chapter 2 (commencing with Section 61801) for public hearings on stabilization and marketing plans.
The pooling plan shall prescribe the pooling area to be covered by each pool. Any such pooling area shall mean and include a large sales and consuming center together with all intermediate and secondary cities, towns and rural areas, which depend upon and receive their fluid milk supplies from a common producing and supply area, and including the fluid milk producers who produce fluid milk for such sales and consuming area, and including the fluid milk processing plants which receive, process or distribute the fluid milk supplies for such an area.
In establishing pool areas the director shall take into consideration the fact that some producers and processors may produce, or process and distribute, respectively, fluid milk for more than one pool area and therefore may qualify for inclusion and participation in more than one pool. Producers who so qualify for participation in more than one pool shall be permitted to do so on the basis of the proportions of their shipments of fluid milk to each pool area.
The formulation committee shall make recommendations to the secretary for inclusion in the pooling plan, and the secretary shall include in the pooling plan, all of the following:
The establishment of one or more pools throughout the state.
The base period to be used in determining the production and class 1 usage bases of each producer directly affected by the pooling plan. The base period shall, at the producer’s option, be his or her fluid milk production and usage in the pool area during the calendar year 1967 on an average daily basis or his or her production and usage in the pool area during the last six months of 1966 on an average daily basis.
As to a producer south and east of San Gorgonio Pass, his or her production base may, at his or her option, be four times his or her production in the months of December 1966, and January and February 1967.
If a producer, during any base period, had a valid contract with a distributor, or as a member of a cooperative association had an allocation, that provided that the distributor or cooperative association was required to accept a larger amount of fluid milk from the producer than the producer actually produced during the period, on proof satisfactory to the secretary of the contract or allocation, the producer may, at his or her option, have the amount specified in the contract or allocation established as his or her production base.
The establishment of a class 1 usage for each producer, which shall be the amount of his or her production of fluid milk accounted for as class 1, and any fluid milk sold for use as class 1 to a United States military installation but that was not accounted for as class 1.
The allocation to each producer within any pool of a pool quota, which, initially, shall be 110 percent of that producer’s class 1 usage, as determined in subdivision (c).
The determination of new class 1 usage and the allocation of pool quota based thereon in a manner consistent with effectuating the purposes of this chapter.
All producers who have not reached the equalization point shall share in the allocation of pool quota on the basis of a formula that gives substantial weight to each producer’s production base, but that, at the same time, allocates a larger percentage to hardship cases and low class 1 usage producers.
The allocations shall be made on the basis of each individual producer, with each cooperative association considered as a single producer. The cooperative associations of producers shall reassign any new quota to their own members subject to Section 62710.
Annually, within no more than four months after August 31 of each year, the pool quota shall be adjusted by each component to reflect any additional pool quota. Any increase in pool quota shall be determined from the amount of new class 1 and class 2 solids not fat usage that developed during the preceding annual period which exceeded the previous highest identical annual period since the 1988–89 fiscal year.
There shall be no downward adjustment of pool quota below the quota initially established pursuant to this chapter.
The establishment of production bases and pool quotas for new fluid milk producers who wish to enter the pooling plan after the effective date of the plan. The recommendations of the committee shall be reasonably equitable to both the new producers and to participating producers and consistent with effectuating the purposes of this chapter.
The transfer of production bases and pool quotas from one fluid milk producer to another under conditions so designed as to prevent abuses in the transfers and to avoid the development of excessive values for the bases and quotas.
Notwithstanding Section 62711, any provision which may be necessary to encourage the availability of market milk for those usages for that class 1 and class 2 milk is mandatory.
Any governmental agency that produces, processes, and consumes in its own facilities only its own production shall not be a pool plant. The plant shall operate outside the pool for accounting and settlement purposes unless the plant notifies the secretary of its election to participate in the pool. Any production of such a governmental agency that is transferred or diverted to a pool plant shall be classified for the purpose of settlement at the class 4a or class 4b price, whichever is lower.
Any and all other matters necessary and desirable to effectuate the provisions of this chapter.
The recommendations of the formulation committee and the pooling plan may provide exceptions from the plan’s general application for individual cases of hardship.
The director, on July 1, 1978, shall issue new pool quota sufficient to bring all holders of production base and pool quota as of that date (excluding any production base and pool quota issued pursuant to subdivision (f) of Section 62707), to the equalization point both on the fat and the solids-not-fat components.
Subsequent to July 1, 1978, all allocations of new class 1 usage determined under subdivision (e) of Section 62707, shall be made as follows:
Forty percent to producers whose total production base and pool quota are below the equalization point, to be allocated according to provisions adopted by the director in the applicable pooling plan.
Forty percent to producers whose total production base and pool quota are equal to or above the equalization point, this allocation to each such producer to be in the same ratio to the total allocation under this subdivision as that producer’s total holdings of quota bears to the total quota holdings of all equalized producers.
The remaining 20 percent shall be utilized for new producer allocations under subdivision (f) of Section 62707, according to the provisions in the then applicable pooling plan.
The terms “total production and pool quota” and “total quota” shall for the purposes of this subdivision, include allocations of production base and pool quota issued pursuant to subdivision (f) of Section 62707.
A person eligible for, but not yet assigned, a production base or pool quota, or both, pursuant to Section 62707 shall not be eligible for such a production base or pool quota, or both, unless he applies for such a production base or pool quota, or both, prior to January 1, 1971.
If a portion of the pool quota of any producer is transferred, it shall carry with it the same quantity of production base, except that if the pool quota exceeds the production base, the pool quota shall carry with it a percentage of production base equal to the percentage of pool quota which is so transferred. In either case, the producer making a partial transfer of his pool quota shall lose a percentage of his production base equal to the percentage of his pool quota which is so transferred. If a producer transfers his entire production base to one person, his entire pool quota shall also be transferred to the recipient of the production base. If a producer transfers his entire pool quota, his entire production base shall also be transferred to the recipients of the pool quota in a percentage equal to the percentage of pool quota received by each.
All transfers of production base and pool quota shall be recorded by the director in a manner consistent with the purposes of this chapter. Permanent records shall be maintained by the director of all transactions in either production base or pool quota.
Any person who purchases or otherwise acquires a producer’s business or a portion of a producer’s business prior to the operative date of the pooling plan shall succeed to that same proportion of the producer’s production base and pool quota.
In addition to the quota provided for under paragraph (3) of subdivision (b) of Section 62707.1, any quota returned to the director after April 30, 1981, shall be utilized for new producer allocations under subdivision (f) of Section 62707, according to the provisions in the then applicable pooling plan.
“Producer-handler” for purposes of this chapter is any person that is both a producer and a handler of fluid milk or fluid cream. For the purposes of this chapter, a producer-handler is a producer in any transaction which involves the delivery of bulk fluid milk or bulk fluid cream which was produced by him to a handler, or any nonprofit cooperative association of producers and is a handler in any transaction which involves the purchase by him of fluid milk or fluid cream, the pasteurization or packaging of fluid milk or fluid cream, or the sale or delivery of packaged fluid milk or packaged fluid cream to any person.
A producer-handler, including partnerships or corporations with common ownership, where the ownership of the producing entity is substantially proportionate to the ownership of the handling entity, shall have the option, at the time of the adoption of the initial pooling plan under this chapter, to have a production base and pool quota established as a part of the pooling plan provided for in this chapter, or to elect to operate entirely outside of the pool for producer payment purposes. This option is available only in such cases where the producer-handler on January 1, 1968, exercised complete and exclusive control over the operation and management of a plant at which he processes milk received from his own milk production facilities, except for purchases in bulk or packaged fluid milk, fluid skim milk or fluid cream which do not exceed an annual average of 50 gallons per day or 5 percent of his total fluid milk sales, whichever is greater, and only in such case as the producer-handler had retail sales for its own account of not less than 6623 percent of its total class 1 sales.
Any producer-handler electing to be excluded from the pool may at any later time be admitted to the pool, but with only the production base and pool quota to which he would have originally been entitled or his average daily production and class 1 usage during the 12 months preceding his entry into the pool, whichever is less.
Any producer-handler who qualified and elected an exemption under Section 62708 and continued eligibility for such exemption by complying with the requirements of that section shall be entitled after January 1, 1978, to continue such exemption provided that such producer-handler maintains retail sales for his own account of not less than 50 percent of his total class 1 sales and his purchases do not exceed 25 percent of his total fluid milk sales, except that any purchases exceeding 5 percent of such sales shall be from pool sources.
Any producer-handler qualifying for and electing an exemption under Section 62708, and maintaining such exemption under Section 62708 and this section, may, after January 1, 1978, elect during the 61-day period of August 1 through September 30 of any year to obtain a production base and pool quota under Section 62708 and enter the pool subject to the option provision of Section 62708.5.
A producer-handler, for purposes of this chapter, shall also include, as a separate and distinct category of producer-handlers, any producer and any handler who purchases or handles fluid milk or fluid cream produced by this producer if all of the ownership of the handler and all of the ownership of the producer is owned by the same person or persons and their ownership in the producer or handler is at least 95 percent identical for each person with their ownership in the handler or producer. This ownership shall not exceed 10 individual persons or owners of equitable interest in a partnership, corporation, or other legally constituted business association.
The ownership required by this section may be through a partnership, corporation, or other legally constituted business association if the entities are owned by the same person or persons, and there is at least 95 percent identity of ownership for each person with their ownership in the handler or producer. For purposes of this section, a “person” or “persons” includes the spouse, or other persons of lineal consanguinity of the first or second degree or collateral consanguinity to the fourth degree, and their spouses, and includes an adopted child the same as a natural child and kindred of the half blood equally with those of the whole blood of the owner and ownerships by persons so related shall be considered single ownership by one person. For purposes of this section, property pledged or hypothecated in any manner to others shall be considered “owned” if equitable ownership with management and control remain with the producer-handler.
Ownership as provided in this section shall have existed at the time of the base period selected by the producer under Section 62707 and at all other times thereafter.
Any such producer-distributor may, until August 6, 1969, do either of the following:
Join and operate wholly within the pool.
Have its entire original production base and pool quota determined during the base period it selected as a producer pursuant to Section 62707, established as a part of the pooling plan, and, nevertheless elect to operate entirely outside of the pool to the extent authorized by this section.
Any producer-handler who qualifies under this section and elects to operate outside the pool, to the extent of the authority granted, shall have the right to make deductions, as follows, from its own class 1 sales, excluding sales to a handler, whether in bulk or packaged, before being required to account to the pool:
If it has not sold production base and pool quota subsequent to February 9, 1977, it may deduct its original quota, and quota purchased prior to March 1, 1995, plus a daily deduction of 150 pounds of milk fat and 375 pounds of solids not fat.
If it has sold production base and pool quota subsequent to February 9, 1977, it may only deduct its original pool quota, and quota purchased prior to March 1, 1995.
The deductions from class 1 sales authorized pursuant to this section may be made irrespective of the fact that the average class 1 usage in the pool for that month may be less than 100 percent of the pool quota in that pool.
Any production subject to this section from the producer-handler selecting this option shall not have the right to participate in the quota pool, irrespective of the fact that the producer-handler did not sell all of the quota as class 1, and will participate in either the base pool or the overbase pool depending upon whether the total production base of the producer is sufficient to cover the milk delivered in excess of the class 1 usage exempted hereunder, otherwise the production in excess of the exempt producer-handler’s own class 1 sales, as defined in this section, shall be accounted for as overbase milk.
The fact that a producer-handler qualifies as to one of its milk production operations under this section does not prevent it from operating on an entirely separate nonqualifying basis (and, therefore, subject to pooling) at other milk production facilities, and with other nonqualifying persons at these other milk production facilities. A producer-handler can neither buy nor sell pool quota and transfer therewith the option granted under this section, but this shall not prevent him or her from purchasing or selling pool quota or production base as otherwise provided in this chapter.
If at any time ownership, as defined in this section, ceases, the producer-handler shall no longer be eligible for the options in this section, shall account to the pool as a separate handler, and shall be entitled to reentry into producer participation in the pool on the same basis as a producer-handler may under the last paragraph of Section 62708.
The production base and the pool quota for milk shipped through a cooperative association shall belong to the individual producer but shall be assigned to the custody and control of the cooperative association and the production base and pool quota may be transferred only in accordance with the articles of incorporation, bylaws, or marketing agreements of such association. The cooperative association shall continue to be treated as a single producer, both for producer payment purposes and for pool settlement purposes.
Except as provided in subdivision (h) of Section 62707, each producer shall be paid the highest usage for that amount of his or her fluid milk production that is equal to his or her pool quota and shall be paid the next highest usage for the difference between his or her pool quota and his or her production base under the production pool designated pursuant to this chapter and the lowest usage for all milk produced in excess of his or her production base under the overproduction pool designated pursuant to this chapter.
In calculating the pool value, the volume of milk that has been classified as restricted use market milk shall be credited to the handler at the class 4a or class 4b price, whichever is lower.
The secretary may require handlers, including cooperative associations acting as handlers, to make reports at any intervals and in any detail that he or she finds necessary for the operation of the pool. The secretary may impose and collect a civil penalty of one hundred dollars ($100) from any handler or cooperative association acting as a handler that does not file a report on the date specified by the secretary pursuant to this subdivision. Any funds collected pursuant to this subdivision shall be deposited in the Department of Food and Agriculture Fund and, upon appropriation by the Legislature, the funds may be expended for the purposes of this chapter.
For the purposes of enforcing this chapter, the secretary, through his or her duly authorized representatives and agents, shall have access to the records of every producer and handler. The secretary shall have at all times, free and unimpeded access to any building, yard, warehouse, store, manufacturing facility, or transportation facility in which any market milk or market milk product is produced, bought, sold, stored, bottled, handled, or manufactured.
Any books, papers, records, documents, or reports made to, acquired by, prepared by, or maintained by the secretary pursuant to this chapter, which would disclose any information about finances, financial status, or worth, composition, market share, or business operations of any producer or handler, excluding information that solely reflects transfers of production base and pool quota among producers, is confidential and shall not be disclosed to any person other than the person from whom the information was received, except pursuant to the final order of a court with jurisdiction, or as necessary for the proper determination of any proceeding before the secretary.
In conjunction with the pools authorized by this chapter, the secretary may require handlers to make payments into a settlement fund for fluid milk received and the secretary may provide for the disbursement of moneys from the settlement fund in the course of administering the pools. Handlers who have a financial obligation to the pool resulting from the operation of the pooling plan shall pay the obligations to the pool manager each month as requested. All of these moneys shall be deposited in a bank or banks approved by the secretary, and shall be paid out by the pool manager to handlers who have pool credits resulting from the operation of the pooling plan. All financial operations of each pool shall be audited by the department at least once annually. The secretary may require handlers to make such deductions from amounts due to producers as he or she finds are necessary to establish a reserve fund to insure prompt payment to producers.
The secretary may employ a pool manager to operate each pool and may permit the pool manager to employ such other necessary personnel and incur such expenses incidental to the operation of the pool as the secretary finds are necessary. The pool manager shall effectuate the purposes of Section 62711 by designating the percentage of each price class (i.e., classes 1, 2, 3, 4a, and 4b) to be paid within each pool settlement classification (i.e., quota pool, production pool, and overproduction pool), and in so doing he or she shall allocate the highest usage available, first to the quota pool, next to the production pool, and last to the overproduction pool.
All pool quotas initially determined pursuant to Section 62707 shall be recognized and shall not in any way be diminished.
After the director has established pools, each distributor shall report to the director the total receipts from the producers that are shipping to the distributor and the class 1, class 2, class 3, class 4a, and class 4b usage of the distributor and any other information determined by the director as necessary to carry out the operation of the pool.
The director shall have access to, and may enter during business hours, the premises of any distributor, handler, or producer, or any place where the books, papers, records, or documents pertaining to any transaction which relates to the acquisition or disposition of milk are kept. The director may inspect and copy these books, papers, records, or documents in any place within the state.
Any individual distributor purchasing milk from a producer shall continue to have the right to specify quality requirements that are more stringent than standards set by public regulatory or health authorities, and to specify these standards in a contract with the producer, provided that all contract quality requirements by the distributor are identical as to all producers under contract with that distributor. The distributor may reject milk for class 1 purposes if it fails to meet these specified standards, and may continue to reject such milk continuously until it again meets these standards. Any such rejected milk must be picked up separately from all other milk, and the contract shall give the producers the unqualified right to sell this rejected milk to others. In the event the rejected milk is not sold or used for class 1 purposes, the producer’s pool quota shall be reduced by an amount equal to the amount of pool quota milk rejected during the period in which it is rejected. The producer’s pool quota shall be restored to its full amount when all his production meets the specified standards.
The quality standards specified shall be subject to review by the director, and the purported failure of a producer to meet these standards shall be subject to impartial laboratory tests or such other procedures as the director may find necessary to prevent abuse.
Following the required hearing, the director shall submit the pooling plan to producers concerned for their approval or disapproval in a statewide referendum.
The approval or disapproval of individual producers voting in this referendum shall be kept confidential.
Each producer shall have one vote and such vote shall be individually cast so that there will be no block voting. The director shall prepare a ballot. The ballot form shall be substantially as follows:
Ballot
Shall the proposed pooling plan be made effective?
Yes ____ No ____
In addition, the ballot shall include a statement of the voter’s total production during the calendar month next preceding the month of the commencement of the referendum period, where and to whom such production was sold or otherwise disposed, and the producer’s name and address.
The director may reveal the names of producers whose votes have been received to both proponents and opponents of the plan.
The referendum shall be set for a period of 60 days. The director may at his own discretion or upon a proper showing, extend the referendum for a period not to exceed 30 days.
If the director finds that producers on a statewide basis have assented in writing to the proposed pooling plan submitted to them for assent, the director shall place the proposed pooling plan into effect. The director shall find that producers have assented to the plan if he finds on a statewide basis that not less than 51 percent of the total number of eligible producers in the state shall have voted in the referendum and finds one of the following:
Sixty-five percent or more of the total number of eligible producers who voted in the referendum who produced 51 percent or more of the total amount of fluid milk produced in the state during the calendar month next preceding the month of the commencement of the referendum period by all producers who voted in the referendum approve the plan.
Fifty-one percent or more of the total number of eligible producers who voted in the referendum who produced 65 percent or more of the total amount of fluid milk produced in the state during the calendar month next preceding the month of the commencement of the referendum period by all producers who voted in the referendum, approve the plan.
If the plan is not approved, the director may resubmit the plan, or submit a new plan, at any time after six months from the date the director announces the plan was not approved.
The director may amend the plan, after notice and public hearing has been given in the same manner as is provided in Chapter 2 (commencing with Section 61801) for stabilization and marketing plans, if he finds that the amendment is necessary to effectuate the purposes of this chapter. After the hearing, the director, upon his own motion, may make nonsubstantive amendments to the plan. The director may make substantive amendments to the plan only if producers assent to the proposed amendments at a referendum conducted in the same manner and in the same number as provided for the referendum approving the pooling plan.
The director may terminate the plan on a statewide basis after notice and public hearing has been given in the same manner as is provided in Chapter 2 (commencing with Section 61801) for stabilization and marketing plans, if he finds that the plan is no longer in conformity with the standards described in, or will not tend to effectuate the purposes of, this chapter. The hearing may be held upon the motion of the director, and shall be held upon receipt of a petition signed by producers representing not less than 25 percent of the total number of all producers and not less than 25 percent of the total production of all producers.
The director shall submit the termination of the plan on a statewide basis in a referendum conducted in the same manner as provided for initial approval of the plan if, after notice and public hearing has been given in the same manner as is provided in Chapter 2 (commencing with Section 61801) for stabilization and marketing plans, he finds that a substantial question exists as to whether or not producers desire the plan to continue and shall submit the plan for termination upon receipt of a petition requesting termination signed by producers representing not less than 25 percent of the total number of all producers and not less than 25 percent of the total production of all producers. The plan shall be terminated if termination is favored by the same percentage of producers producing the same amount of fluid milk as required to initiate the plan.
The pools established shall be administered by the director. Each distributor shall deduct from moneys owed producers and pay to the director the amount necessary to cover the cost of administering the pool plan, but not to exceed two cents ($0.02) per hundredweight of fluid milk.
The amount of such fee shall be paid to the director on or before the 30th day following the last day of the month in which such fluid milk or fluid cream was received.
The director may fix such fee at a lesser amount and may adjust such fee from time to time.
In the event any distributor fails to pay to the director the fee provided for in this section on or before the date specified in this section, the director may add to such unpaid fee an amount not exceeding 10 percent of such unpaid fee to defray the cost of enforcing the collection of such unpaid fee. The distributor shall not be entitled to pass this penalty on to the producer.
All moneys received under the provisions of this section shall be deposited in the State Treasury to the credit of the Department of Agriculture Fund.
The director shall, from nominations submitted by producers, appoint a review board composed of no less than 12 members to advise him in the administration of the pool plan. The director shall appoint three members of the first board for a one-year term, three members for two-year terms, three members for three-year terms, and three members for four-year terms. Thereafter all appointments shall be for a term of four years and no member may be appointed to more than two four-year terms. The board members shall be producers and not more than three may be producer-managers of associations and not more than two shall be producer-handlers. The board members shall give proportionate representation to all areas of the state, with due regard to the relative production and usage of fluid milk in the various areas of the state. The director may appoint one additional member on the board, who shall be a public member. Each member of the review board shall be paid not less than twenty-five dollars ($25) or more than thirty-five dollars ($35) per day plus travel expenses, including expenses for lodging and meals, which are incurred in the attendance at board meetings or in conducting the business of the board; all per diem and expenses being subject to approval by the director.
Upon the director’s request, the board shall submit to the director the names of three or more natural persons, each of whom shall be a citizen and resident of this state and not a producer, shipper, or processor nor financially interested in any producer, shipper, or processor, for appointment by the director as a public member of the board. The director may appoint one of the nominees as the public member on the board. If all nominees are unsatisfactory to the director, the board shall continue to submit lists of nominees until the director has made a selection. Any vacancy in the office of the public member of the board shall be filled by appointment by the director from the nominee or nominees similarly qualified submitted by the board. The public member of the board shall represent the interests of the general public in all matters coming before the board and shall have the same voting and other rights and immunities as other members of the board.
It is hereby declared, as a matter of legislative determination, that producers appointed to the review board pursuant to Section 62719 are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such board, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
No pooling plan formulated pursuant to this chapter shall restrict the free movement of fluid milk and no pooling plan shall result in an unequal raw product cost between distributors in the same marketing areas.
No pooling plan shall control the production of fluid milk except insofar as may otherwise be specifically authorized in this chapter.
Pooling plans shall not apply to the production of goats milk or producer-handlers who produce and sell less than 500 gallons of fluid milk used for class 1 purposes per day unless they specifically request entry into the pool at the time of the adoption of the initial pooling plan for that area. Producers of certified milk or guaranteed raw milk shall have the option, at the time of the adoption of the initial pooling plan under this chapter, to be subject to the plan, and accordingly to have a production base and pool quota established for the producer, or to be excluded from the plan.
Any such producer of less than 500 gallons of fluid milk per day, or any such producer of certified milk, or any such producer of guaranteed raw milk, electing to be excluded from the plan, may at any later time be admitted to the pool, but with only the production base and pool quota to which he or she would have originally been entitled or his or her existing production and average daily class 1 usage during the 12 months preceding his or her entry into the pool, whichever is less.
Any producer claiming exemptions from the provision of any pooling plan by reason of the provisions of Section 62708, 62708.1, or this section, who loses his or her exemption by failure to meet the requirements for exemptions set forth in those sections shall automatically be deemed to have applied for and become a part of a producer pool on September 1st following any year ended August 31st during which the director determines he or she is no longer entitled to exemption, and his or her admittance into such a pool shall be on the basis of the production base and pool quota calculations as set forth in those sections.
Unless otherwise defined in this chapter, the definitions contained in Chapter 2 (commencing with Section 61801) govern the construction of this chapter.
For the purposes of this chapter, the following definitions shall apply:
The terms “distributor” and “processor” shall have the same definition as the term “handler” contained in Section 61826.
“Equalization point” shall mean that point at which pool quota held is equal to 95 percent of production base held.
“Fluid cream” shall have the same definition as the term “market cream” contained in Section 61827.
“Fluid milk” shall have the same definition as the term “market milk” contained in Section 61828.
“Fluid skim milk” shall have the same definition as the term “market skim milk” contained in Section 61829.
This chapter does not modify the provisions of Chapter 1 (commencing with Section 61301) nor Chapter 2 (commencing with Section 61801) of this part, except as may be necessary to effect the purposes of this chapter. If necessary to effect the purposes of this chapter, the director, in establishing the minimum prices which shall be paid for fluid milk to producers, may establish minimum producer prices applicable at the producer’s place of production.
The director is authorized to use money in the Department of Food and Agriculture Fund derived from assessments and fees collected pursuant to Chapter 2 (commencing with Section 61801), to the extent necessary to defray the expenses incident to the formulation and making effective the pooling plan pursuant to this chapter, if, as soon as sufficient money is available from fees collected pursuant to this chapter, the amount shall be repaid.
The director is the instrumentality of this state for the purpose of administering and enforcing the provisions of this chapter and to execute the legislative intent which is expressed in this chapter, and is hereby vested with the administrative authority which is described in this chapter. Notwithstanding other laws to the contrary, in the event a milk marketing order under the jurisdiction of the United States Department of Agriculture or other appropriate federal agency, is created by referendum or under the applicable laws and procedures relating thereto, in this state or in any geographical area within this state, the provisions of this chapter or any part thereof which is in conflict with such federal order, or which is unnecessary or is a duplication thereof, shall be suspended in the geographical area covered by and during the existence of such federal order. The director shall take such steps and procedures as are necessary to wind up and conclude the administration and enforcement of the provisions of this chapter, or any part thereof, prior to the suspension date.
It is the intent of the Legislature that the power conferred in this chapter shall be liberally construed. The provisions of this chapter or subsequent amendment are severable. If any section, subdivision, paragraph, sentence, clause, or phrase of this chapter should be declared or held unconstitutional or invalid for any reason, such unconstitutionality or invalidity shall not affect the validity of any other provision of this chapter. The Legislature hereby declares that it would have enacted each other such section, subdivision, paragraph, sentence, clause, or phrase of this chapter irrespective of the fact that one or more sections, subdivisions, paragraphs, sentences, clauses, or phrases has been declared unconstitutional or invalid. Provided further that any such finding of invalidity or unconstitutionality shall not invalidate, affect or impair pool quotas and production bases heretofore issued under the Gonsalves Milk Pooling Act or pooling plan promulgated thereunder.
The director shall terminate any pooling plan in effect in any marketing area without notice or hearing at any time that there ceases to be a stabilization and marketing plan in force and effect in such marketing area, establishing minimum prices to be paid to producers, unless minimum prices payable by distributors to producers for fluid milk in such marketing area are subject to a federal milk marketing agreement or order which is not in conflict with, or in duplication of, the pooling plan.
The director or his assistants, deputies, agents, or other employees, are authorized to travel out-of-state in order to carry out the purposes of this chapter.
Any violation of any provision of this chapter, or any regulations adopted pursuant to this chapter, shall be punishable, and shall have the same effect, as a violation of Chapter 2 (commencing with Section 61801).
This chapter shall be known as the Gonsalves Milk Pooling Act.
CHAPTER 3.5. Milk Pooling [62750. - 62757.]
Notwithstanding any provision of Chapter 3 (commencing with Section 62700) in conflict with this section or any pooling plan for market milk in effect under that chapter, effective January 1, 1994, each producer shall be paid the amounts determined in accordance with this section for his or her pool quota production and for all production in excess of his or her pool quota.
For all milk fat, whether or not equal to his or her pool quota, an amount determined by dividing the value of all milk fat in the pool by the amount of milk fat produced.
Transportation allowances that are provided for in the pooling plan shall not be deducted from the quota milk of any region, but shall be deducted from the total solids not fat pool revenue before any price is determined for quota and nonquota solids not fat.
Regional quota adjusters shall continue to be subtracted from the quota price in the established areas as specified in the pooling plan for market milk. However, the hundredweight price specified shall be converted to a solids not fat equivalent value, and the adjustments for the effect of those regional quota adjusters shall be applied to the solids not fat revenue.
After taking into consideration the effect of the regional quota adjusters, the solids not fat announced quota price for those areas in which there is no regional quota adjuster shall be nineteen and one-half cents ($0.195) per pound greater than the announced solids not fat price for all milk produced in excess of pool quota.
In calculating the pool value, the volume of milk that has been classified as restricted use market milk shall be credited to the handler at the class 4a or class 4b price, whichever is lower.
Except as provided in Section 62756, this chapter shall remain operative until the secretary certifies to the Secretary of State that producers have voted in a referendum to suspend the operation of this chapter.
The secretary may hold a public hearing at any time to consider whether this chapter shall be suspended, and shall hold a public hearing to review a petition requesting the suspension of this chapter signed by not less than 25 percent of the producers who produced not less than 25 percent of the total amount of fluid milk produced in this state during the preceding calendar month.
The secretary shall establish a period of 60 days in which to conduct the referendum. The secretary may extend the referendum period an additional 30 days if he or she determines that the additional time is needed to adequately conduct the referendum, and may prescribe additional procedures necessary to conduct the referendum.
Each producer shall have one vote and the vote shall be individually cast in order to prevent block voting. The secretary shall prepare a ballot. The ballot form shall be substantially as follows: Ballot
Shall Chapter 3.5 (commencing with Section 62750) of Part 3 of Division 21 of the Food and Agricultural Code be continued in effect?
Yes No
In addition, the ballot shall include a statement of the voter’s total production during the calendar month next preceding the month of the commencement of the referendum period, where and to whom that production was sold or otherwise disposed, and the producer’s name and address and pooling numbers.
The secretary shall find that producers have assented to the continued operation of this chapter if the secretary finds on a statewide basis that not less than 51 percent of the total number of eligible producers in the state have voted in the referendum and that 51 percent or more of the total number of eligible producers who voted in the referendum and who produced 51 percent or more of the total amount of fluid milk produced in the state during the calendar month next preceding the month of the commencement of the referendum period by all producers who voted in the referendum, approve the continued operation of this chapter.
If the secretary finds that a vote favorable to the continued operation of this chapter has not been given, the secretary shall so certify to the Secretary of State and shall declare this chapter inoperative.
The secretary may reveal the names of producers whose votes have been received to both proponents and opponents of the continued operation of this chapter. However, whether individual producers voted for or against the continued operation of this chapter shall be kept confidential.
If the continued operation of this chapter is not approved, the secretary shall continue in operation the pooling plan in effect on December 31, 1993.
Notwithstanding Section 62751, this section shall remain operative notwithstanding a vote by producers to suspend the operation of this chapter.
If a federal milk marketing order is established in California, the secretary is authorized to establish a stand-alone quota program, the details of which shall be included in the pooling plan. The stand-alone quota program may be funded by an assessment on milk produced in the state.
The secretary may require handlers, including cooperative associations acting as handlers, to make reports necessary for the operation of the stand-alone quota program.
CHAPTER 3.6. Dairy Marketing Study [62765. - 62765.]
The Department of Food and Agriculture, after consulting with its dairy advisory committee, shall complete a study of various proposals affecting regulated milk pricing and pooling programs by April 15, 2002. In particular, it shall study the following:
The impact of the current federal forward price contract program on the regulated pricing and pooling programs operating in federal milk marketing orders and review other risk management tools available to dairy farmers and dairy processors.
The impact of current forward price contract programs administered by California dairy farmer cooperatives on participating producers, on proprietary processors in procuring milk, and on affected products in the marketplace and the comparability of those programs with those operating within federal milk marketing orders.
The impact of the various forward contract programs in use or proposed on pool revenue and price when those contracts are performed within the California milk pooling program.
The impact of the various forward contract programs in use or proposed on pool revenue and price when those contracts are performed outside the California milk pooling program.
The study may also include a review of the impact of requiring class 2 and 3 milk to be reported to the pool.
A review of the advantages and disadvantages of a protein pricing payment system that is similar to the system used in federal milk marketing orders.
This study shall be submitted to the respective chairpersons of the Senate Committee on Agriculture and Water Resources and the Assembly Committee on Agriculture.
CHAPTER 4. Marketing of Edible Nuts [62801. - 62834.]
ARTICLE 1. Contract Requirements [62801. - 62803.]
Except as otherwise provided in Section 62803, or unless the parties agree otherwise, every contract for the sale of edible nuts shall be in writing and shall state the full purchase price in a definite sum which is to be paid in accordance with the terms of the contract and, if the price is to be paid upon the basis of units or measures, the contract shall specify or describe the unit and state the full unit price. Written contracts under this section shall state the method by which the price is to be determined.
Any purchaser of edible nuts which are delivered pursuant to a contract entered into on or after the effective date of the act amending this section in the 1983–84 Regular Session of the Legislature and which is in violation of this article is liable to the seller for the reasonable value of the nuts as of the time of delivery and, in addition, is liable to the seller for a penalty of twice the difference between any amounts paid to the seller and the reasonable value of the nuts at the time of delivery. Any purchaser of edible nuts which are delivered pursuant to a contract that was entered into prior to the effective date of the act amending this section in the 1983–84 session which is in violation of this article is liable to the seller for the reasonable value of the nuts as of the time of delivery and, in addition, is liable to the seller for a penalty of twice the reasonable value of the nuts.
This article is not applicable to any contract between any member of any cooperative agricultural marketing association, which is operating under, and by virtue of, the laws of this state, any other state, the District of Columbia, or the United States, and the cooperative agricultural marketing association.
ARTICLE 2. Records [62831. - 62834.]
The commissioner of each county, under the supervision of the director, shall enforce this article insofar as it relates to the keeping of the records which are required to be kept by this article.
Every person that purchases English walnuts or almonds for purposes of processing or resale from any person, except a licensed dealer, broker, commission merchant, agricultural cooperative, or wholesaler, shall keep a record of the name and address of the person from whom each lot of such walnuts or almonds was purchased. If such walnuts or almonds are delivered to the purchaser by motor vehicle, the purchaser shall record either the license number of the vehicle or the driver’s license number of the person who makes delivery of each lot of such nuts.
The record and statement required to be made by this article shall be kept for one year from the date of purchase or delivery, whichever is later, and shall be made available for inspection upon request by any peace officer.
Any violation of this article is a misdemeanor.
CHAPTER 5. Marketing of Avocados [63001. - 63004.]
The commissioner of each county, under the supervision of the director, shall enforce this chapter insofar as it relates to the keeping of the records which are required to be kept by this chapter.
Every person who purchases or receives on consignment avocados for purposes of processing or sale from any person, except a grower, licensed dealer, broker, commission merchant, agricultural cooperative, or wholesaler, shall keep a record of the name and address of the person from whom each lot of such avocados was purchased or received on consignment. The purchaser or consignee shall also record the driver’s license number or other reasonable identification of the person who makes delivery of each lot of such avocados.
The record and statement required to be made by this chapter shall be kept for one year from the date of purchase or delivery, whichever is later, and shall be made available for inspection upon request by the commissioner.
Any violation of this chapter is a misdemeanor.
CHAPTER 6. Marketing of Processing Strawberries [63101. - 63129.]
ARTICLE 1. General Provisions [63101. - 63105.]
It is the declared policy of the state to eliminate fraud, misinformation, deception, and other unfair trade practices that have existed in the processing strawberry industry and are detrimental to producers, processors, and consumers of processing strawberries due to the unavailability of accurate and reliable market price information. In order to prevent fraud, misinformation, deception, and other unfair trade practices, it is hereby declared as the policy of the state that the purchase of processing strawberries be subject to this chapter. The necessity for the enactment of this chapter, including the exemptions contained within it, is declared to be for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
“Processing strawberries” means strawberries produced, in whole or in part, for the purpose of being ultimately processed into a use other than fresh consumption.
“Purchase price” means all price and price terms for processing strawberries, including any and all forms of compensation from processors to producers.
“Integrated producer-processor” means any producer who processes strawberries of his or her own production either as an individual, a business entity, or as a separate business entity operating as parent and subsidiary, or otherwise, which are under the same ownership and control, and who retains title to the processed strawberries, including, but not limited to, all rights to hypothecate the processed strawberries.
This chapter covers any marketing order issued pursuant to Chapter 1 (commencing with Section 58601) of Part 2 which exclusively affects processing strawberries.
ARTICLE 2. Marketing Orders [63121. - 63129.]
Any marketing order affecting processing strawberries shall require that each time during a marketing season that a processor establishes or changes purchase prices for processing strawberries, the processor shall, on or before the effective date of the purchase prices, post a schedule of the purchase prices at each receiving station for which each schedule applies, and file each schedule with the marketing order advisory board established under the marketing order. The advisory board shall, within five days of the effective date of each purchase price schedule, mail or deliver a copy of the schedule to every other processor. Except as otherwise provided in this chapter, a processor shall acquire processing strawberries at the filed purchase price.
The director shall adopt a seasonal marketing regulation pursuant to Section 59171 for price filing and posting. The regulation shall not become effective prior to April 1 of any year.
The director, with the assistance of the advisory board, shall establish administrative rules and regulations that provide for, but are not limited to, the specific manner of filing, posting, and revising purchase prices and any additional action necessary to assure adequate public disclosure of purchase prices.
Any contract which is not exempt pursuant to Section 63124, including, but not limited to, any contract which makes a reference to a posted price for the purchase of strawberries by a processor from a producer and which also provides an additional purchase price, as defined by the director by regulation pursuant to Section 63123, shall be filed with the advisory board and posted in the manner prescribed by the director.
The following are exempt from this chapter:
An integrated producer-processor. This exemption does not apply to the acquisition of strawberries for processing from any person who is not involved in a proprietary manner in the integrated producer-processor operation and who is not compensated for strawberries delivered through a proportionate share of the profits of the business entity.
A processor registered in the state as a bona fide nonprofit cooperative when it acquires strawberries from members of the cooperative. This exemption does not apply to the acquisition of strawberries for processing from any person who is not a member of the cooperative.
A contract with a fixed purchase price for the purchase of processing strawberries by a processor from a producer which is entered into and filed with the advisory board on or before the effective date of any seasonal marketing regulation for price filing and posting adopted pursuant to this chapter.
Any contract for the purchase of strawberries for processing by a processor from a producer entered into prior to January 1, 1985, and filed prior to the effective date of any seasonal marketing regulation for price filing and posting adopted pursuant to this chapter.
A contract that makes a reference to a processor’s posted price for the purchase of processing strawberries by the processor from a producer which does not contain an additional purchase price, as defined by the director by regulation pursuant to Section 63123.
Notwithstanding any other provision of this chapter, any contract which is exempt from this chapter pursuant to subdivision (a) shall be filed with the advisory board in the manner prescribed by the director pursuant to Section 63123.
Information obtained by the advisory board pursuant to this chapter shall be maintained in confidence. However, the advisory board may disclose, upon request, whether a particular producer’s processing strawberries are covered by an exempt contract or other arrangement.
The director shall actively supervise the requirements of this chapter and conduct an annual review of its provisions. The review may include an analysis of written reports from processors which the director is authorized to require, an investigation of industry conditions, an audit of processor records required to be maintained pursuant to this chapter, and any other actions relating to this chapter that are deemed necessary by the director.
On or before the last day of each year in which a marketing order exclusively affecting processing strawberries is in effect, the director shall prepare and file with the Legislature a written report of the operations of this chapter and shall make recommendations regarding its various provisions. Each report and recommendation shall be based on determinations made by the director as a result of the annual review specified in Section 63125.
The director shall suspend the requirements of this chapter if he or she determines as a result of the annual review and states in the annual report required in Section 63126 that price filing and posting is not required to prevent unfair trade practices. The suspension shall apply to the year following the determination unless legislation requiring the adoption of a seasonal marketing regulation for price posting is enacted prior to April 1 of that year.
This chapter does not apply to the acquisition of strawberries for processing by a processor from another processor.
The director shall amend any existing marketing order exclusively affecting processing strawberries in a manner necessary to conform to this chapter without the necessity of complying with any provisions of Chapter 1 (commencing with Section 58601) of Part 2 including those sections relating to the amendment of a marketing order.
DIVISION 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS [63901. - 79995.]
PART 1. LEGISLATIVE DECLARATIONS AND GENERAL PROVISIONS [63901. - 63906.]
The Legislature hereby finds and declares that the agricultural and seafood industries are vitally important elements of the state’s economy and are supported by state established commissions and councils specified in this division that are mandated to enhance and preserve the economic interests of the State of California and are intended to do all of the following:
Implement public policy through their expressive conduct. The programs conducted by these commissions and councils are among the broad range of state-mandated regulatory programs that are funded by the public through user fees assessed in accordance with each person’s relationship to a particular program.
Reflect a continuing commitment by the State of California to its agricultural and seafood industries that are integral to its economy. These industries are a source of substantial employment for the state’s citizens, produce needed tax revenues for the support of state and local government, encourage responsible stewardship of valuable land and marine resources, and produce substantial necessary food and fiber for the state, nation, and world.
Represent a policy of support for persons engaged in the agricultural and seafood industries, which are critically important elements of the state’s economy. These commissions and councils are particularly important for the continued success of California’s unique agricultural and seafood industries which tend to be decentralized with many small entities operating in diverse locations.
Provide benefit to the entire industry and all of the people of this state. The commissions and councils are not enacted, and are not intended to produce measurable benefit, on an individual basis, and their successes should be evaluated by analyzing the extent to which they have improved the overall conditions for the particular commodity subject to the commission’s or council’s jurisdiction with resulting benefit to the overall economy of the state.
Enhance the image of California agricultural and seafood products to increase the overall demand for these commodities. In this fashion, the Legislature intends that the commissions and councils operate primarily for the purpose of creating a more receptive environment for the commodity and for the individual efforts of those persons in the industry, and thereby compliment individual, targeted, and specific activities.
The Legislature further finds and declares that commission and council activities are essential to the goals and interests of the State of California that include, but are not limited to, all of the following:
Research, including, but not limited to, production research, food safety research, marketing research and trends analysis, and research relating to crop protection and production materials.
Elimination of tariff and nontariff trade barriers.
Consumer education relating to the health and other benefits of using and consuming agricultural and seafood products.
Consumer education relating to environmental protection and conservation.
Demand-side regulation that stabilizes the flow of product to market through promotion.
Analysis of the impact of federal, state and foreign regulation.
Cooperative crisis resolution that impacts public health and safety and the continued stability of the industry.
Participation with state and federal agencies in negotiating with other governments relating to market access issues such as phytosanitary issues, shipping protocols, crop protection residues, packaging, labeling, and other issues raised by countries imposing trade barriers on the import of agricultural and seafood products into their markets.
Industry self-regulation to establish and maintain grade, size, and maturity standards and to stabilize the flow of product to market.
The Legislature further finds and declares that mandated cooperative efforts engaged in by the commissions and councils have proven to be effective methods to avoid economic waste and maintain stable agricultural markets. These cooperative efforts are intended to work subject to, and together with, the constraints placed on the agricultural industry by state and federal statutes and regulations and international restrictions.
In addition to any specific provisions regarding grievance procedures, and consistent with the nature of the commissions and councils established pursuant to Part 2 (commencing with Section 64001) and the desire to resolve conflicts in the most timely and cost-effective manner, any person subject to this division shall file a grievance with the appropriate commission or council, and exhaust all administrative remedies prior to the initiation of any litigation based on a claim, express or implied, that the activities undertaken by the commission or council do not directly or materially advance the interests of the State of California as set forth in this part.
In addition to the authority granted to any commission by Part 2 (commencing with Section 64001), those commissions may commence or participate in administrative and civil actions relative to the activities of the commission.
The Legislature finds and declares that the councils and commissions operating pursuant to this division are duly constituted authorities of this state for purposes of subdivision (i) of Section 610 of Title 7 of the United States Code.
Any commission or council may petition the secretary to adopt and administer any activity authorized pursuant to the California Marketing Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of Division 21) relating to the commodity that is covered by any commission or council. Adoption and administration of the activity by any commission or council shall be in accordance with the act.
Any commission or council may petition the secretary to administer any activity that the commission or council is authorized to engage in, and that is authorized pursuant to the California Marketing Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of Division 21), relating to the commodity that is covered by any commission or council. If the secretary accepts the petition, the commission or council shall reimburse the secretary for his or her actual cost for administering the activity. The secretary may waive referendum under the act if, following a hearing, the secretary determines that there is no substantial question of opposition to doing so among affected assessment payers. Administration of the activity by the secretary shall be in accordance with the act.
As determined by the secretary, the governing body of the commission or council may serve as the advisory board with respect to any activity recommended and approved pursuant to this section.
As used in this section, “substantial question of opposition” means opposition to the substance of the petition among currently affected assessment payers, and is not intended to mean a particular number of assessment payers.
Notwithstanding Section 11123 of the Government Code, all of the following shall apply to a meeting held by teleconference under this division by a commission or council:
A member of the commission or council participating by teleconference shall be listed in the minutes of the meeting and shall provide notice of his or her participation by teleconference at least 24 hours before the meeting.
The commission or council shall designate a primary physical meeting location where participants may physically attend the meeting and participate. At least one member of the commission or council shall be in attendance at the primary physical meeting location.
The teleconference phone number, and, if applicable, the Internet Web site or other information indicating how the public can access the meeting remotely, shall be included in the agenda, which shall be available to the public.
Nothing in this section shall exempt the commission or council from providing information regarding the physical location of a commission or council meeting or any teleconference participation information, including the identity of a commission or council member who might be participating by teleconference.
Prior to holding a meeting by teleconference pursuant to this section, the commission or council shall adopt teleconferencing guidelines to address issues that include, but are not limited to, cancellations as a result of technical difficulties, ensuring transparency, and public participation.
PART 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS [64001. - 79995.]
CHAPTER 1. The Dairy Council of California Law [64001. - 64323.]
ARTICLE 1. Short Title and Definitions [64001. - 64017.]
This chapter shall be known as the Dairy Council of California Law.
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Council” means the Dairy Council of California.
“Dairy products” includes milk and any derivative of milk that is in natural, processed, or manufactured form, or that constitutes a part of another article, commodity, or product.
“Ex officio member” means a nonvoting member of the council.
“Fiscal year” means the period from July 1 in any one year to and including June 30th of the following year.
“Handler” means any person that, as owner, agent, or broker, purchases, or otherwise acquires from a producer or another handler, possession or control of milk, skim milk, or cream, in the form of unprocessed milk, skim milk, or cream, or in any other unprocessed form, for the purpose of processing it, and includes any person who secures custom processing services on an ongoing basis.
“Milk” means the lacteal secretion that is obtained from the udders of cows.
“Class I milk” has the meaning of that term as defined in Section 1051.40 of Title 7 of the Code of Federal Regulations, and includes both pooled and nonpooled milk.
“All other usages” means usages other than class I for milk, including grade B milk received by handlers.
“Or” and “and,” may be construed as interchangeable, as the context may require.
“Person” means an individual, corporation, partnership, limited liability company, trust, association, cooperative association, and any other business unit or organization.
“Processing” means separating, standardizing, pasteurizing, sterilizing, evaporating, condensing, canning, bottling, packaging, or otherwise preparing milk to manufacture or produce any dairy product. “Processing” does not, however, include separating by a producer, on the dairy where the milk is produced, and milk separated by a producer on the dairy shall not be deemed to have been processed.
“Producer” means any person that produces milk and sells it, or delivers possession or control of it, to a handler, in the form of unprocessed milk or cream, or in any other unprocessed form.
“Solids-not-fat” means any milk solids that are not fat, measured using the standard milk testing methods in a Federal Milk Marketing Order, established by the final rule, effective October 17, 2018, published by the United States Department of Agriculture in Volume 83 of the Federal Register, beginning on page 26547, on Friday, June 8, 2018.
ARTICLE 2. General Provisions [64041. - 64043.]
It is hereby declared, as a matter of legislative determination, that the provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting and furthering the public health and welfare. It is further declared that the dairy industry of this state is affected with a public interest, in that, among other things:
The production, processing, manufacture, and distribution of milk and other dairy products constitute a paramount industry of this state which not only provides substantial and required revenues for the state and its political subdivisions, and employment and a means of livelihood for many thousands of its population, but also furnishes essential foods that are vital to the public health and welfare.
The stabilization, maintenance, and expansion of the dairy industry of California, and of the state, nationwide, and foreign markets for its products, are necessary to assure the consuming public an adequate supply of foods which are indispensable in a proper human diet, to protect, for the state and its political subdivisions, a necessary source of tax revenue, to provide and maintain an adequate standard of living for a great segment of the population of this state, to maintain proper wage scales for those engaged in the dairy industry, and to maintain existing employment.
Due to the significant role of milk and other dairy products in balanced human nutrition and the maintenance of public health, it is appropriate to provide for the dissemination of accurate and scientific information relative to the healthful qualities of dairy products, and to make the public thoroughly aware of that information.
The purposes of this chapter are as follows:
To enable the dairy industry, with the aid of the state, to develop, maintain, and expand the state, national, and international markets for dairy products that are produced, processed, or manufactured in the state, and the use and consumption of those dairy products in the state.
In aid, but not in limitation, of this purpose, to authorize and enable the secretary to formulate and effectuate, directly or in cooperation with other agencies and instrumentalities specified in this chapter, consumer, or other, educational programs designed to encourage the use and consumption of milk and other dairy products as part of balanced human nutrition.
To provide funds for the administration and enforcement of this chapter by assessments to be paid by producers and handlers in the manner prescribed in this chapter.
This chapter shall be liberally construed. If any section, sentence, clause, or part of this chapter is, for any reason, held to be unconstitutional or invalid, that decision does not affect the remaining portion of this chapter but the unconstitutional or invalid provision is separable from the valid parts of this chapter.
ARTICLE 3. Administration [64071. - 64073.]
The secretary shall administer and enforce this chapter, and may exercise any or all of the administrative powers that are conferred by Sections 11180 to 11191, inclusive, of the Government Code upon a head of a department. In order to effectuate the declared purposes of this chapter, the secretary may contract to carry out the declared intent and purposes of this chapter.
The secretary shall, from records of the department or any other reliable source, maintain a list of producers and handlers.
The secretary may purchase general liability insurance for the council in an amount the secretary determines as necessary. The cost of the insurance shall be paid by the council. The insurance policy shall name the secretary, in the secretary’s official capacity, and the council as insured parties for claims made against the council in its advisory capacity to the secretary or against the secretary regarding the activities of the council. The secretary, after consultation with the Attorney General, may refer claims to the insurance carrier for appropriate action. In the alternative, the secretary may require that claims be handled in the manner otherwise specified in this chapter.
ARTICLE 4. Dairy Council of California [64101. - 64118.]
There is in the state government the Dairy Council of California, which shall consist of no less than 24, nor more than 26, members. All members of the council shall be appointed by the secretary and may hold office at the pleasure of the secretary. The membership of the council shall be as follows:
There shall be 12 members that are actually engaged in the production of milk. These 12 members are the producer members of the council.
There shall be 12 members that are handlers. These 12 members are the handler members of the council.
Upon the recommendation of the council, the secretary may appoint one person as a voting member who is not a producer or handler, and who shall represent the public.
Upon the recommendation of the council, the secretary may appoint up to two people as nonvoting ex officio members of the council who have expertise that is beneficial to the council.
Officials or members, otherwise qualified, of corporations, associations, and other business units, that are actually engaged in business as producers or handlers are eligible to be members of the council.
The term of office of a member of the council shall be three years.
Any vacancy occurring on the council during an unexpired term of office may be filled by the secretary for the unexpired term. In filling a vacancy, the secretary may consider recommendations from the remaining members of the council. The secretary may remove any member of the council for cause deemed sufficient by the secretary and the vacancy caused by removal shall be filled in the manner as provided in this section for the unexpired term.
Members of the council shall be nominated and appointed pursuant to procedures recommended by the council and approved by the secretary. The procedures may include, but are not limited to, nominations, preference voting, and district representation.
A majority of the members of the council shall constitute a quorum for the transaction of all business, including the election of officers.
The council shall select from its members, to serve at its pleasure, a chair and vice chair who, together with at least three, and no more than five, other members selected by the council, shall constitute the executive committee of the council. The executive committee shall have and exercise those powers of the council as the council may delegate to it.
The council shall have two regular meetings in each year at times and places fixed by the council. The times for regular meetings shall be fixed so that there is an interval of at least four calendar months between all regular meetings. The council may meet in special meetings at any time and place at the call of the chair. The executive committee shall have four regular meetings each year at times and places fixed by it, and may meet in special meetings at any time and place at the call of the chair.
The appointed members of the council shall receive one hundred dollars ($100) per day for each day spent in actual attendance at the meetings or on the business of the council and shall be reimbursed for necessary traveling and other expenses that are incurred in the performance of their official duties.
No member of the council, except for a member of the executive committee, shall receive compensation for more than 10 days’ service per year. No member of the executive committee shall receive compensation for more than three days’ service per month.
The members of the council who are duly appointed by the secretary, and employees of the council, shall not be held responsible individually in any way, to any person, for liability on any contract or agreement of the council. All salaries, expenses, costs, obligations, and liabilities that arise out of the administration and enforcement of this chapter are payable only from funds that are collected pursuant to the provisions of this chapter.
The secretary may require any employee or agent of the council to give a fidelity bond that is executed by a surety company that is authorized to do business in this state in favor of the secretary, in a sum, and containing terms and conditions, that the secretary may prescribe. The cost of a fidelity bond required pursuant to this section shall be paid from the funds that are collected pursuant to this chapter.
It is hereby declared, as a matter of legislative determination, that producers and handlers appointed to the council pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the council, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 5. Powers and Duties [64151. - 64158.]
The duties of the council are advisory, except for those duties that may be delegated to it by the secretary. The council may, subject to the approval of the secretary, exercise any of the following powers:
To recommend to the secretary administrative regulations that relate to the administration and enforcement of this chapter.
To investigate all matters that affect the administration of this chapter, and to report violations of it to the secretary.
To employ and, at its pleasure, discharge a manager and any clerical help and other employees that it deems necessary, and to prescribe their powers and duties and fix their compensation.
To contract with, or employ, and, at its pleasure, discharge any consultants and agencies that it deems necessary, and to outline their powers and duties and fix their compensation.
To establish offices and incur expenses incidental to those offices.
To recommend to the secretary the making of contracts and other agreements that may be necessary to conduct nutrition research, communication, and education activities of the council.
To cooperate with any other local, state, or national commission, organization, or agency, whether voluntary or created by state or national law, that is engaged in work or activities similar to the work and activities of the council, and recommend to the secretary the making of contracts and agreements with these organizations or agencies for carrying on joint campaigns of research, education, and advertising. In matters of research, the council shall, however, cooperate with organizations of recognized professional standing that are adequately equipped with facilities for the research that is contemplated.
To recommend to the secretary the institution and promotion of scientific research to develop or discover, or both to develop and discover, the health, food, therapeutic, dietetic, and industrial uses of milk and its products and derivatives.
To cooperate with other public and private agencies that are engaged in similar work or activities in order to avoid or minimize any overlapping or duplication of work or conflict.
To receive, invest, and disburse funds, pursuant to Article 11 (commencing with Section 64300).
Annually, before July 1 of each year, the council shall formulate and transmit to the secretary statements of its recommended activities and proposed budget for the coming fiscal year. The statements shall:
Be based on and made after an investigation by the council of the necessities of the dairy industry and the extent of the public interest, necessity, and convenience to be served by those recommended activities.
Describe the council’s recommended programs of research, education, and communication.
Set forth in a proposed budget the amounts that are deemed necessary to be allocated by the secretary both to effectuate these programs and to perform the secretary’s administrative duties pursuant to this chapter. The proposed budget shall include reasonable amounts for contingencies.
Be in a form, and contain detail, that the secretary, in the reasonable exercise of the secretary’s judgment, deems necessary to adequately show whether or not the activities are warranted by the facts contained in the statements and are authorized by this chapter.
If the activities and budgeted amounts that are recommended by the council and described in the statements provided for in Section 64153 are warranted by the facts contained in the statements and are authorized by this chapter, the secretary shall approve the activities for the council programs, in writing, within 20 days after each of the statements has been submitted to the secretary. The secretary shall also approve, in writing, the budget provided for in subdivision (c) of Section 64153 within 20 days after the budget has been submitted. If the secretary refuses or fails to give any approvals pursuant to this section within the required periods, the secretary shall notify the council promptly of the secretary’s refusal or failure to approve the activities or budget and give the secretary’s reasons, specifically, for the refusal or failure.
Expenditures for political contributions or for lobbying are not authorized.
The council shall keep accurate books, records, and accounts of all of its transactions, dealings, contracts, agreements, funds, and expenditure. These books, records, and accounts shall at all times be open to inspection and audit by the department.
The council shall request the secretary to submit to it an annual budget that sets forth in reasonable detail the proposed expenditures that the secretary deems necessary for the performance by the secretary and by the department of the duties that are imposed upon them by this chapter. The council shall also request the secretary to submit to it an annual statement, in reasonable detail, of the secretary’s expenditures pursuant to this chapter.
The council shall, annually, report to the members of the dairy industry on its activities and programs, including, but not limited to, its income and expenses, fund balance, and a report of progress in achieving program goals, as prescribed by the secretary.
ARTICLE 6. Research, Advertising, Publicity, and Education Campaigns [64181. - 64183.]
The council shall conduct one or more campaigns of research, communication, and education designed to accomplish the following purposes, among others:
To gather, publicize, and disseminate accurate and scientific information that shows the importance of the use and consumption of dairy products in relation to public health, balanced diet, and balanced nutrition of children and adults.
To provide education programs on the value and health benefits of milk and dairy products to empower stakeholders, including educators, health professionals, and communities, to elevate the health of children and families in accordance with consensus science.
In each fiscal year, of the money that is received under this chapter, an amount to be determined by the council shall be expended or allocated for research, with particular emphasis on the role of milk and dairy products in adult and child nutrition.
The council shall select the research projects to be conducted. Those projects shall be carried out, as practicable, by the University of California, pursuant to a contract entered into between the Regents of the University of California and the council. If, however, the council determines that the college has no facilities for a particular project or that another recognized research agency has better facilities for it, the project may be carried out by the other research agency, pursuant to a contract with the council.
An advertising or sales promotion program that is conducted or sponsored by the council shall not make any false or unwarranted claim, shall not disparage the quality, value, use, or sale of any commodity that is authorized by law to be marketed in this state, and shall not be conducted with reference to a brand or trade name.
ARTICLE 7. Records and Reports [64221. - 64223.]
Every handler shall keep complete and accurate records of all milk in unprocessed form that the handler purchases, or possession or control of which it acquires from any producer or other handler. Every handler that produces milk shall include its own production in these records. Every handler shall also keep complete and accurate records of all milk that it utilizes for processing.
Records kept pursuant to Section 64221 shall be all of the following:
In a form, and containing all information, relevant to the purposes of this chapter, that the secretary may, by order or regulation, prescribe.
Preserved for a period of two years.
Open to inspection at any time on the request of the secretary.
The secretary may, by order or regulation, require every handler subject to the recordkeeping requirements in Section 64221 to file with the secretary the information, or any part of the information, in the records, that the first handlers are required to keep pursuant to this article. The information shall be on forms that are prescribed and furnished by the secretary.
ARTICLE 10. Violations and Penalties [64291. - 64292.]
A person shall not use the same name, or a name so similar as to mislead the public into believing it is the same name, as the Dairy Council of California.
Any violation of any provision of this chapter is a misdemeanor.
ARTICLE 11. Financing Plan [64300. - 64312.]
This article provides for a comprehensive and continuing plan for financing the operations of the council.
Annually before the beginning of the fiscal year, the secretary shall, upon the recommendation of the council, establish and announce the assessments to be paid by producers and handlers for the coming fiscal year.
The rate structure of the assessments shall be as follows:
The following assessments for handlers of milk:
No more than 17.0 mills ($0.0170) per hundredweight for Class I milk.
No more than 8.5 mills ($0.0085) per hundredweight for all other usages of milk.
The relationship between the handler assessment rates per hundredweight established for Class I milk and for all other usages shall be at a ratio of 2 to 1.
For producers of milk if a stand-alone quota program established pursuant to Section 62757 is operative, the assessments shall be as follows:
No more than 2.0 mills ($0.0020) per pound for quota solids-not-fat, within the meaning given that term for purposes of the Quota Implementation Plan established pursuant to Section 62757.
No more than 1.0 mills ($0.0010) per pound for all other solids-not-fat.
The relationship between the producer assessment rates per pound quota solids-not-fat and per pound for all other solids-not-fat shall be at a ratio of 2 to 1.
For producers of milk if a stand-alone quota program established pursuant to Section 62757 is not operative, the assessments shall be as follows:
No more than 10.4 mills ($0.0104) per hundredweight of milk produced and delivered to a handler.
The producer assessment shall be without regard to the milk’s usage and shall be at a level between the two handler rates.
The handler and producer assessment rates established pursuant to this section shall be set at levels so that the total projected handler revenue for the year and the total projected producer revenue for the year to be generated from those assessments shall be as close to equal as reasonably possible.
Maximum allowable assessments greater than those provided in Section 64301 shall not be established unless approved by producers and handlers with at least 40 percent of all producers and handlers on record with the department submitting valid ballots during the referendum period, and either of the following:
A majority of producers and handlers voting in the referendum support the increase in the proposed higher maximum assessment allowed, and those producers and handlers voting in favor represent at least 65 percent of the total voted volume represented by each category.
At least 65 percent of producers and handlers voting in the referendum support the increase in the proposed higher maximum assessment allowed, and those producers and handlers voting in favor represent a majority of the total voted volume represented by each category.
The producer assessments shall be collected by the first handler that purchases, or otherwise acquires possession or control of, the milk by deducting the assessment from any payment that is due to the producer for the milk. Each handler shall pay the assessment on the handler’s own production. For the purposes of this article, a handler that sells unprocessed milk, of which the handler has the right to possession or control by contract or otherwise, to another handler, and delivers this milk in unprocessed form to the other handler or causes this milk to be delivered to the other handler directly from the producer, is the first handler of this milk.
When the stand-alone quota program, provided pursuant to Section 62757, is in effect, the assessment of each producer for all milk shall be determined on the total solids-not-fat of milk produced and delivered.
When the stand-alone quota program, provided pursuant to Section 62757, is not in effect, the assessment of each producer for all milk shall be determined on the total hundredweight of milk produced and delivered.
The collection of assessments to be paid by handlers pursuant to Section 64303 shall be used for the handler portion of council assessments only, and shall not affect payments of producers, nor in any way change the method of producer payment for milk.
Each handler shall pay to the secretary the assessments established for all milk used in the plant of the handler in the processing and manufacture of milk and milk products.
The assessments established and assessed as prescribed in this chapter shall be billed monthly to the handler and shall be paid to the secretary no later than the 15th day of the second month following the month during which the milk was received.
Assessments established and assessed under this chapter may be enforced and collected by the secretary through direct payment or through accounting procedures established by the secretary under Chapter 3.5 (commencing with Section 62750).
To the amount of assessments that are unpaid when due, the secretary may add a penalty of 10 percent. In addition, the secretary may assess interest at a rate of 1 percent of the unpaid balance for each 30 days the assessment is unpaid.
The secretary, by action prosecuted by the secretary, may recover any unpaid assessments. In any action, a certificate of the secretary that shows the amount, including the penalty, determined by the secretary to be required to be paid by the person required to pay this amount is prima facie evidence of the delinquency. The presumption established by this section is a presumption affecting the burden of proof.
If any handler does not provide the information necessary to determine the amount of assessments due, when required, the secretary shall estimate the amount due from the records of the department or from any other source of information that is available. In any action by the secretary to recover assessments pursuant to this chapter, a certificate of the secretary that shows the amount determined by the secretary to be required to be paid by the person that is required to pay the assessments is prima facie evidence of the delinquency of the amount that is shown. The presumption established by this section is a presumption affecting the burden of proof.
Assessments paid on milk pursuant to this chapter shall be refunded to a producer that meets the following criteria:
The producer was not paid, or received only partial payment, for the milk shipped.
The producer has agreed to repay the refunded assessments to the affected programs if, on a subsequent date, the producer is paid for the milk.
The producer shall receive a full refund of the assessments paid on milk shipped for which no payment was received. If partial payment was received, the producer shall receive a refund of the assessments paid on milk for which payment was not received.
If a producer subsequently receives full or partial payment for milk for which assessments have been refunded, the producer shall repay the assessments in an amount proportionate to the portion of milk for which payment has been received.
Refunds shall not be made pursuant to this section if the refund would cause a producer to incur an additional assessment obligation to the National Dairy Promotion and Research Program.
The secretary shall adopt procedures for refunding assessments in accordance with this section. Those procedures shall not be subject to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
Any money that is collected by the secretary pursuant to this chapter shall be deposited in a bank or other depository that is approved by the Director of Finance. Those funds shall be deposited and disbursed in conformity with appropriate regulations prescribed by the secretary and may be allocated to pay for expenses generated by the auditing requirement imposed by subdivision (b). The expenditure of those funds shall be exempt from the provisions of Section 925.6 of the Government Code.
All expenditures by the council shall be audited at least annually by one of the following means:
By contract with a certified public accountant.
By contract with a public accountant holding a valid permit issued by the California Board of Accountancy.
By contract with a public accounting firm.
By agreement with the Department of Finance.
A copy of the audit shall be delivered within 30 days after its completion to the Governor, the secretary, and the Controller.
Notwithstanding Section 13340 of the Government Code, money that is collected by the secretary pursuant to this chapter is continuously appropriated to the department to carry out the duties that are imposed upon the secretary and the council pursuant to this chapter. The appropriation that is made in this section is exempt from the operation of Section 16304 of the Government Code.
The money that is collected by the secretary pursuant to this chapter shall be disbursed by the council only for the necessary expenses incurred by the council and the secretary to carry out the purposes of this chapter, including the payment of refunds that are authorized pursuant to this chapter. The council may disburse these funds in authorized activities related to particular dairy products without reference to the branches of the dairy industry from which these funds are derived.
Any money that is deposited pursuant to Section 64309 that the secretary determines is available for investment may be invested or reinvested by the Treasurer or the council in any of the securities described in Article 1 (commencing with Section 16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code, or placed in a depository as provided in Chapter 4 (commencing with Section 16500) of Part 2 of Division 4 of Title 2 of the Government Code, and handled in the same manner as money in the State Treasury. For these purposes, these moneys may also be combined with funds determined by the secretary to be available for investment pursuant to Section 58939 of Chapter 1 of Part 2 of Division 21 of the Food and Agricultural Code.
Any increment that is received from investment, reinvestment, or deposit of money pursuant to Section 64311 shall be deposited to the credit of the council. The Treasurer may deduct from this remittance an amount equal to the reasonable costs incurred in carrying out the provisions of this article or may bill the secretary for the costs and the secretary shall pay the costs from moneys collected pursuant to this chapter.
ARTICLE 12. Referendum [64320. - 64323.]
Between July 1 and December 31 of each year ending in the number three or eight, the secretary shall, by the public hearing procedure, and if appropriate, the referendum procedure, provided for in this article, determine whether the council program provided for in this chapter shall continue in effect.
If the secretary finds from evidence received at the hearing that a substantial question exists as to whether the council program is contrary to or does not effectuate the declared purposes or provisions of this chapter, the council program shall be submitted to referendum as provided in subdivision (c).
If the secretary determines that a referendum procedure is appropriate, the secretary shall establish a referendum period of not to exceed 30 days during which period ballots shall be submitted to all producers and handlers on a statewide basis. If the secretary determines that the referendum period does not provide sufficient time for the balloting, the secretary may extend the referendum for an additional period not to exceed 30 days. The ballots shall provide a “yes” or “no” voting alternative to the question:
“Shall the Dairy Council of California be continued for the next five fiscal years beginning July 1 following this referendum?”
If the council program is submitted to a referendum, the secretary shall find that producers and handlers statewide have assented to the council program if the secretary finds both of the following:
Sixty-five percent or more of the total number of handlers voting approve the council program.
No less than 51 percent of the total number of eligible producers in the state voted in the referendum.
Sixty-five percent or more of the total number of eligible producers who voted in the referendum and who produced 51 percent or more of the total amount of fluid milk produced during the second calendar month preceding the month of the beginning of the referendum period by all producers who voted in the referendum approve the council program, or 51 percent or more of the total number of eligible producers who voted in the referendum and who produced 65 percent or more of the total amount of fluid milk produced during the second calendar month preceding the month of the beginning of the referendum period by all producers who voted in the referendum, approve the council program.
If the secretary finds that producers and handlers have not assented to the council program pursuant to Section 64321, the council program may be resubmitted to a referendum as prescribed in this article within a period of no less than 60 days and no more than 180 days after the secretary announces the plan was not approved.
If the secretary finds that producers and handlers have not assented to the council program pursuant to Section 64321 or, if the council program is resubmitted, Section 64321.5, operation of the provisions of this chapter and of the council shall be suspended beginning on July 1 following the referendum or, in the case of resubmission, referendums.
After the effective date of suspension of the operation of the provisions of this chapter and of the council, the operations of the council shall be wound up, and any real and personal property held in the name of the council shall be liquidated and the proceeds, along with any and all remaining money held by the council, collected by assessment and not required to defray the expenses of winding up and terminating operations of the council, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding three months. However, if the secretary finds that the amounts returnable pursuant to this subdivision are so small as to make impractical the computation and remitting of the pro rata refund to these persons, any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into the State Treasury as unclaimed trust moneys.
A ballot filed with the secretary pursuant to this chapter is confidential and shall not be divulged unless necessary for the proper determination of a court proceeding or hearing before the secretary.
ARTICLE 9. Additional Financial Provisions [ - ]
CHAPTER 2. California Beef Council Law [64501. - 64736.]
ARTICLE 1. Short Title and Definitions [64501. - 64507.]
This chapter shall be known as the “California Beef Council Law.”
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Beef” includes veal.
“Beef products” includes veal products.
“Council” means the California Beef Council.
“Person” means an individual, corporation, partnership, limited liability company, trust, association, cooperative association, and any other business unit or organization.
“Producer” means any person that is engaged in the business of raising, breeding, feeding, or growing cattle or calves for dairy production or for beef production.
ARTICLE 2. General Provisions [64531. - 64534.]
It is hereby declared, as a matter of legislative determination, that the provisions of this chapter are enacted in the exercise of the power of this state for the purposes of protecting and furthering the public health and welfare. It is further declared that the cattle industry of this state is affected with a public interest, in that, among other things:
The production, processing, manufacture, and distribution of beef and beef products constitute a paramount industry of this state which not only provides substantial and required revenues for the state and its political subdivisions, and employment and a means of livelihood for many thousands of its population, but also furnishes essential foods that are vital to the public health and welfare.
The stabilization, maintenance, and expansion of the cattle industry of California, and of the state, nationwide, and foreign markets for its products are necessary to assure the consuming public an adequate supply of foods which are indispensable in a proper human diet, to protect, for the state and its political subdivisions, a necessary source of tax revenue, to provide and maintain an adequate standard of living for a great segment of the population of this state, to maintain proper wage scales for those engaged in the cattle industry, and to maintain existing employment.
The essentiality of beef and beef products in a proper human nutrition and to the maintenance of a high level of public health is such as to require that the public be made thoroughly aware thereof, and be protected against misrepresentation and deception, by the dissemination of accurate and scientific information relative to the healthful qualities of beef and beef products, their various classifications and the food values and industrial and medicinal uses thereof, the methods, care and precautions necessary to their proper production, processing, manufacture, and distribution, and the necessary costs and expenses thereof, and the necessity and desirability on the part of the public of using and consuming beef and beef products of the highest standards of quality.
The purposes of this chapter are as follows:
To enable the cattle industry, with the aid of the state, to develop, maintain, and expand the state, nationwide, and foreign markets for beef and beef products produced, processed, manufactured, sold, or distributed in this state, for human consumption, and the use and consumption of these beef and beef products in those markets.
In aid, but not in limitation, of the purpose in subdivision (a), to authorize and enable the director to formulate and effectuate, directly or in cooperation with other agencies and instrumentalities which are specified in this chapter, research relating to the nutritional qualities of beef and beef products and public consumption patterns and trends, and sales stimulation and consumer, or other, educational programs designed to increase the use and consumption of beef and beef products for human consumption.
To provide funds for the administration and enforcement of this chapter by mandatory fees to be collected in the manner which is prescribed in this chapter, unless producers elect to provide those funds through voluntary contributions pursuant to Article 7 (commencing with Section 64671).
This chapter shall be liberally construed. If any section, sentence, clause, or part of this chapter is, for any reason, held to be unconstitutional or invalid, such decision does not affect the remaining portion of this chapter but such unconstitutional or invalid provision is separable from the valid parts of this chapter.
Any violation of this chapter is a misdemeanor.
ARTICLE 3. Administration [64561. - 64564.]
The director shall administer and enforce the provisions of this chapter, and may exercise any of the administrative powers which are conferred by Sections 11180 to 11191, inclusive, of the Government Code upon a head of a department. In order to effectuate the declared purposes of this chapter, the director may contract to carry out the declared intent and purposes of this chapter.
Upon recommendations by the council the director may establish consistent with this chapter such regulations which cover the administration and enforcement of this chapter as may be necessary to carry out the purposes and attain the objectives of this chapter.
Upon the issuance of any regulations that affect this chapter, a copy of the regulations shall be posted on the department’s Internet Web site. A copy of the regulations shall also be published in a newspaper of general circulation published in Sacramento, California, and in any other newspaper that the secretary may prescribe. No regulation shall become effective until five days after the date of the posting and publication. The secretary shall mail a copy of the notice of the issuance of the regulations to every person that is directly affected by the regulations whose name and address may be on file in the office of the secretary and to every person who files in the office of the secretary a written request for the notice.
The director may purchase general liability insurance for the council subject to the provisions of this chapter in an amount he or she determines as necessary. The cost of the insurance shall be paid by the council. The insurance policy shall name the director, in his or her official capacity, and the council as insured parties for claims made against the council in its advisory capacity to the director or against the director regarding the activities of the council. The director, after consultation with the Attorney General, may refer claims to the insurance carrier for appropriate action. In the alternative, the director may require that claims be handled in the manner otherwise specified in this chapter.
ARTICLE 4. California Beef Council [64591. - 64605.]
There is in the state government the California Beef Council which consists of 20 members and 20 alternates, all of whom shall be citizens and residents of this state and producers, packers, or processors.
The secretary shall appoint to the council six range cattlemen, six cattle feeders, and six dairymen nominated as producers and two packers or processors as hereinafter provided for, giving due regard to proper geographic distribution. This requirement shall not, however, operate to remove from office any member of the council. Subject to the provisions of this section and of Section 64592, present members of the council shall be eligible for reappointment.
Notwithstanding other provisions of this article, the director shall, with or without nominations, appoint one member and one alternate member to the council to represent the general public, in addition to the 20 members of the council otherwise provided for. Such persons shall not be affiliated in any way with the production or marketing of beef and shall have all of the rights and privileges, including voting, of any other member or alternate member of the council. The regular term of office of any member or respective alternate member appointed pursuant to this section shall be as close as possible to three full years and shall terminate on December 31 of the year which will provide for more than two but not more than three full years in office.
The terms of office of the members and alternates of the council shall be three years, except as provided in this section. The first appointments made under this chapter shall be so made that the terms of six members and their alternates shall expire at the end of one year, six members and their alternates shall expire at the end of two years, and seven members and their alternates shall expire at the end of three years. However, the terms of the first members and alternates appointed from slaughterers pursuant to amendments made to this section during the 1973 portion of the 1973–74 Regular Session of the Legislature shall be for three years.
Any vacancy which occurs during the unexpired term shall be filled by the director for the unexpired term from the eligible nominees. No council member or alternate shall serve more than two consecutive three-year terms. Service as an alternate does not disqualify a person to then serve two such terms as a member, and a member who was appointed for a one- or two-year term may serve two additional three-year terms.
The director may remove any member of the council or alternate for cause and upon such removal there is a vacancy which shall be filled in the manner as provided for the unexpired term.
With or without recommendations or other nominations from the council or otherwise, during September and October of each year, the secretary may, if deemed appropriate or necessary by him or her, provide notice of, and hold, producer nomination meeting or meetings or may prepare and mail nomination forms to producers, for the purpose of receiving nominations for producer membership on the council. When nomination forms are mailed, the secretary shall utilize existing department lists of producers, packers, or processors. The secretary may also provide notice of, and hold, packer or processor nomination meeting or meetings or otherwise receive nominations for packers or processors, as deemed appropriate by him or her, including, but not necessarily limited to, nominations received by mailing similar nomination forms to the packers or processors on existing department lists. Notwithstanding other provisions of this section, the secretary may, whenever and in any manner deemed necessary and appropriate by him or her, obtain nominations of producers, packers, or processors for membership on the council.
Press releases or other notice of nomination procedures, when conducted by mail, shall indicate that nominations shall be mailed to the director at his office in Sacramento and that the director will consider all nominations received by mail, within the time designated by him. Nominations by mail shall set forth (1) the name and address of each nominee, (2) whether each nominee is being nominated as a member or alternate member, (3) the type of producer (dairy, feeder, or range cattle) of each nominee, or, if a nominee is a slaughterer, that fact, and (4) the signature and address of the nominator.
A majority of the members of the council shall constitute a quorum for the transaction of all business, including the election of officers.
The council shall select annually from its number, to serve at its pleasure, a chairman and vice chairman who, together with five other members selected annually by the council, shall constitute the executive committee of the council. The executive committee shall have and exercise such powers of the council as the council may delegate to it.
The council shall have two regular meetings in each year at times and places which are fixed by the council. The times for regular meetings shall be fixed so that there is an interval of at least four calendar months between such meetings. The council may meet in special meetings at any time and place at the call of the chairman or upon the written request of five members of the council. The executive committee shall have two regular meetings each year at times and places which are fixed by it, and may meet in special meetings at any time and place at the call of the chairman or on call of a majority of the members of the executive committee.
The members of the council shall be reimbursed for necessary traveling and other expenses incurred in the performance of their official duties.
No member of the council shall receive compensation.
The director may require any employee or agent of the council to give a fidelity bond, executed by a surety company which is authorized to do business in this state, in favor of the director, in such sum, and containing such terms and conditions, as the director may prescribe. The cost of all such fidelity bonds of employees or agents of the council shall be paid from the funds which are collected pursuant to this chapter.
No member or employee of the council shall be held responsible individually to any person for liability on any contract or agreement of the council. All salaries, expenses, costs, obligations, and liabilities which arise out of the administration and enforcement of this chapter are payable only from funds which are collected pursuant to the provisions of this chapter.
An alternate member of the council shall sit as a regular member of the council if the member for whom he is an alternate fails for any reason to attend any meeting of the council. He shall be compensated and reimbursed in the same manner and to the same extent as a regular member when so serving and when so serving has all the powers, duties, liabilities, and immunities of the member in whose place he is serving, except that the alternate to the chairman or vice chairman shall not succeed to the functions of these offices.
It is hereby declared, as a matter of legislative determination, that producers, packers, or processors appointed to the council pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such council, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 5. Powers and Duties [64631. - 64635.]
The duties of the council shall be advisory, except as to those duties which may be delegated to it by the director. The council may, subject to the approval of the director, exercise any of the following powers which may be delegated to the council by the director:
To recommend to the director administrative regulations which relate to the administration and enforcement of this chapter.
To investigate all matters which affect the administration of this chapter, and to report violations of it to the director.
To employ and, at its pleasure, discharge a manager and such clerical help and other employees as it deems necessary, and to prescribe their duties and powers and fix their compensation.
To contract with, or employ, and, at its pleasure, discharge such other persons as it deems necessary, and in the cases of such of them as it shall employ, to outline their powers and duties and fix their compensation.
To establish offices, and incur expenses incidental thereto.
To make such contracts and other agreements as may be proper to promote the sale of beef and beef products on either a local, state, national, or international basis.
To cooperate with any other local, state, or national commission, organization, or agency, whether voluntary or created by state or federal law, and engaged in work or activities similar to the work and activities of the council, and recommend to the director the making of contracts and agreements with such organizations or agencies for carrying on joint programs of education, research, publicity, and advertising. In matters of research, however, the council shall cooperate with organizations of recognized professional standing which are adequately equipped with facilities for the research which is contemplated.
To recommend to the director the institution and promotion of scientific research to develop or discover, or both, the health, food, therapeutic, dietetic, industrial, or other uses of beef and its products.
To receive, invest, and disburse funds, pursuant to the provisions of Article 8 (commencing with Section 64691).
Funds may be allocated to agencies not specifically or solely engaged in carrying on research or promotion for beef, if the council and the director are satisfied that such allocations will be beneficial to the California beef industry, and will tend to effectuate the declared purposes of this chapter.
The council shall keep such books, records, and accounts of all its transactions, dealings, contracts, agreements, funds, and expenditures as it deems necessary. Such books, records, and accounts shall at all times be open to inspection and audit by the director.
A member, alternate agent, or employee of the council shall not do any of the following:
Appear before any legislative committee of the state or federal government as a representative of the council unless requested to do so by such committee.
Lobby in any manner as a representative of the council.
None of the funds which are collected pursuant to this chapter shall be used for political contributions.
The council shall prepare annually, summarized statements of the activities in which it has been engaged in the previous annual period, and of the activities in which it proposes to engage in the ensuing annual period. Such statements shall be made available to all producers and slaughterers that request them.
ARTICLE 6. Education, Research, or Public Information Programs [64661. - 64663.]
The director shall conduct, or may cause the council to conduct, programs of education, research, or public information, which are designed to accomplish the following purposes, among others:
Increase the consumption of beef and beef products.
Gather, publicize, and disseminate accurate and scientific information which shows the importance of the use and consumption of beef and beef products in relation to the public health, economy, and diet, and proper nutrition of children and adults.
Study means and methods which are employed in producing, processing, manufacturing, marketing, and distributing beef and beef products in order to comply with the sanitary and other regulations which are imposed by municipalities, this state, and the United States.
Gather and disseminate information regarding the high standards which are observed and imposed to ensure pure and wholesome beef and beef products.
Gather and disseminate information regarding the harmful effects on the public health resulting from the breakdown or instability of the cattle industry, the factors and conditions peculiar to the cattle industry which tend to cause an unbalanced production, the price of beef and beef products in relation to the cost of other items of food in a balanced diet.
Gather and disseminate information regarding the nutritional qualities of beef and beef products and public consumption patterns and trends, and the factors which tend to promote increased consumption of beef and beef products, stabilize the industry, and foster a better understanding and more efficient cooperation among producers and slaughterers and the consuming public.
No program or activity which is conducted or sponsored pursuant to this chapter shall make false or unwarranted claims, or disparage the quality, value, use, or sale of any commodity authorized by law to be marketed in this state, nor shall any such program be conducted with reference to a private brand or trade name which refers to beef or a beef product, except as provided for in Section 64663.
The council shall not expend beef council funds for the advertising of brand name beef products, unless the expenditures are approved by a two-thirds vote of the council with the concurrence of the secretary. The council may expend beef council funds to conduct cost-sharing advertising with nonbeef brand name products.
ARTICLE 7. Referendum for Voluntary Fee Payment [64671. - 64676.]
Whenever a petition is presented to the director which has been signed by 2,000, or more, of the total producers in the state, not more than six months prior to its presentation to the director, the director shall conduct a referendum among producers to ascertain whether they favor the carrying on of a voluntary promotion and research program for beef as prescribed in Section 64661. At the time any person starts to circulate such a petition, he shall notify the director of such action. The director shall establish the period of time during which such referendum shall be conducted which shall be not less than 30 days nor more than 90 days.
The director shall count and tabulate the ballots received, and announce the results at the close of the referendum period. If the director finds from the ballots cast that 40 percent or more of all producers, as determined from a list to be established by the director, have voted and that not less than 65 percent of the total producers that produced not less than 51 percent of the volume of the commodity in the state or not less than 51 percent of the total producers that produced not less than 65 percent of the volume of the commodity in the state voting in such referendum favor carrying on a voluntary promotion and research program, the director shall declare the program a voluntary promotion and research program.
If the promotion and research program is declared to be voluntary, Section 64695 shall become operative and funds for the administration and enforcement of this chapter shall be provided by voluntary contributions rather than mandatory fees.
If the director finds that the referendum did not receive the required votes in favor of a voluntary promotion and research program pursuant to Section 64672, he shall declare this result and shall instruct the council to carry on the current program.
If the voluntary promotion and research program does not receive the required favorable vote or if less than the required number of producers have voted, another referendum shall not be petitioned for until after the expiration of a period of two years from the date of the referendum which failed.
No referendum shall be conducted pursuant to this article until after the expiration of a period of two years from the effective date of this article.
ARTICLE 8. Financial Provisions [64691. - 64702.]
In order to carry out the programs and administer the activities which are conducted pursuant to this chapter, except as specified in Sections 64691.5 and 64702, a fee of one dollar ($1) per head shall be paid on each sale of cattle and calves as specified in Section 64691.7. The fee shall be charged on all cattle and calves, except the following:
Hides, skins, or reduction animals.
Any cattle that are transported for purposes other than for sale or slaughter and without a change of ownership.
Any cattle custom slaughtered exclusively for the owner, members of the owner’s household, or the owner’s nonpaying guests or employees.
Any calves weighing less than 300 pounds.
The fee shall not be charged or collected more than once from each owner upon the same animal and is nonrefundable.
Each person who is required to pay or collect the fees which are required in Section 64691 shall maintain a complete and accurate record of all transactions subject to fees under this chapter. These records shall contain information required by the director relating to the payment or collection of fees, shall be preserved for a period of two years, and shall be offered and submitted for inspection and audit at any reasonable time upon written demand by the director or his or her duly authorized agent.
All information obtained by the director or his or her duly authorized agent from any inspection or audit of records shall be confidential and shall not be disclosed except when required in a judicial proceeding.
A fee greater than one dollar ($1) per head on cattle and calves prescribed by Section 64691 shall not be charged pursuant to that section under a mandatory fee payment program, unless and until the greater fee is approved by the producers in this state, by a referendum to be submitted to the producers by the secretary. The secretary shall find that the producers have approved any greater fee, if he or she finds that 60 percent of the producers voting in the referendum voted in favor of charging the greater fee. Ballots shall be provided to producers from a list provided by the council and approved by the secretary, and to other producers who request a ballot that provide proof of eligibility.
The fees required pursuant to Section 64691 shall be due and payable as follows:
The fee for cattle or calves, whether originating in the state or out of state, shall be paid by the seller. The fee shall be charged and collected from the seller or from the seller’s account and paid to the secretary by each operator of any stockyard, livestock auction market, slaughterhouse, or registered feedlot in the state. The fee is due and payable to the secretary on or before the 15th day of the month next succeeding the month in which the cattle and calves are sold. Fees that are not collected in the manner provided in this subdivision shall be collected from the seller by the Bureau of Livestock Identification at the time that brand inspection fees are collected.
The fee for cattle or calves for which the fee would not otherwise be collected pursuant to subdivision (a) and that are also exempt from brand inspection, shall be charged and collected from the seller in a manner determined by the department.
Any fees that are not collected in the manner specified in subdivision (a) or (b) shall be paid to the secretary directly by the seller on or before the 15th day of the month next succeeding the month in which the sale occurs.
Any person who fails to pay, collect, or remit any fees due within the time specified in this chapter shall be liable for administrative costs incurred by the department in enforcing this chapter, including the costs of any audit performed pursuant to Section 64691.1. In addition, the person shall be liable civilly in an amount not to exceed one hundred dollars ($100) for each head of cattle or calves which is sold. The person shall also be liable for all of the following:
The total amount of fees due.
The cost of the civil suit including attorney’s fees.
Two percent interest per month on the unpaid balance of the fees owed.
At the request of the director, the Attorney General shall file an action in an appropriate court to collect any unpaid fees, civil penalties, and interest, or in the alternative, the department may bring the action when appropriate.
At the request of the director, the Attorney General shall petition an appropriate court for the issuance of an injunction, restraining any person in violation of any requirement specified in this chapter or regulations adopted pursuant thereto from continuing the violation. The court may also require the performance of any obligation imposed under this chapter or any regulations adopted pursuant thereto.
The fees which are collected by the Bureau of Livestock Identification pursuant to this article shall be forwarded to the director at the same time and in the same manner as the inspection fees which are provided for in Article 9 (commencing with Section 21281) of Chapter 6 of Division 10. The director shall reimburse, from any money which is collected pursuant to this section, the Bureau of Livestock Identification and any other bureaus or agencies of the state for any additional expenses which are incurred by them in the administration or enforcement of this chapter.
Any person who is subject to the fee which is required by Section 64691 may obtain a refund of the fee collected from him by submitting to the director a claim for such refund. Such claim shall be submitted in writing within 90 days after the date of the brand inspection or the date of payment of the fee to the director whichever date is later. The claim for refund shall contain such necessary information as the director may require.
This section shall not become operative unless and until the promotion and research program is declared by the director to be voluntary pursuant to the provisions of Article 7 (commencing with Section 64671).
All money that is collected by the director pursuant to this chapter shall be deposited in any bank, or other depository that is approved by the Director of Finance, allocated to the purposes of this chapter only, and disbursed by the director or the council only for the necessary expenses that are incurred by the council and the director in carrying out the purposes and provisions of this chapter, including expenses generated by the auditing requirement contained in this section. Money that is so collected shall be deposited and disbursed in conformity with appropriate auditing regulations that are prescribed by the director. The expenditure of the money is exempt from the provisions of Sections 925.6 and 16304 of the Government Code.
All expenditures by the council and the director shall be audited at least once every two years by one of the following means:
By contract with a certified public accountant.
By contract with a public accountant holding a valid permit issued by the California Board of Accountancy.
By contract with a public accounting firm.
By agreement with the Department of Finance.
A copy of the audit shall be delivered within 30 days after completion of the audit to the Governor, the director, and the Controller.
Money which is deposited pursuant to Section 64696 may be invested and reinvested by the Treasurer or the council in any of the securities described in Article 1 (commencing with Section 16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code, or placed in a depository as provided in Chapter 4 (commencing with Section 16500) of Part 2 of Division 4 of Title 2 of the Government Code, and handled in the same manner as money in the State Treasury. For these purposes, the money may also be combined with funds which are determined by the director to be available for investment pursuant to Section 58939. Any increment which is received from investment, reinvestment, or deposit made by the Treasurer shall be remitted to the council. The Treasurer may deduct from the remittance an amount equal to the reasonable cost incurred in carrying out this section or may bill the council for the costs, and the council shall pay the costs from money which is collected for it pursuant to this chapter.
The director, after consultation with the council, shall prepare an annual budget which sets forth in reasonable detail the proposed expenditures which he deems necessary for the performance by him and by the department of the duties which are imposed upon them by this chapter. He shall also prepare and submit to the council an annual statement, in reasonable detail, of his expenditures pursuant to this chapter.
The director may receive funds in such amounts as he may deem necessary to defray the initial expenses in making effective this chapter. The director shall reimburse those persons from whom said funds are received in the amounts received from any funds which are received by the director pursuant to Section 64691.
The director may accept contributions to advance the purposes of this chapter. If requested by the donor, such contributions shall be segregated and separately maintained for the use of the council.
Any inspector who is described in Section 20010 may accept voluntary contributions on behalf of the director. Such contributions may be supplementary to collections which are provided in Article 8 (commencing with Section 64691) of this chapter. Such contributions may be in lieu of the fees specified in Article 8 (commencing with Section 64691) if the promotion and research program is declared by the director to be voluntary pursuant to Article 7 (commencing with Section 64671).
The following shall apply to this chapter so long as the federal Beef Promotion and Research Act of 1985 (7 U.S.C. Sec. 2901 et seq.) and any resulting regulations are in effect. If the federal act is terminated by subsequent statute or in the manner specified in the act, this fact shall be certified by the secretary and this section shall be void and have no force and effect.
A fee shall not be collected pursuant to this chapter on the sale of cattle or calves that originated from out of state and for which a federal assessment was paid in the originating state in accordance with the requirements of the federal act. When no federal assessment on the sale was paid in the originating state, the secretary shall ensure that any federal assessment due is paid. This subdivision shall not prevent the collection of fees by the secretary on subsequent sales of the cattle or calves.
No fee shall be collected on the sale of cattle or calves if the sale is exempt from the federal act and regulations adopted pursuant thereto.
No person shall be liable for more than a total of one dollar ($1) per head per sale of cattle or calves under this chapter and the federal act.
This subdivision does not apply to any fee increases approved by the secretary pursuant to Section 64691.5.
ARTICLE 9. Termination [64731. - 64736.]
The provisions of this chapter shall continue to be operative permanently except as provided in this article.
A referendum among the state’s producers shall be conducted by the director in any of the following cases:
Whenever the director, on his own motion or at the request of the council, determines that it is no longer in the best interest of the state to continue the existence of the council and the programs established and maintained pursuant to this chapter.
Upon the receipt by the director of a petition for such a referendum signed by 3,000 of the state’s producers that signed the petition not more than six months prior to its presentation to the director.
In either such event, the director shall thereupon prepare and mail to each producer as shown in the records of the department, a ballot form and self-addressed envelope.
The ballot form shall be substantially as follows: BALLOTCalifornia Beef Council LawTermination of Council and Program
Shall the existence of the California Beef Council and the programs established and maintained under the California Beef Council Law (Chapter 2 (commencing with Section 64501) of Division 22 of the Agricultural Code) be discontinued and terminated?
If upon the count of the ballots the director finds that 30 percent, or more, of all producers established by the director’s list have voted and that 51 percent, or more, of the total number of producers voting have assented to the discontinuance and termination of the council and the programs which are established and maintained pursuant to this chapter, the director shall make a finding to that effect and declare the existence of the council and the programs which are established and maintained pursuant to this chapter discontinued and terminated at the end of the fiscal year in which the referendum is conducted.
If upon a count of the ballots the director finds that less than 51 percent of the total number of producers voting have assented to such discontinuance and termination, he shall make a finding to that effect and the council and programs which are established and maintained pursuant to this chapter shall continue to remain in full force and effect.
On the expiration of this chapter pursuant to this article, the council shall remain in existence for the purpose of furnishing the director with a complete record of its outstanding financial obligations, accrued and to accrue. The director shall pay from the money deposited and disbursed as provided in Section 64696 such obligations and any obligations incurred by the director and the department under the terms and provisions of this section. Any money which remains shall be retained by the director to defray the expenses of formulation, issuance, administration or enforcement of any subsequent program for beef promotion. If no such program is undertaken within a period of three years from the date of termination of this chapter, such money shall be withdrawn from the approved depository and paid into the State Treasury, allocated to the Department of Agriculture Fund for use by the director in carrying out the hide and brand provisions of this code, when appropriated by the Legislature.
CHAPTER 2.5. California Cattle Council Law [65001. - 65087.]
ARTICLE 1. General [65001. - 65004.]
The Legislature finds and declares all of the following:
The production of cattle for both beef and dairy constitutes a paramount industry of this state that not only provides substantial revenues for the state but also provides willing consumers with local and nutritious food.
The raising of beef and dairy cattle provides a viable living for many Californians and serves as the economic foundation for many rural communities. Cattle producers strive to be stewards of the resources they manage and the existence of ranching in California serves the public by providing numerous environmental and aesthetic benefits that would otherwise be lost without the use of California’s various range and pasture lands as working landscapes.
Cattle production in California reflects a diverse set of family farmers and ranchers, including women- and minority-owned businesses, that provide a varied line of beef and dairy products through conventional, organic, grass-fed, kosher, halal, and other production methods that fill niche markets desired by willing consumers. Cattle producers vary in size from small to large based on the total number of animals raised and contribute equally to providing wholesome beef and dairy products to willing consumers.
The stabilization, maintenance, and expansion of the cattle industry of California and the expansion of local, state, nationwide, and foreign markets for California beef and other products derived from the California cattle industry are necessary in order to provide willing consumers an adequate supply of high-quality California beef and dairy products.
The council’s form of administration created by this chapter is uniquely situated to provide those engaged principally in the production of cattle, along with beef and other products derived from the California cattle industry, the opportunity to avail themselves of the benefits of collective action in advertising, promotion, food safety, production research, nutrition, marketing research, the collection and dissemination of production and related statistics, and public education.
The purposes of this chapter are as follows:
Most notably, to authorize and enable the secretary and the appointed governing body of the council to formulate and effectuate, directly or in cooperation with other agencies and parties, research relating to all types of California cattle production, including nonconventional and organic methods of production. Research may be focused on, but not limited to, improving the efficiency and sustainability of the California cattle industry, the development of management practices and assistance with compliance for rules and regulations that govern the production of cattle in California, the nutritional qualities of California beef and other products derived from the California cattle industry, public consumption patterns and trends, sales stimulation, and the development of consumer or other educational programs designed to increase the use and consumption of California beef and other products derived from the California cattle industry by willing consumers.
To enable the California cattle industry to develop, maintain, and expand the local, state, nationwide, and foreign markets for all types, conventional and nonconventional, of California beef and other products derived from the California cattle industry.
To enhance the California cattle and dairy industries, create a favorable environment for California cattle producers to operate, and improve the competitiveness of California cattle producers in both the national and international marketplace.
To enable the council to present facts to local, state, federal, and foreign agencies on matters that affect the California cattle industry and the production of California beef and dairy cattle, beef, and other products derived from the California cattle industry.
To provide funds for the administration and enforcement of this chapter by mandatory fees to be collected in the manner that is prescribed in this chapter, unless producers elect to receive a refund of those funds pursuant to Section 65075.
This chapter shall be liberally construed. If any provision of this chapter or the application of this chapter to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that council members and alternates are intended to represent and further the interest of the particular industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the council, the particular industry concerned is tantamount to and constitutes the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 2. Definitions [65011. - 65012.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Beef” means the meat of cattle and includes veal.
“Cattle” and “beef cattle” are synonymous and mean bovine animals of any breed, regardless of age.
“Cattle feeder” means a producer raising cattle in confined spaces for the purposes of finishing cattle for market.
“Council” means the California Cattle Council.
“Department” means the Department of Food and Agriculture.
“Ex officio member” means a nonvoting member of the council.
“Handler” means a person engaged in the marketing of beef that the handler has produced, purchased, or acquired from a producer, or is marketed on behalf of a producer, whether as the owner, agent, employee, broker, or otherwise.
“Member” means any member of the council.
“Other products derived from the California cattle industry” include, but are not limited to, those edible, industrial, and medicinal products produced in whole or in part from beef, dairy, or cattle.
“Processor” means a person who harvests cattle or markets products derived from cattle to willing consumers, including beef, dairy products, or other products derived from the California cattle industry.
“Producer” is a person who owns or acquires ownership of beef or dairy cattle, and who, upon request, provides proof of ownership of cattle or, for purposes of voting pursuant to this chapter, has owned beef or dairy cattle within the same calendar year as the vote occurs. A person is not a producer if the person’s only share in the proceeds of the sale of cattle or beef is a sales commission, handling fee, or other service fee.
“Range cattle producer” means a person who owns and raises cattle primarily on range or pastureland for the purpose of producing beef and other products derived from the California cattle industry.
“Secretary” means the Secretary of Food and Agriculture.
ARTICLE 3. California Cattle Council [65015. - 65029.]
There is in the state government the California Cattle Council that consists of 11 members and 11 alternates appointed by the secretary, each of whom shall be a producer in this state who is a range cattle producer, cattle feeder, dairy producer, or processor, with the exception of the public member who shall be a resident of this state. The secretary shall appoint members and alternates to the council to reflect the diversity of California’s cattle industry, including women- and minority-owned businesses, varying beef and dairy products, and cattle producers varying in size from small to large based on the total number of animals raised, as described in subdivision (c) of Section 65001.
The secretary or the secretary’s designee shall serve as an ex officio member.
The secretary shall appoint to the council three range cattle producers, three cattle feeders, three dairy producers, one processor, and one public member to represent the general public.
Each member appointed as a range cattle producer, at the time of initial appointment, shall be a resident of a different county from the county in which any other range cattle producer members reside.
Each member appointed as a dairy producer, at the time of initial appointment, shall be a resident of a different county from the county in which any other dairy producer members reside.
The secretary shall use the same formula described in subdivisions (a) and (b) in the appointment of alternates.
Except as otherwise provided in this section, the public member and the public member’s alternate shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the council, except that the public member or the public member’s alternate shall not have a vote on issues regarding the assessment established pursuant to Section 65071.
The terms of office of the members and alternates of the council shall be three years. At the discretion of the secretary, the first appointments made under this chapter shall be so made that the terms of three members and the three members’ alternates shall expire at the end of one year, three members and the three members’ alternates shall expire at the end of two years, and three members and the three members’ alternates shall expire at the end of three years.
Any vacancy that occurs during the unexpired term shall be filled by the secretary for the unexpired term from eligible nominees. No council member or alternate shall serve more than two consecutive three-year terms. Service as an alternate does not disqualify a person to then serve two terms as a member, and a member who was appointed for a one-year or two-year term may serve two additional three-year terms.
If the secretary removes a member or alternate of the council, the vacancy shall be filled in the manner as provided in subdivision (a) for the duration of the unexpired term.
Six members of the council shall constitute a quorum for the transaction of all business, including the election of officers.
The council shall annually select a chairperson and vice chairperson from its membership, to serve at the council’s pleasure, who, together with three other members selected annually by the council, shall constitute an executive committee.
The executive committee shall have and exercise powers of the council as the council may delegate to it.
The council shall have two regular meetings each year at times and places determined by the council.
The times for regular meetings shall be fixed so that there is an interval of at least four months between each meeting.
The council may hold additional meetings at any time and place at the call of the chairperson.
The executive committee shall have two regular meetings each year and may hold additional meetings at any time and place at the call of the chairperson.
Members of the council shall be reimbursed for necessary traveling and other expenses incurred in the performance of their official duties.
An alternate member of the council shall sit as a regular member of the council if the regular member fails for any reason to attend any meeting of the council. An alternate member shall be compensated and reimbursed in the same manner and to the same extent as a regular member when serving and has all the powers, duties, liabilities, and immunities of the member in whose place he or she is serving, except that the alternate to the chairperson or vice chairperson shall not succeed to the functions of these offices or sit as a regular member on the executive committee.
The secretary or the secretary’s representative shall be notified and may attend each meeting of the council.
No member or alternate of the council shall receive a salary.
All funds received by any person from the assessments levied under this chapter or otherwise received by the council shall be deposited in banks designated by the council and shall be disbursed by order of the council through an agent or agents as it may designate for that purpose. A private agent or agents, other than the department, shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the council, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the council or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the council are limited to the funds collected by the council. No member or alternate of the council, or any employee or agent thereof, is personally liable for the contracts of the council. No member or alternate of the council, or any employee or agent thereof, is responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of council or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or alternate of the council, or any employee or agent thereof, is responsible individually for any act or omission of any other member or alternate of the council, or any employee or agent thereof. No member or alternate of the council, or any employee or agent thereof, is liable for the default of any other member or alternate of the council, or any employee or agent thereof.
The council may enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state and shall be prima facie evidence of the truth of all statements therein.
ARTICLE 4. Powers and Duties [65040. - 65058.]
The powers and duties of the council shall include, but are not limited to, all of those contained in this article.
The council may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, and orders in accordance with council procedures for purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, operating procedure, or order of the council. The council shall be charged with exercising any and all necessary duties to accomplish the objectives outlined in this chapter.
If the council and the California Beef Council determine that a project is of mutual benefit and consistent with state and federal laws governing the California Beef Council, the project may be jointly funded by the council and the California Beef Council, subject to approval by the secretary.
The council may employ a person to serve at the pleasure of the council as the executive director of the council and other personnel. If any person employed by the council engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the council of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the council. If the council fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The council may retain additional staff or agents of the council to discharge the duties outlined in this chapter.
Notwithstanding subdivision (d) of Section 65002, a member, alternate member, agent, or employee of the council shall not do either of the following:
Appear before any committee of the Legislature or federal government as a representative of the council unless requested to do so by that committee.
Lobby in any manner as a representative of the council.
The council may appoint committees composed of members, alternates, and nonmembers not serving with the council in any official capacity to advise the council in carrying out this chapter.
The council shall approve reasonable compensation for the executive director and any agents or contractors of the council.
The council may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, develop, own, and control the use of any intellectual or physical property, including real estate for the purpose of housing the operations of the council, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the council for the proper administration and enforcement of this chapter and the performance of its duties.
The council shall keep books, records, and accounts of all its transactions, dealings, contracts, agreements, funds, and expenditures as it deems necessary. Those books, records, and accounts shall at all times be open to inspection and audit by the secretary. The council shall be subject to an annual audit by an auditing firm selected by the council with the concurrence of the secretary. The audit shall be made a part of an annual report to be posted on the council’s Internet Web site and submitted to the department. In addition, the secretary may determine it is necessary to conduct, or cause to be conducted, a fiscal and compliance audit of the council.
Funds collected pursuant to this chapter shall not be used for political contributions.
The council may accept grants from state and federal entities to carry out the duties authorized by this chapter.
The council may collect information about California beef and dairy production and publish and distribute, without charge, a bulletin or other communication to all eligible producers.
The council shall establish an annual budget according to generally accepted accounting practices. The council shall prepare annually summarized statements of the activities in which it has been engaged in the previous annual period, and of the activities in which it proposes to engage in the ensuing annual period. The annual budget and statements shall be made available to all eligible producers at their request and shall also be posted on the council’s public Internet Web site.
Before the adoption of the annual budget, the council shall submit the proposed annual budget and its statement of contemplated activities to the secretary for the secretary’s concurrence.
The annual budget and statement of contemplated activities shall be concurred in by the secretary before disbursement of funds, with the exception of expenditures made by the council pursuant to Section 65043.
When the secretary is required to concur in a decision of the council, the secretary shall give his or her response to the council within 15 working days from notification of the decision. The secretary shall set forth in writing with specificity the reasons for any refusal to concur. The secretary’s response may be a requirement that additional information be provided.
The council shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter.
The secretary may require the council to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the council refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the council until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the council.
Actions of the council in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice before the council entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the council in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
The council may recommend to the secretary the adoption of administrative regulations that relate to the administration and enforcement of this chapter.
The council and the secretary shall keep confidential and shall not disclose, except when required by court order after a hearing in a judicial proceeding, all lists in their possession of persons subject to this chapter. However, the council shall establish procedures consistent with this confidentiality requirement to enable producers to communicate with other producers on the lists regarding noncommercial matters affecting the council and persons subject to this chapter.
Information on volume shipments, other information that is required for reports to governmental agencies, financial reports to the council, aggregate sales and inventory information, and any other information that does not include individual identifying producer or handler information may be disclosed by the council.
The council may investigate all matters that affect the administration of this chapter and report violations to the secretary.
A program or activity that is conducted or sponsored pursuant to this chapter shall not make false or unwarranted claims, or disparage the quality, value, use, or sale of any commodity authorized by law to be marketed in this state.
Paragraph (1) shall not be construed to prohibit disclosure of any information to an investigative agency or a member of the public to protect the health or safety of the public.
A program or activity shall not be conducted pursuant to this chapter with reference to a private brand or trade name that refers to beef or other products derived from the California cattle industry, except as provided for in subdivision (c).
The council shall not expend funds for the advertising of brand name beef or other products derived from the California cattle industry unless the expenditures are approved by a two-thirds vote of the council with the concurrence of the secretary. The council may expend funds to conduct cost-sharing advertising with nonbeef brand name products.
ARTICLE 5. Implementation and Suspension of Operations [65060. - 65069.]
On or before June 1, 2019, the Bureau of Livestock Identification shall submit to the secretary for review a list of producers who have sold or owned cattle in the last calendar year.
The secretary may require auction markets and packers to submit the names and mailing addresses of all producers from whom they acquired cattle in the most recently completed fiscal year. The request for information shall be in writing and shall be filed within 10 days following receipt of the request.
The secretary shall determine which producers are eligible to vote consistent with the definition of producer in subdivision (k) of Section 65012.
Any producer who believes himself or herself to be eligible to vote whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying the producer as a person eligible to vote. Failure to be on the list does not exempt the person from paying fees and does not invalidate any votes conducted pursuant to this chapter.
Any producer eligible to vote may contact those on the list regarding the referendum in a form and manner prescribed by the secretary if all expenses associated with those contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds that a majority of producers participating in an initial referendum vote conducted by the secretary on or before June 1, 2020, or a second referendum vote conducted by the secretary pursuant to Section 65066, approve the referendum.
An implementation referendum shall advertise the amount to be assessed and declare that the assessment shall be a mandatory fee. An implementation referendum shall also advertise that the council will accept petitions to refund the fee for any producer subject to this chapter pursuant to Section 65075.
The secretary shall establish a period in which to conduct a referendum, that shall not be more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum.
Nonreceipt of a ballot by an eligible producer shall not invalidate a referendum.
If the secretary finds that a majority vote has been given, the secretary shall certify and give notice of the majority vote to all producers whose names and addresses are on file with the secretary.
If the secretary finds that a majority vote has not been given for an initial referendum, the secretary shall certify and declare all provisions of this chapter inoperative, except as necessary to conduct a second implementation referendum vote pursuant to this section. The secretary shall conduct a second implementation referendum vote two years or later following certification of the first vote. If the second referendum vote conducted pursuant to this section does not receive a majority vote in favor, this chapter is repealed six months following the certification of the second vote unless a later statute is enacted altering this section.
Before an implementation referendum vote conducted by the secretary pursuant to this article, a proponent of the establishment of the council shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of analyzing the proposed council and certifying the necessary list of producers submitted by the Bureau of Livestock Identification and conducting the vote.
Any funds not used in conducting an implementation referendum established by this article shall be returned to the proponents of the council who deposited the funds with the secretary.
Upon establishment of the council, the council may reimburse the proponents of the council for any funds deposited with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in establishing the council.
Five years after implementation of this chapter, the secretary shall hold a public hearing after providing proper notice to producers subject to this chapter and any other persons or entities who have requested, in writing, notice of the hearing to determine whether the operation of this chapter should be continued. If, after the hearing, the secretary finds that a substantial question exists among the producers assessed under this chapter as to whether the operation of this chapter should be continued, the secretary shall conduct a reapproval referendum to be conducted among producers to determine whether the operation of this chapter shall be reapproved and continue in effect.
If the secretary finds, after conducting a hearing, that no substantial question exists or if a reapproval referendum is required and a majority of eligible producers voting in the referendum voted in favor of continuing the operation of this chapter, the secretary shall certify the vote and this chapter shall remain operative. If the secretary finds that a majority vote has not been given, the secretary shall certify the vote and declare the operation of this chapter suspended and the operations of the council concluded and funds distributed in the manner provided in subdivision (c). A bond or security shall not be required for the referendum. The secretary shall provide public notice of the suspension of this chapter on the department’s internet website.
On the expiration of this chapter pursuant to this article, the council shall remain in existence for the purpose of furnishing the secretary with a complete record of its outstanding financial obligations, accrued and to accrue. The secretary shall pay from the money deposited and disbursed any outstanding obligations and any obligations incurred by the secretary and the department under the terms and provisions of this section. Any money that remains shall be retained by the secretary to defray the expenses of formulation, issuance, administration, or enforcement of any subsequent program for beef promotion. If such a program is not undertaken within a period of three years from the date of termination of this chapter, the money shall be used to fund activities related to the subject matter of this chapter at the discretion of the secretary.
Following a hearing and favorable referendum, if required, the process specified in this section shall be conducted by the secretary every five years between July 1 and June 30 of the following year.
On the secretary’s own motion, at the request of the council, or at the request of a producer, the secretary may determine that it is no longer in the best interest of the state to continue the existence of the council and the programs established and maintained pursuant to this chapter.
If the secretary makes the determination described in subdivision (a), the secretary shall call a vote of the producers to determine if the council should be terminated.
The secretary shall certify a vote conducted pursuant to subdivision (b).
If a majority of producers vote in favor of terminating the council, the secretary shall declare the operation of this chapter suspended, the operations of the council concluded, and distribute the funds in the manner provided for in subdivision (c) of Section 65068. The secretary shall provide public notice of the suspension of this chapter on the department’s Internet Web site.
If a majority of producers do not vote in favor of terminating the council, the operation of this chapter shall continue in effect.
ARTICLE 6. Financial Provisions [65071. - 65077.]
In order to carry out the programs and administer the activities that are conducted pursuant to this chapter, an assessment of one dollar ($1) per head shall be paid on each sale of cattle and calves. The assessment shall be charged on all cattle and calves, except the following:
Hides, skins, or the offal of animals.
Any cattle or calves that are transported for purposes other than for sale or slaughter and without a change of ownership.
Any cattle or calves custom slaughtered exclusively for the owner, members of the owner’s household, or the owner’s nonpaying guests or employees.
Any cattle or calves weighing less than 200 pounds.
Any cattle or calves originating outside the state transported solely to a stockyard or slaughter facility to be sold or slaughtered within 30 calendar days of arrival.
Any cattle or calves sold within 10 days of being purchased where the seller can demonstrate the assessment has been paid within the past 10 days.
The assessment charged pursuant to this chapter shall not be charged or collected more than once from each owner upon the same animal.
Each person who is required to pay or collect the assessment shall maintain a complete and accurate record of all transactions subject to assessments under this chapter. These records shall contain information required by the secretary relating to the payment or collection of assessments, shall be preserved for a period of two years, and shall be offered and submitted for inspection and audit at any reasonable time upon written demand by the secretary or the secretary’s duly authorized agent.
All information obtained by the secretary or the secretary’s duly authorized agent from any inspection or audit of records shall be confidential and shall not be disclosed except when required in a judicial proceeding.
The assessment for cattle or calves, whether originating in the state or out of state, shall be paid by the seller. The assessment shall be charged and collected from the seller or from the seller’s account and paid to the council by each operator of a stockyard, livestock auction market, or slaughter facility. The assessment is due and payable to the council on or before the 15th day of the month next succeeding the month in which the cattle and calves are sold. Assessments that are not collected in the manner provided in this subdivision shall be collected from the seller by the Bureau of Livestock Identification at the time that brand inspection fees are collected.
The assessment for cattle or calves for which the assessment would not otherwise be collected pursuant to subdivision (a) and that are also exempt from a brand inspection shall be charged and collected from the seller and paid to the council in a manner determined by the department.
Any assessment that is not collected in the manner specified in subdivision (a) or (b) shall be paid to the council directly by the seller on or before the 15th day of the month next succeeding the month in which the sale occurs.
The assessments that are collected by the Bureau of Livestock Identification pursuant to this article shall be forwarded to the secretary at the same time and in the same manner as the inspection fees that are provided for in Article 9 (commencing with Section 21281) of Chapter 6 of Division 10. The secretary shall reimburse, from any money that is collected pursuant to this section, the Bureau of Livestock Identification and any other bureaus or agencies of the state for any additional expenses that are incurred by them in the administration or enforcement of this chapter.
Any person who is subject to the assessment that is required by Section 65071 may obtain a refund of the assessment collected by submitting to the council a claim for a refund. The claim shall be submitted to the council by mail, facsimile, electronic mail, or a refund request form through the council’s Internet Web site within 90 days after the date of the brand inspection or the date of payment of the assessment, whichever date is later. The refund of an assessment shall be made by the council within 60 days of the date on which the refund request is received. The council or the department may not place conditions on the issuance of the refund except for requiring the claim for the refund to demonstrate the fee has been paid. The secretary, department, council, or producers, by referendum, shall not limit or inhibit a refund under this section for a person that has paid the assessment required by Section 65071.
Proprietary information obtained pursuant to this article by the council or the secretary, including the names and addresses of producers and the amounts of individual refunds or the identity of a person that received a refund pursuant to Section 65075, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
Data that is aggregated from proprietary information, including the total amount refunded by the council annually, is not confidential, and may be disclosed to the public, if the data does not disclose proprietary information of an individual producer and the data does not identify an individual producer.
An assessment that is levied pursuant to this chapter is a personal debt of the assessed person.
ARTICLE 7. Actions and Penalties [65081. - 65087.]
Any person who fails to pay, collect, or remit any fees due within the time specified in this chapter shall be liable for administrative costs incurred by the department in enforcing this chapter.
The secretary may pursue an action to hold a person civilly liable in an amount not to exceed one hundred dollars ($100) for each head of cattle or calves that is sold by any person who fails to pay, collect, or remit any fees due within the time specified in this chapter. The person also shall be liable for the total amount of fees due and the costs of a civil suit, including attorney’s fees.
The secretary may request that the Attorney General file an action in an appropriate court to collect any unpaid fees, civil penalties, or other costs incurred by the department in pursuit of a violation.
The secretary may request that the Attorney General petition an appropriate court for the issuance of an injunction, restraining any person in violation of any requirement specified in this chapter, or regulation adopted pursuant to this chapter, from continuing the violation. The court also may require the performance of any obligation imposed under this chapter or any regulations adopted pursuant to this chapter.
Any action by the secretary for any penalty or other remedy that is prescribed under this chapter shall be commenced within three years from the date of discovery of the alleged violation. Any action against the council by any person shall be commenced within three years from the date of the alleged violation.
Any person subject to this chapter may contest a determination of delinquent assessments, or other violation of this chapter, and request an informal hearing as outlined in this section.
A request for an informal hearing shall be submitted in writing to the department.
A request for an informal hearing shall be submitted within 30 days from the receipt of the department’s adverse determination. The failure to present a timely request for an informal hearing constitutes a waiver of the respondent’s right to contest the adverse determination. The department shall deny an untimely request for a hearing.
Upon receipt of a timely request for an informal hearing, the department shall provide a notice of the hearing to the respondent that contains all of the following information:
Date, location, and time of the hearing.
The department’s contact information, including, but not limited to, applicable telephone and facsimile numbers.
Subject matter of the adverse determination.
Any other information or documentation relative to the adverse determination.
The department shall designate a hearing officer to preside over and conduct the informal hearing. A hearing officer may conduct a hearing by telephone, at the hearing officer’s discretion.
The standard of proof to be applied by the hearing officer shall be a preponderance of the evidence, unless statutes or regulations applicable to the determination provide a higher standard.
The hearing officer shall issue a written decision with a brief statement of the conclusion and findings to support the conclusion within 14 days after the conclusion of the hearing. The hearing officer may issue the decision orally at the conclusion of the hearing, subject to written confirmation.
The written decision of the hearing officer shall be served on the respondent either by overnight mail or by facsimile transmission.
The written decision of the hearing officer shall be effective immediately upon receipt and shall be final.
The respondent may appeal the hearing officer’s decision in accordance with Section 1094.5 of the Code of Civil Procedure.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the secretary with respect to any violation.
CHAPTER 3. The California Table Grape Commission [65500. - 65675.]
ARTICLE 1. Declarations and Purposes [65500. - 65502.]
The Legislature finds and declares all of the following:
Grapes produced in California for fresh human consumption compose one of the major agricultural crops of California, and the production and marketing of these grapes affects the economy, welfare, standard of living, and health of a large number of citizens residing in this state.
Increased plantings of vineyards and improved cultural practices for the production of California grapes for fresh human consumption have increased and will continue to increase the production of California grapes, and unless the fresh human consumption of California grapes is increased by the expansion of existing markets and the development of new markets, the interests of the fresh grape industry of California, and the public interest of the people of this state, will be adversely affected. The expansion of the table grape industry also provides an important source of jobs for many people in this state, a high proportion of whom reside in historically depressed areas of the state, and serves to ensure the preservation of an agrarian society.
The inability of individual producers to maintain or expand present markets or to develop new or larger markets for these grapes results in an unreasonable and unnecessary economic waste of the agricultural wealth of this state.
These conditions and the accompanying waste jeopardize the future continued production of adequate supplies of fresh grapes for human consumption for the people of this and other states, and prevent producers from obtaining a fair return for their labor, their farms, and their production. As a consequence, the purchasing power of these producers and their workforce has been in the past, and may continue to be in the future unless these conditions are remedied, low in relation to that of other people engaged in other gainful occupations within the state, and they are thereby prevented from maintaining a proper standard of living and from contributing their fair share to the support of the necessary governmental and education functions, thus tending to increase unfairly the tax burden of other citizens of the state.
These conditions vitally concern the health, peace, safety, and general welfare of the people of this state. It is therefore necessary and expedient in the public interest to protect and enhance the reputation of California fresh grapes for human consumption in intrastate, interstate, and foreign markets, and to otherwise act so to eliminate unreasonable and unnecessary economic waste of the agricultural wealth of this state.
The promotion of the sale of fresh grapes for human consumption by means of advertising, dissemination of information on the manner and means of production, and the care and effort required in the production of these grapes, the methods and care required in preparing and transporting these grapes to market, and the handling of the same in consuming markets, research respecting the health, food, and dietetic value of California fresh grapes and the production, handling, transportation, and marketing of California fresh grapes, the dissemination of information respecting the results of that research, instruction of the wholesale and retail trade with respect to handling thereof, and the education and instruction of the general public with reference to the various varieties of California fresh grapes for human consumption, the time to use and consume each variety and the uses to which each variety should be put, the dietetic and health value of fresh grapes, all serve to increase the consumption of fresh grapes and to expand existing markets and create new markets for fresh grapes, and prevent agricultural waste, and is therefore in the interests of the welfare, public economy, and health of the people of this state.
It is hereby declared to be the policy of this state to aid producers of California fresh grapes in preventing economic waste in the production and marketing of their commodity, to develop more efficient and equitable methods in that production and marketing, and to aid these producers in restoring and maintaining their purchasing power at a more adequate, equitable, and reasonable level.
The production and marketing of grapes produced in California for fresh human consumption is declared to be affected with a public interest; this chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
Notwithstanding other laws to the contrary, in the event a commodity or marketing agreement or marketing order under the jurisdiction of the United States Department of Agriculture or other appropriate federal agency, is created by referendum or under the applicable laws and procedures relating thereto, in this state or in any geographical area within this state, which agreement or order contains provisions substantially similar to the provisions of this chapter, this chapter shall be inapplicable to any producer, shipper, or other person covered by, and, to the extent of such coverage, during the existence of such federal agreement or order.
This chapter shall be known as the Ketchum Act.
ARTICLE 2. Definitions and General Provisions [65520. - 65533.]
As used in this chapter, the words in the following sections have the following meanings set forth hereafter unless otherwise apparent from the context.
“Cartwright Act” means the act set forth in Chapter 2 (commencing with Section 16700), Part 2, Division 7 of the Business and Professions Code.
“Unfair Practices Act” means the act set forth in Chapter 4 (commencing with Section 17000), Part 2, Division 7 of the Business and Professions Code.
“Fresh grapes” also designated “table grapes” means any and all varieties of grapes produced in the State of California shipped for fresh human consumption, but does not include grapes delivered to a processor for processing or grapes processed by a processor or grapes delivered to a winery for winemaking or grapes produced for use in the making of wine.
“Producer” means a person engaged within this state in the business of producing or causing to be produced for market “fresh grapes.”
“Shipper” means any person engaged within this state in shipping fresh grapes, whether as owner, agent, or otherwise.
“Processor” and derivatives therefrom, means every person and every plant within this state to whom or to which grapes are delivered for the purpose of drying, dehydrating, canning, pressing, crushing, extracting, cooking, quick freezing, or for use in producing or manufacturing a product or manufactured article.
“Person” means an individual, firm, corporation, association, or any other business entity, and includes a state agency that engages in any of the commercial activities regulated pursuant to this chapter.
“Secretary” means the Secretary of Food and Agriculture.
“Advertising and sales promotion” means, in addition to the ordinarily accepted meaning thereof, trade promotion and activities for the prevention, modification or removal of trade barriers which restrict the free flow of fresh grapes to market and may include the presentation of facts to, and negotiations with, state, federal or foreign governmental agencies on matters which affect the marketing of such grapes.
“State” means the State of California.
“Commission” means the California Table Grape Commission.
“Commissioner” means a person appointed by the secretary pursuant to Section 65550.
“Districts” means and includes:
District 1, which includes all that area of California south of a line described as beginning at the point of intersection of the shoreline of the Pacific Ocean with the northern boundary line of the County of San Diego; thence northeasterly along the northern boundary of the County of San Diego to the point of intersection with the western boundary of the County of Riverside; thence northerly along the western boundary of the County of Riverside to the northern boundary of the County of Riverside; thence easterly along the northern boundary of the County of Riverside to the point of intersection with the California-Arizona state boundary.
District 2, which includes all that area of California north of the northern boundary of District No. 1 and south of a line described as beginning at the intersection of the shoreline of the Pacific Ocean with a line projected due west from the intersection of U.S. Highway No. 466 and California State Highway No. 1; thence easterly along U.S. Highway No. 466 to the town of Famoso; thence from Famoso northeasterly along the Famoso to Woody County Road to the town of Woody; thence along a line due north to a point on the northern boundary of the County of Kern; thence easterly along the northern boundary of the County of Kern and along the northern boundary of the County of San Bernardino to the point of intersection with the California-Nevada state boundary.
District 3, which includes all that area of California north of the northern boundary of District No. 2 and south of a line described as beginning at the point of intersection of the shoreline of the Pacific Ocean with the westerly projection of the north line of Township 23 south, M.D. B. & M.; thence easterly along the north line of Township 23 south projected to the point of intersection with the Principal San Bernardino Meridian; thence due east along a line to the point of intersection with the California-Nevada state boundary.
District 4, which includes all that area of California north of the northern boundary of District No. 3 and south of a line described as beginning at the point of intersection of the shoreline of the Pacific Ocean with the westerly projection of the north line of Township 18 south, M.D. B. & M.; thence easterly along the north line of Township 18 south projected to the point of intersection with the Principal San Bernardino Meridian; thence southerly along the Principal San Bernardino Meridian to the Fifth Standard Parallel north, S.B. B. & M.; thence easterly along the Fifth Standard Parallel north to the point of intersection with the California-Nevada state boundary.
District 5, which includes all that area of California north of the northern boundary of District No. 4 and south of a line described as beginning at the point of intersection of the shoreline of the Pacific Ocean with the Fourth Standard Parallel south M. D. B. & M.; thence easterly along the Fourth Standard Parallel south to the point of intersection with the southerly projection of McCall Road in the County of Fresno; thence northerly along McCall Road to the point of intersection with Rose Avenue in the County of Fresno; thence easterly along Rose Avenue and along the easterly projection of Rose Avenue to the point of intersection with the main channel of Kings River; thence northerly along Kings River to the point of intersection with California State Highway Sign Route No. 180; thence easterly along California State Highway Sign Route No. 180 to the point of intersection with the County of Fresno boundary; thence due east along a line to the point of intersection with the California-Nevada state boundary.
District 6, which includes all that area of California north of the northern boundary of District No. 5 and south of a line described as beginning at the point of intersection of the shoreline of the Pacific Ocean with the northern boundary of the County of Monterey; thence easterly along the northern boundary of the County of Monterey to the northern boundary of the County of San Benito; thence easterly along the northern boundary of the County of San Benito to a point on the western boundary of the County of Merced; thence northeasterly along the western boundary of the County of Merced to the northern boundary of the County of Merced; thence easterly along the northern boundary of the County of Merced to a point on the northern boundary of the County of Mariposa; thence easterly along the northern boundary of the County of Mariposa to the eastern boundary of the County of Madera; thence southerly along the eastern boundary of the County of Madera to a point on the western boundary of the County of Mono; and also including all of the area in the County of Mono, California.
District 7, which includes all that area of California not included in any other district.
The commission may change the district boundaries by a two-thirds vote of the commission.
ARTICLE 3. The California Table Grape Commission [65550. - 65576.]
There is in the state government the California Table Grape Commission. The commission shall comprise three producers from each district appointed by the secretary from the nominees selected pursuant to this article and one public member appointed pursuant to Section 65575.1.
The California Table Grape Commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It shall adopt a corporate seal. Copies of its proceedings, records and acts, when certified by the secretary and authenticated by the corporate seal, shall be admissable in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
The commission may employ a president, a treasurer, and a secretary. The compensation of each officer shall be fixed by the commission and they shall serve at the pleasure of the commission with powers and duties that may be delegated to them by the commission. An officer employed pursuant to this section shall not be a commissioner.
A commissioner shall be an individual producer, or a partner or employee of a producer, who is actively engaged in growing fresh grapes within this state for a period of at least five years and is producing grapes subject to this chapter at the time of the election. No more than two members shall be persons employed by, or connected in a proprietary capacity with, the same corporation, firm, partnership, association, or business entity, provided that not more than one member in any district shall be so employed or connected. A commissioner shall maintain these qualifications during their term of office in order to remain on the commission.
The regular terms of office of the commissioners shall be three years from the date of appointment by the secretary and until their successors are appointed.
Each commissioner for each district shall be elected by a plurality of votes cast by producers in the district. Each producer who has grown fresh grapes in a district in the year preceding an election shall be entitled to one vote in the district.
The commission shall annually compile and maintain a list of eligible producers and certify the list to the secretary at least 30 days before the date set for a meeting to nominate commissioners to office. The list shall constitute the list of producers qualified to vote in the election of commissioners.
The commission, in preparing a list of producers to be used under this chapter, may omit from the list any person who makes only casual sales or sales as a result of activities other than a commercial farm business venture, as determined by the commission. A person who is omitted from the list is not subject to this chapter, including the payment of any assessments, and is not qualified as a producer under this chapter.
A person omitted from a list pursuant to this section may be included on any subsequent list if the person is found to be qualified as a producer at the time of preparing the list.
Upon establishment of the lists of producers, the secretary shall call meetings of producers in each district, for the purpose of nominating persons to be appointed to the office of commissioner. At each district meeting for the nomination of commissioners, the secretary or a representative authorized by the secretary shall preside, and receive nominations, and at the conclusion of the meeting shall announce the names of the persons nominated at the meetings and the time, the manner, and instructions for voting by mail. Thereafter, within 10 days after the meeting, the secretary shall mail to all producers ballots for the election of commissioners in the respective districts, with instructions for voting by mail. All votes shall be required to be delivered to the secretary or mailed for delivery within 10 days after issuance of ballots by the secretary.
Upon expiration of the voting period, the secretary shall tabulate all votes and appoint a commissioner for each district. If all nominees are unsatisfactory to the secretary, the commission shall continue to submit lists of nominees to the secretary until the secretary has made a selection.
Nonreceipt of notice of a meeting for the nomination of commissioners or of ballots shall not invalidate any such meeting, nomination or election.
A person appointed to the office of commissioner by the secretary shall be selected pursuant to the nomination, election, and appointment procedures established by the commission in accordance with this chapter and approved by the secretary.
In the event the office of a commissioner becomes vacant due to failure to qualify, resignation, disqualification, death or for any other reason, such position shall be filled by an election held by the commission. Nominations shall be received by the commission from the remaining commissioners in the district where the vacancy exists. An election shall then be held by the commission and a majority vote shall elect a commissioner, subject to appointment by the director, to fill out the unexpired term for which such election is being held. Vacancies occurring within six months prior to a regular district election may remain vacant until the next regular election. Commission members elected at special elections shall serve the unexpired term of the office to which they are appointed.
A majority of the members of the commission at any meeting shall constitute a quorum for the transaction of all business and the carrying out of the duties of said commission. Unless otherwise fixed by the commission, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
A commissioner shall not receive a salary. A commissioner may receive necessary traveling expenses and meal allowances, as approved by the commission.
All moneys received by a person from the assessments levied under the authority of this chapter or otherwise received by the commission shall be paid to the commission, shall be deposited into such banks as the commission may designate, and shall be disbursed by order of the commission.
The State of California shall not be liable for the acts of the commission or its contracts. Payment of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. No member of the commission or any employee or agent thereof shall be personally liable on the contracts of the commission nor shall a commissioner or employees of such commission be responsible individually in any way to any producer or shipper or any other person for errors in judgment, mistakes or other acts, either of commission or omission, as principal, agent or employee, except for their own individual acts of dishonesty or crime. No commissioner shall be held responsible individually for any act or omission of any other member of such commission. The liability of the commissioners shall be several and not joint, and no commissioner shall be liable for the default of any other commissioner.
The powers and duties of the commission shall include, but are not limited to, all of the following:
To elect a chairperson, and from time to time other officers as it may deem advisable, and delegate duties to the officers as may appear advisable.
To adopt and from time to time alter, rescind, modify, and amend all proper and necessary rules, regulations, procedures, and orders for the exercise of its powers and the performance of its duties, including rules for regulation of appeals from any rule, regulation, procedure, or order of the commission.
To administer and enforce this chapter, and do and perform all acts and exercise all powers incidental to or in connection with effectuating, or deemed reasonably necessary, proper, or advisable to effectuate, the purposes of this chapter.
To employ, and at its pleasure discharge, a president, a treasurer, a secretary, employees, and necessary personnel, including attorneys engaged in the private practice of the law, fix their compensation and terms of employment, prescribe their duties, and incur expenses as it may deem reasonably necessary and proper to properly perform its duties as authorized by this chapter. The Attorney General shall aid and assist the commission on its request and shall undertake judicial proceedings as requested by the commission to undertake on its behalf.
To establish offices, incur expenses, enter into any and all contracts and agreements, and create liabilities and borrow funds in advance of receipt of assessments as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
To keep accurate books, records, and accounts of all of its dealings, which shall be open to inspection and audit by the department, as directed by the secretary.
In the discretion of the commission, to investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for criminal violations of this chapter.
To promote the sale of fresh grapes by advertising and other similar means for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for fresh grapes, and to educate and instruct the public with respect to fresh grapes, the uses and time to use the several varieties, and the healthful properties and dietetic value of fresh grapes.
In the discretion of the commission, to educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling fresh grapes; arrange for the performance of dealer service work providing display and other promotional materials; make market surveys and analyses; present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the marketing, production, and distribution of fresh grapes; and undertake any other similar activities that the commission may determine appropriate for the maintenance and expansion of present markets and the creation of new and larger markets for fresh grapes.
In the discretion of the commission, to make in the name of the commission contracts to render service in formulating and conducting plans and programs, and other contracts or agreements as the commission may deem necessary for the promotion of the sale of fresh grapes.
In the discretion of the commission, to conduct, and contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from that research or elsewhere with respect to the marketing and distribution of fresh grapes, the production, storage, refrigeration, inspection, and transportation of fresh grapes, develop and discover the dietetic value of fresh grapes, develop and expand markets, and improve cultural practices and product handling so that the various varieties may be placed in the hands of the ultimate consumer in the best possible condition. In connection with that research, the commission may accept contributions of, or may match, private, state, or federal funds that may be available for these purposes, and may employ or make contributions of funds to other persons or state or federal agencies conducting that research.
In the discretion of the commission, to accept and match contributions of private, local, state, or federal funds and make contributions of commission funds to other persons or local, state, or federal agencies for purposes of promoting, enhancing, and maintaining the California fresh grape industry.
In the discretion of the commission, to cooperate with other private or governmental entities in the resolution of emergencies arising in the industry and impacting the health and safety of the public or the continued stability of the table grape industry.
To determine, subject to the limitations provided in Section 65600, not later than May 1 of each year, the assessment for the following 12-month period beginning on May 1 and ending on April 30.
In the discretion of the commission, to publish and distribute without charge a bulletin or other communication for dissemination of information relating to the fresh grape industry to producers and shippers.
In the discretion of the commission, to administer any program related to the table grape industry.
The commission shall continue to operate if, in a referendum conducted by the commission in which at least 40 percent of the total number of producers certified as marketing 40 percent of the total volume marketed by all producers on the list during the last completed marketing season participate, the secretary finds that either the following occurs:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of continuing the operation of the commission, and that the producers voting in favor marketed 51 percent or more of the total quantity of table grapes marketed in the preceding marketing season by all of the producers who voted in the referendum.
Fifty-one percent or more of the producers who voted in the referendum voted in favor of continuing the operation of the commission and that the producers voting in favor marketed 65 percent or more of the total quantity of table grapes marketed in the preceding marketing season by all of the producers who voted in the referendum.
The commission shall establish a period in which to conduct the referendum that shall not be less than 10 days or more than 60 days, and may prescribe additional procedures as may be necessary to conduct the referendum.
Nonreceipt of a ballot shall not invalidate the referendum. If the commission finds that a vote in favor of the continuing the operation of the commission has been given as provided in this section, it shall so certify to the secretary and give notice of the favorable vote by publication in a newspaper of general circulation in each district in accordance with Section 6066 of the Government Code and mail a copy of the notice to all producers and shippers whose names and addresses may be on file with the commission. The operation of the commission shall become effective upon completion of publication and 15 days after the certification to the secretary.
If the commission finds that a vote in favor of the operation of the commission has not been given as provided in this section, it shall certify that finding to the secretary, who shall declare the suspension of the operation of the commission upon the expiration of the current marketing season. Upon the declaration, the operations of the commission shall be wound up and funds shall be distributed in the manner provided in Sections 65662 and 65663.
The commission shall appoint a shipper advisory committee of five members appointed from shippers at large to advise the commission on the exercise of its powers and duties under this chapter. Each member shall be an individual shipper, or a partner or employee of a shipper, who is actively engaged in shipping fresh grapes in this state for a period of at least five years. A member of the shipper advisory committee shall maintain these qualifications during their appointment to the committee in order to remain on the committee.
Members of the shipper advisory committee shall not receive a salary. Members of the shipper advisory committee may receive necessary traveling expenses and meal allowances, as approved by the commission.
The public member of the commission shall be appointed by the secretary from nominees recommended by the commission. If all nominees are unsatisfactory to the secretary, the commission shall continue to submit lists of nominees to the secretary until the secretary has made a selection.
The public member of the commission shall represent the interests of the general public in all matters coming before the commission and shall have the same voting and other rights and immunities as other members of the commission. The public member shall have no financial interest in the table grape industry.
It is hereby declared, as a matter of legislative determination, that producers or employees of producers appointed to the commission pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that such representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to such commission, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 4. Assessments and Records [65600. - 65605.]
There is hereby levied and imposed upon all fresh grapes shipped during each marketing season an assessment as fixed by the commission at that amount determined by the commission as reasonably necessary to pay all obligations incurred or to be incurred in accordance with this chapter and as reasonably necessary to carry out the objects and purposes of this chapter. However, during any marketing season, the assessment shall not exceed $0.02 per pound, computed on net weight when shipped, whether in bulk or loose in boxes or in any other container or packed in any style package.
All shipments of 150 pounds or less of fresh grapes sold or shipped by a producer direct to the consumer are exempt from the assessments.
A shipper shall keep a complete and accurate record of all fresh grapes shipped by the shipper and the producer. The records shall be in simple form and contain the information prescribed by the commission. The records shall be preserved for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
Every shipper shall, at such times as the commission may by rule or regulation require, file with the commission a return, under oath, on forms to be prescribed and furnished by the commission, stating the quantity of fresh grapes shipped by him during the period or periods of time prescribed by the commission. The names of producers in each district for which such shipper has shipped, and such further information as may be necessary in the discretion of the commission to carry out the object and purposes of this chapter.
All information obtained by the commission from shippers shall be confidential and shall not be disclosed, except when required by a court order in a judicial proceeding involving this chapter.
All assessments imposed by this chapter shall be due and payable and shall be paid to the commission by each shipper. The commission shall, by rule or regulations, prescribe the time and method of payment thereof.
All such assessments shall be paid to the commission by the shipper first shipping such fresh grapes. Every shipper is authorized to collect such assessments from a producer, and shall deduct the assessment from any moneys owed to any such producer. Every shipper shall be primarily and personally liable for the payment of any such assessment, and failure of the shipper to collect the same from any producer shall not exempt any shipper from such primary liability. Any shipper who fails to file a return or pay any assessment within the time required shall thereby forfeit to the commission a penalty of 10 percent of the amount of such assessment determined to be due, but if the commission is satisfied that the delay was excusable, may remit all or any part of such penalty. Such penalty shall be paid to the commission and shall be available for expenditure in the same manner as an assessment.
ARTICLE 5. Actions and Penalties [65650. - 65654.]
The commission may, if it believes a violation of this chapter or any rule or regulation has occurred, or in the event of nonpayment of any assessment, bring an action in its name for collection of such assessment, civil penalties or for injunctive relief, including specific performance, of any obligation imposed by this chapter or any rule or regulation issued hereunder, or both, against any person violating any provisions of this chapter or any rule or regulation duly issued by the commission hereunder.
If it appears to the court, upon any application for a temporary restraining order or upon the hearing of any order to show cause why a preliminary injunction should not be issued or upon the hearing of any motion for a preliminary injunction, or if the court shall find in any such action that any defendant therein is violating or has violated any provision of this chapter or any rule or regulation duly issued by the commission hereunder, then the court shall enjoin such defendant from committing further violations and may compel specific performance of any obligation imposed by this chapter or any rule or regulation issued by the commission hereunder.
In any such action, it shall not be necessary to allege or prove that an adequate remedy at law does not exist.
In any such action or proceeding, the court shall award reasonable attorney’s fees incurred by the commission therein and shall, upon entry of any final judgment, enjoin any such shipper from further shipping until payment of any judgment entered for money and from further violating or aiding in violation of this chapter or any rule or regulation of the commission.
A person aggrieved by an action of the commission may file a grievance with the commission or a duly authorized committee of the commission designated for that purpose. An appeal from a decision of the commission may be made to the secretary. The secretary shall review the record of the proceedings before the commission. If the secretary finds that the record shows by substantial evidence that the commission’s action was not an abuse of discretion or illegal, the secretary shall dismiss the appeal.
If the secretary finds that the action is not substantially sustained by the record, was an abuse of discretion, or illegal, the secretary may reverse the action of the commission.
A decision of the secretary is subject to judicial review upon petition of the commission or any party aggrieved by the decision.
Any person subject to this chapter and allegedly aggrieved hereby or by any rule, or order of the commission shall comply with and exhaust the appeal procedure prescribed, in accordance with this chapter, by the rules and regulations of the commission, before application to any court for relief therefrom. The decision of the commission, in accordance with such rules and regulations, unless arbitrary or without evidentiary support, shall be final and conclusive.
An action by the commission for a violation of this chapter shall be commenced within two years from the date of discovery of the alleged violation. An action against the commission by a person shall be commenced within two years from the date of the act of which the person complains.
Venue for actions commenced by the commission may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
It shall be a misdemeanor for:
Any person to violate or aid in the violation of any provision of this chapter or any rule or regulation of the commission.
Any person to willfully render or furnish a false or fraudulent report, statement or record required by the commission pursuant to the provisions of this chapter or any rules or regulations of the commission.
Any person engaged in the shipping of table grapes or in the wholesale or retail trade thereof to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom he has received table grapes, regulated hereby, and the quantity of such commodity so received.
Agents of the commission, upon specific written authorization signed by the chairman or secretary of the commission, shall have the right to inspect the premises, books, records, documents and all other instruments of any carrier, railroad, truck, boat, grower, shipper, dealer or retailer for the purpose of enforcing this chapter and collecting the assessments levied under authority of this chapter. In the event of refusal of any person to allow such inspection, the commission may apply to any court for the issuance of a subpoena to compel such inspection.
ARTICLE 6. Suspension of Operations [65660. - 65663.]
Before the initiation of a referendum for the continuation of the operation of the commission, as described in Section 65573, and upon a finding by a two-thirds vote of the commissioners that the commission has effectuated the purposes of this chapter, the commission may file a petition with the secretary recommending that the commission continue to operate.
The secretary may, upon receipt of the recommendation, grant the petition or hold a public hearing to review the petition. Upon conclusion of the hearing, the secretary may grant the petition or require a referendum to be conducted among producers in accordance with Section 65573 to determine if the commission will continue to operate. The secretary may prescribe additional procedures as may be necessary to conduct the referendum.
At the close of the referendum period established for any referendum required by Section 65660, the secretary shall tabulate the ballots filed during that period. The secretary shall declare the suspension of the operation of the commission, effective upon expiration of the current marketing season, if at least 40 percent of the total number of producers, as established by the secretary as marketing 40 percent of the total volume marketed by all producers on the list established by the commission during the last completed marketing season, participate in the referendum and the secretary finds that either of the following occurs:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of the suspension, and the producers voting in favor marketed 51 percent or more of the total quantity of table grapes marketed in the preceding marketing season by all of the producers who voted in the referendum.
Fifty-one percent or more of the producers who voted in the referendum voted in favor of the suspension, and the producers voting in favor marketed 65 percent or more of the total quantity of table grapes marketed in the preceding season by all of the producers who voted in the referendum.
Upon and after the effective date of suspension of the operation of the commission, the operations of the commission shall be wound up and any and all moneys remaining held by the commission, collected by assessment in the prior marketing year and not required to defray the expenses of winding up and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding current marketing season; provided further, however, that if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of that pro rata refund to those persons, any moneys remaining from assessments collected in the prior marketing year after payment of all expenses of winding up and terminating operations shall be paid to a state or federal program benefiting the California table grape industry, or to a private organization that has received tax-exempt status from the Internal Revenue Service and that benefits the California table grape industry. Moneys from prior assessment years, investments, investment income, and remaining grant funds shall be paid to a state or federal program benefiting the California table grape industry, or to a private organization that has received tax-exempt stats from the Internal Revenue Service and benefits the California table grape industry.
Upon suspension of the operation of the commission, a notice of the suspension shall be posted on the department’s website. The commission shall mail a copy of the notice of suspension to all producers and shippers affected by the suspension whose names and addresses are on file with the commission.
ARTICLE 7. Miscellaneous [65671. - 65674.]
In any civil or criminal action or proceeding for violation of the Cartwright Act (Section 16700, Business and Professions Code, and following), the Unfair Practices Act (Section 17000, Business and Professions Code, and following), the Fair Trade Act (Section 16900, Business and Professions Code, and following), Section 1673 of the Civil Code, or any rule of statutory or common law against monopolies or combinations in restraint of trade, proof that the act complained of was done in compliance with the provisions of this chapter or a rule or regulation of the commission issued under this chapter and in furtherance of purposes and provisions of this chapter, shall be a complete defense to such action or proceeding.
The commission shall reimburse to the secretary all expenses incurred by them in the supervision of elections.
This chapter shall be liberally construed. If any section, clause or part of this chapter is for any reason held to be unconstitutional or invalid as applied to any person or as applied under certain circumstances, such decision shall not affect the remaining portions of this chapter nor the application of this chapter to other persons or under other circumstances.
ARTICLE 8. Termination [65675. - 65675.]
Between January 1 and March 31 of each fifth calendar year commencing with the year 1972, unless the commission has filed a petition for recommending the continuance of the operation of the commission pursuant to Section 65660, the secretary shall cause a referendum to be conducted by the commission among producers in the manner prescribed in Section 65573 to determine whether the operation of the commission shall be reapproved and remain effective.
If the commission finds that a favorable vote has been given, it shall so certify to the secretary and the operation of the commission shall remain effective. If the commission finds that a favorable vote has not been given, it shall certify that finding to the secretary who shall declare the operation of the commission suspended upon the expiration of the current marketing season ending April 30. Upon that declaration, the operations of the commission shall be wound up and funds distributed in the manner provided in Sections 65662 and 65663. A bond or security shall not be required for any referendum.
CHAPTER 4. California Iceberg Lettuce Commission [66501. - 66701.]
ARTICLE 1. Declarations and Purposes [66501. - 66507.]
The inability of lettuce shippers to maintain or expand present markets for iceberg lettuce results in an unreasonable and unnecessary economic waste and accompanying loss of employment to the California economy.
These conditions vitally concern the health, peace, safety, and general welfare of the people of this state. It is, therefore, in the public interest to protect and enhance the reputation of California iceberg lettuce in intrastate, interstate, and foreign markets, and to otherwise act to eliminate unreasonable and unnecessary economic waste of the agricultural wealth of this state.
The promotional, educational, economic and marketing research, and any similar activities authorized by this chapter will serve to expand existing markets and create new markets for California iceberg lettuce and to prevent agricultural waste and maintain employment, and are, therefore, in the interests of the welfare, economy, and health of the people of California.
It is hereby declared to be the policy of this state to aid in preventing economic waste in the marketing of iceberg lettuce, to develop more efficient and equitable methods in marketing, and to maintain job security for workers in iceberg lettuce and related industries.
The production and marketing of fresh California iceberg lettuce for human consumption is declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
Notwithstanding any other laws to the contrary, in the event a commodity or marketing agreement or marketing order under the jurisdiction of the United States Department of Agriculture, or other appropriate federal agency, is created by referendum or under the applicable laws and procedures relating thereto, in this state or in any geographical area within this state, which agreement or order contains provisions substantially similar to the provisions of this chapter, this chapter shall be inapplicable to any producer, shipper, or other person covered by, and, to the extent of such coverage, during the existence of, such federal agreement or order.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, and marketing research.
ARTICLE 2. Definitions and General Provisions [66521. - 66546.]
As used in this chapter, the following words have the following meaning set forth hereafter unless otherwise apparent from the context.
“Advertising and sales promotion” means, in addition to the ordinarily accepted meaning thereof, trade promotion and activities for the prevention, modification, or removal of trade barriers which restrict the free flow of iceberg lettuce to market and may include the presentation of facts to, and negotiations with, state, federal, or foreign governmental agencies on matters which affect the marketing of such lettuce.
“Books and records” means any book, record, account, contract, document, memorandum, paper, correspondence, or other written datum reflecting operations under this chapter.
“Cartwright Act” means the act set forth in Chapter 2 (commencing with Section 16700), Part 2, Division 7 of the Business and Professions Code.
“Cause to be produced” means the proprietary functions of initiating and supervising iceberg lettuce production.
“Commission” means the California Iceberg Lettuce Commission.
“Commissioner” means any member of the commission.
“Districts” consist of:
District 1. (Blythe area) Riverside and San Bernardino Counties.
District 2. (Imperial Valley area) Imperial County.
District 3. (Oxnard-Santa Maria area) Los Angeles, Orange, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties.
District 4. (Salinas-Watsonville area) Monterey, San Benito, Santa Cruz, Santa Clara, San Mateo, San Francisco, Marin, Sonoma, Mendocino, Humboldt, Alameda, and Del Norte Counties.
District 5. (San Joaquin-Sacramento Valley area) Sacramento, Kern, Fresno, San Joaquin, Stanislaus, Tulare, King, Merced, Madera, Contra Costa, Yolo, Solano, Napa, Colusa, Sutter, Yuba, Glenn, Butte Counties, and all other counties of California not included in Districts 1, 2, 3, and 4.
The number of districts and the boundaries of any district may be changed by a two-thirds vote of the commission when necessary to maintain similar total production among the districts and to ensure proper representation of producers. District boundaries are not required to coincide with county boundaries.
“Director” means the Director of Food and Agriculture.
“Fiscal year,” means the period beginning April 1 of any year and extending through March 31 of the following year.
“Grower” means any person engaged within this state in the business of producing or causing to be produced iceberg lettuce.
“Grower-handler” means any person who is engaged within the state in the business of producing or causing to be produced, through contractual agreements or other legal relationships and having an ownership therein, iceberg lettuce, and who in addition thereto prepares for market and markets, either through its own sales force or by agents or contract sellers, 250,000 pounds or more of such lettuce during a marketing season and who is not a secondary handler, as defined in Section 66542.5. Any producer who for his own account engages the services of another person to prepare for market and markets 250,000 pounds or more of his own production during a marketing season, shall be deemed the handler thereof. In determining whether the grower-handler has marketed 250,000 pounds or more of lettuce during a marketing season, there shall be excluded from such computations all shipments of 200 pounds or less of iceberg lettuce sold or shipped by a handler directly to the consumer.
“Grower-shipper” has the same meaning as grower-handler.
“Handle” means to perform any of the functions of a handler.
“Handler,” unless otherwise specified, has the same meaning as grower-handler as defined in Section 66532 and secondary handler as defined in Section 66542.5. “Handler” also means any person who engages in the marketing of iceberg lettuce on behalf of a grower, whether as an owner, agent, employee, broker, or commission merchant or otherwise.
“Iceberg lettuce” for purposes of this chapter means varieties of lettuce produced in California of the types which are distinguished as “crisphead” in that certain publication entitled “Lettuce Production in the United States, Agricultural Handbook No. 221,” August 1974 revision, issued by the Agricultural Research Service of the United States Department of Agriculture. The term does not include the types of lettuce otherwise distinguished in such publication by the terms “butterhead,” “cos or romaine” and “looseleaf.”
“Market” or ”marketing” means to sell, ship, or otherwise distribute iceberg lettuce in the commercial channels of trade in a manner consistent with this chapter.
“Marketing season” has the same meaning as fiscal year.
“Prepare for market” means to perform all functions of harvesting and preparing iceberg lettuce for market or marketing.
“Person” means any individual, firm, corporation, association, or other business unit, and shall include, for purposes of this chapter, any state agency which engages in any of the commercial activities regulated pursuant to the provisions of this chapter.
“Producer” has the same meaning as grower.
“Public representative” means a member of the commission appointed to represent the public generally pursuant to subdivision (c) of Section 66564.
“Secondary handler” means any person who purchases from a grower or grower-handler iceberg lettuce for the purpose of coring, shredding, or processing such iceberg lettuce for market and who markets such processed iceberg lettuce during a marketing season.
“Standard box” means standard containers for iceberg lettuce as such containers are defined in the California Administrative Code.
“Standard carton” has the same meaning as standard box.
“Standard container” has the same meaning as standard box.
“Unfair Practices Act” means the act set forth in Chapter 4 (commencing with Section 17000), Part 2, Division 7 of the Business and Professions Code.
ARTICLE 3. The California Iceberg Lettuce Commission [66561. - 66585.]
There is hereby created the California Iceberg Lettuce Commission to be thus known and designated. The commission is composed of 19 members, of which 14 are handlers as defined in Section 66532, four are members-at-large of which two may be grower-handlers from Arizona who otherwise qualify pursuant to Section 66532, and one is a person who is neither a producer nor a handler and who is appointed specifically to represent the public generally.
The director may require the commission to correct or cease any activity or function which is determined by the director not to be in the public interest or is in violation of this chapter.
If the commission refuses or fails to cease such activities or functions or to make such corrections as required by the director, the director may, upon written notice, suspend all or a portion of the activities of the commission until such time that the cessation or correction of activities or functions as required by the director have been accomplished.
Any written notice, to cease any such activity which is the subject of a contract of the commission entered into by the commission prior to such notice, shall not be effective until after the period of notice for termination provided in such contract or 120 days whichever is shorter.
Upon service of the written notice, the director shall notify the commission in writing, of the specific acts which he determines are not in the public interest or are in violation of this chapter.
Either party may bring an action for judicial relief in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The public member is appointed to the commission by the director from nominees recommended by the commission.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It shall adopt a corporate seal. Copies of its proceedings, records, and acts, when certified by the secretary, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
The commission may appoint a president, a treasurer, a secretary, and any other necessary personnel to carry out this chapter. The compensation of each officer shall be fixed by the commission. No officer shall be a member of the commission.
Except as provided in Section 66561, each member of the commission is required to be a citizen and a resident of this state. Additionally:
Each handler member is required to be currently engaged in the handling of iceberg lettuce. Not more than two handler members shall be employed by, or have a proprietary interest in, the same corporation, firm, partnership, association, or business organization. However, not more than one handler member in any one district shall be so employed or have such a proprietary interest.
Each member-at-large is required to be a person, whether or not engaged in the production or marketing of iceberg lettuce, whose qualifications are appropriate to the needs of the commission. The person may be a handler who is not appointed as a handler member but who nevertheless is qualified under subdivision (a) to serve as a handler member.
The person appointed to represent the public generally is required to be any person who is neither a producer nor a handler, whose qualifications are appropriate to the needs of the commission.
The qualifications of members of the commission, as set forth in this section, shall continue during their term of office.
Each of the five districts is represented by the following number of handlers:
District 1 has one member.
District 2 has three members.
District 3 has three members.
District 4 has five members.
District 5 has two members.
The regular term of office for handler members of the commission is three years, commencing April 1 of any year in which they are appointed, and, except with respect to the first of the members, each serves as follows:
District 1: one serves for three years.
District 2: one serves for one year, one serves for two years, and one serves for three years.
District 3: two serve for two years and one serves for three years.
District 4: one serves for one year, two serve for two years, and two serve for three years.
District 5: one serves for two years and one serves for three years.
Members-at-large and the public representative shall serve 3-year terms.
Each handler member for each district shall be elected by a plurality of votes cast by handlers in the district. Each handler who has handled iceberg lettuce in the district in which he is qualified to vote during the year preceding any election shall be entitled to one vote for each membership position apportioned to such district and for which the election is being held. In the event of a tie vote, there shall be another election to resolve the tie vote. The district in which a handler is qualified to vote shall be the district of his headquarters unless, upon application, he is certified to vote in a different district in which he handled iceberg lettuce during the preceding year.
Each member-at-large and the public member are persons nominated for appointment by the handler members of the commission and appointed by the director. Any nomination requires a plurality of votes cast by the handler members. When any positions later become vacant for any reason or cause, proceedings to fill the vacancy are the same as for the initial appointments and are undertaken at the next meeting of the commission after the position is vacated.
Immediately after January 1, 1978, the director shall establish a list of handlers in each district. Such list of handlers may be established from lists of such persons whose names and addresses appear on file in the department.
The commission or the director, in preparing a list of handlers to be used pursuant to this chapter, may omit from the list any person who functions as a handler, but who handles less than 250,000 pounds of iceberg lettuce during a marketing season. Any person so omitted from the list is not subject to this chapter, including the payment of any assessments, and is not qualified as a handler under this chapter. Any person omitted from a list pursuant to this section may be included on any subsequent list if found qualified as a handler at the time of preparing the list.
Lists of handlers may be obtained whenever and in the manner that the director deems necessary or advisable, including for the purpose of checking, comparing, or correcting the lists. The handler list shall, subject to any proper corrections, be final and conclusive in making determinations relative to the number and qualifications of handlers entitled to vote for commissioners.
Any handler, whose name does not appear on the director’s list of handlers, but who is otherwise qualified to participate in the commission activities, may have his or her name established thereon by filing with the director a signed statement advising that he or she handled iceberg lettuce in the immediately preceding marketing season and giving the quantity handled in each district and the quantity introduced into trade.
Upon establishment of lists of handlers, the director shall call meetings of handlers in each district for the purpose of nominating persons to be appointed to the office of commissioner. At each district meeting for the nomination of members, the director, or an authorized representative thereof, shall preside and receive nominations and, at the conclusion of each meeting, shall announce the names of persons nominated at the meeting and the time, the manner, and instructions for voting by mail. Thereafter, within 10 days after the final district meeting, the director shall mail to all handlers ballots for the election of members in the respective districts, with instructions for voting by mail. All ballots are required to be returned to the director and mailed for delivery within 10 days after issuance by the director.
Upon expiration of the voting period the director shall tabulate all votes and shall announce the names of those persons nominated for appointment as handler members of the commission from each district and shall appoint the nominees as members of the commission.
Nonreceipt of notice of a meeting for the nomination of commissioners or of ballots shall not invalidate any such meeting, nomination, or election.
The commission shall compile and maintain a list of qualified handlers.
Subsequent to the first election after January 1, 1978, persons to be appointed to the office of commissioner by the director shall be selected pursuant to such nomination and appointment procedures as shall be established by the rules and regulations adopted by the commission in accordance with the provisions of this chapter and approved by the director.
If the position of a handler member becomes vacant due to failure to qualify, resignation, disqualification, death, or for any other reason, the position shall be filled by a qualified handler who is nominated by the handler members of the commission and appointed by the director. Handlers to be considered for appointment to fill any such vacancy shall, if possible, be handlers whose names are submitted for consideration by the remaining handler members of the district in which the vacancy occurs. Any nomination requires a plurality of votes cast by the handler members. The appointment to a vacated handler member position is for the unexpired term of office. Any vacancy of a handler member position occurring within six months prior to a regular district election may remain vacant until the next regular election.
Except as provided in subdivision (b), nine members of the commission, of which at least eight are handler members, constitute a quorum at any meeting for the transaction of all business and the carrying out of the duties of the commission. However, pending the appointment of initial members-at-large and the public representative, eight handler members constitute the quorum. Members-at-large who are handlers may be deemed handler members, if necessary, to fulfill the requirements of a quorum. Unless otherwise provided by this chapter or fixed by the commission, the vote of a majority of the commission members present at the meeting and constituting a quorum shall constitute the act of the commission.
Ten members of the commission, of which at least nine are handler members, constitute a quorum during any period in which the commission is increased to 19 members pursuant to Section 66561. All other provisions of subdivision (a) otherwise apply to this subdivision.
The director or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission.
No commissioner shall receive a salary. Each commissioner shall be entitled to receive the sum of thirty-five dollars ($35) per day for each day spent in actual attendance on, or in traveling to and from, meetings of the commission or on special assignment for the commission, together with travel expenses incurred in carrying out the provisions of this chapter, maximum allowances for which shall be established by the commission.
All moneys received by the commission or its designated agents from the assessments levied under the authority of this chapter or otherwise received by the commission or paid to it shall be deposited in such banks as the commission may designate and shall be disbursed by order of the commission through such agent or agents as it may designate for that purpose. Any such agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business as such in the State of California, in favor of the commission, conditioned upon the faithful performance of his duties and the strict accounting of all funds of the commission, in the penal sum of not less than fifty thousand dollars ($50,000).
The State of California shall not be liable for the acts of the commission or its contracts. Payment of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. No member of the commission or any employee or agent thereof shall be personally liable on the contracts of the commission nor shall a commissioner or employees of such commission be responsible individually in any way to any producer, handler, shipper, or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee of the commission, except for their own individual acts of dishonesty or crime. No commissioner shall be held responsible individually for act or omission of any other member of such commission. The liability of the commissioners shall be several and not joint, and no commissioner shall be liable for the default of any other commissioner.
The powers and duties of the commission include, but are not limited to, all of the following:
To elect a chairman and, from time to time, any other officers that it may deem advisable and to delegate to these officers any administrative duties that may appear advisable.
To adopt and, from time to time, alter, rescind, modify, and amend all proper and necessary administrative bylaws, rules, regulations, and orders for the exercise of its powers and the performance of its duties, including rules for regulation of appeals from any bylaw, rule, regulation, or order of the commission.
To administer and enforce this chapter, and to do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, proper, or advisable to effectuate this chapter.
To employ a person to serve, at the pleasure of the commission, as president and chief executive officer of the commission and other personnel, including legal counsel, that is necessary to carry out this chapter. The Attorney General shall aid and assist the commission upon its request and shall undertake judicial proceedings requested by the commission to undertake on its behalf.
To establish offices and incur expense, and to enter into any and all contracts and agreements, and to create any liabilities and borrow any funds in advance of receipt of assessments that may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
To keep accurate books, records, and accounts of all of its dealings, which books, records, and accounts are subject to an annual private audit by an auditing firm selected by the commission and approved by the director. The audit shall be made a part of an annual report to all handlers of iceberg lettuce, copies of which shall also be submitted to the Legislature. In addition, the director may, as he or she determines necessary, conduct, or cause to be conducted, a fiscal and compliance audit of the commission.
To investigate and prosecute civil violations of this chapter and to file complaints with appropriate law enforcement agencies or officers for criminal violations of this chapter.
To maintain or expand the demand for iceberg lettuce nationally and abroad by means of promotional, educational, and similar programs and activities, including, but not limited to, the advertising and publicizing of iceberg lettuce in all forms of media, providing merchandising services and materials, conducting educational meetings and demonstrations, and sponsoring or participating in appropriate trade and food conferences.
To undertake market, transportation, and other pertinent studies and surveys; to present facts to, and negotiate with, private and governmental bodies and agencies on matters affecting sales and distribution and other concerns of iceberg lettuce production and marketing; and to undertake any other similar activities which the commission may determine appropriate for the maintenance and expansion of present markets and the creation of new and larger markets for iceberg lettuce.
To make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements that the commission may deem necessary for the promotion of the sale of iceberg lettuce.
To conduct, or contract with others to conduct, research as authorized by this chapter. In connection with this research, the commission may accept contributions of, or may match, private, state, or federal funds that may be available for these purposes, and may employ or make contributions of funds to other persons or state or federal agencies conducting this research.
To determine, subject to the limitations provided in Section 66621, not later than March 31 of each year, the assessment for the following 12-month period beginning April 1 and ending March 31.
To publish and distribute without charge bulletins or other communications for dissemination of information relating to the iceberg lettuce industry to producers, shippers, and handlers.
To enter into cost-sharing advertising and sales promotion with organizations representing other products, and with producers, handlers, and other persons involved in marketing iceberg lettuce, either individually or collectively, who are not subject to this chapter.
To fix the compensation for all employees of the commission.
To appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
To administer any state or federal program engaged in activities affecting iceberg lettuce.
ARTICLE 4. Voting Procedure [66601. - 66605.]
The provisions of this chapter, except as necessary to conduct the vote, shall not become operative until the director finds in a referendum conducted by him or her that not less than 40 percent of the handlers, as defined in Section 66532 and as determined in accordance with Section 66573, have participated and that either of the following occurs:
Sixty-five percent or more of the handlers voting marketed at least a majority of the total quantity of iceberg lettuce marketed in the preceding marketing season by all of the handlers who voted in the referendum and they voted in favor of this chapter.
A majority of the handlers voting marketed 65 percent or more of the total quantity of iceberg lettuce marketed in the preceding marketing season by all the handlers who voted in referendum and they voted in favor of this chapter.
The director shall establish a period in which to conduct such vote which shall not be less than 30 days nor more than 90 days from the date this section becomes operative, and may prescribe such additional procedure as may be necessary to conduct such vote.
Nonreceipt of a ballot shall not invalidate such vote.
If the director finds that a favorable vote has been given as provided in Section 66601, he shall so certify and announce to the commission and file notice thereof by publication in a newspaper of general circulation in each district in accordance with Section 6066 of the Government Code and shall mail a copy of such notice to all handlers whose names and addresses may be on file. All provisions of this chapter shall become operative upon completion of such publication but not before 15 days after such certification by the director to the commission.
If the director finds that a favorable vote has not been given under Section 66601, he or she shall so certify to the commission and shall declare this chapter inoperative.
ARTICLE 5. Assessments and Records [66621. - 66626.]
There is hereby levied and imposed upon all iceberg lettuce harvested and marketed in each fiscal year, an assessment to be paid by the handlers of the lettuce and fixed by not less than 10 of the 14 handler members of the commission at the amount determined by these commissioners as reasonably necessary to pay all obligations incurred, or expected to be incurred, in accordance with this chapter and as reasonably necessary to carry out the objects and purposes of this chapter.
The assessment shall not exceed two and one-half cents ($0.025) per standard carton of packed iceberg lettuce or five cents per hundred pounds ($0.05 per cwt.) of iceberg lettuce prepared for market or equivalent basis.
There shall be exempt from the assessments all shipments of 150 pounds or less of iceberg lettuce sold or shipped by a handler directly to the consumer.
Every handler shall keep a complete and accurate record of all iceberg lettuce handled by him and the producer thereof. Such records should be in simple form and contain such information as the commission shall prescribe by regulation. In the event such records are required to be kept under the Perishable Agricultural Commodities Act, the format provided therein may be utilized by such handlers in preparing such records.
Every handler shall, at such times as the commission may by rule or regulation require, file with the commission a report, under oath, on forms to be prescribed and furnished by the commission, stating the quantity of iceberg lettuce handled by him or her during the period or periods of time prescribed by the commission, the names of the producers in each district for which the handling was done, and further information as may be necessary in the discretion of the commission to carry out the object and purposes of this chapter.
Any information obtained by the commission from handlers shall be confidential and shall not be disclosed except when required in a judicial proceeding.
Assessments provided for in this article are levied upon the handler first marketing the iceberg lettuce being assessed. The handler is a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission. Failure of a handler to collect the assessment does not exempt the handler from liability for payment.
Every handler is primarily and personally liable for the payment of an assessment. Any handler who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, 2 percent interest per month on the unpaid balance. The penalty and interest are required to be paid to the commission and are available for expenditure in the same manner as an assessment.
ARTICLE 6. Actions and Penalties [66641. - 66646.]
The commission may, if it finds a violation of this chapter or any rule or regulation has occurred, or in the event of nonpayment of any assessment, bring a proceeding as provided under Section 66644 in its name for collection of such assessment, civil penalties, or for injunctive relief, including specific performance, or enforcement of any obligation imposed by this chapter or any rule or regulation issued thereunder, or both, against any person violating any provisions of this chapter or any rule or regulation adopted pursuant thereto.
A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief. A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified by Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until payment of the judgment is made in full by the defendant to the commission.
In any such proceeding, the court shall award reasonable attorney’s fees incurred by the commission therein and shall, upon entry of any final judgment, enjoin any such handler from further handling until payment is made for any judgment entered for money, and from further violating or aiding in violation of this chapter or any rule or regulation of the commission. No such proceeding may be commenced until the commission has exhausted its administrative procedures prescribed by the rules and regulations of the commission.
Any person aggrieved by any action of the commission may appeal to the director. The director shall review the record of the proceedings before the commission. If the director finds that the record shows by substantial evidence that the commission’s action was not an abuse of discretion or illegal, he shall dismiss such appeal. If he finds such action is not substantially sustained by the record, was an abuse of discretion, or illegal, he may reverse the action of the commission.
Any such decision of the director is subject to judicial review upon petition of the commission or any party aggrieved by the decision.
Any person subject to this chapter and aggrieved by any provision of this chapter or by any rule or order of the commission shall comply with and exhaust the appeal procedure prescribed by the rules and regulations of the commission, before application is made to any court for relief therefrom. The decision of the commission unless illegal, arbitrary, or without evidentiary support, shall be final and conclusive.
Any proceeding by the commission to enforce this chapter or by a handler applying for relief from rules, orders, or regulations of the commission may be commenced either in the county in which the defendant or any of the defendants reside or in which any act or omission or part thereof complained of occurred, or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
It shall be a misdemeanor to do any of the following:
For any person to violate or aid in the violation of this chapter or any rule or regulation of the commission.
For any person to willfully render or furnish a false or fraudulent report, statement, or record required by the commission pursuant to this chapter or any rules or regulations of the commission.
For any person engaged in the handling of iceberg lettuce to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the names and addresses of the persons from whom he or she has received iceberg lettuce and the quantity of the commodity so received.
For any person to secrete, destroy, or alter records required to be kept under this chapter.
The commission shall have the right to inspect the premises, books, records, documents, and all other instruments of any carrier, railroad, truck, boat, grower, shipper, handler, dealer, or retailer, to the extent the premises, books, records, documents and other instruments pertain to persons subject to the chapter for the purpose of enforcing this chapter and collecting the assessments levied under authority of this chapter. In the event of refusal of any person to allow the inspection, the commission may apply to any court for the issuance of a subpoena to compel such an inspection.
ARTICLE 7. Suspension of Operations [66661. - 66664.]
Upon the finding of nine of the members of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the director that the operation of this chapter be suspended. However, the suspension shall not become effective until the expiration of the fiscal year then current. The director shall, upon receipt of the recommendation, or may, after holding a public hearing to review a petition that was filed with him or her requesting the suspension, signed by 20 percent of the handlers as defined in Section 66532, cause a vote among handlers as defined in Section 66532, to determine if the operation and the operations of the commission should be suspended, and shall establish a period, which shall not be less than 30 nor more than 90 days after receipt by the director of the petition. The director may prescribe any additional procedure that may be necessary to conduct the referendum.
At the close of the voting period established, the director shall tabulate the ballots filed during such period. If at least 65 percent of the handlers have assented in writing for such suspension, and the handlers so voting marketed at least a majority of the total quantity of iceberg lettuce marketed in the preceding marketing season by all of the handlers who voted, or the majority of the handlers handling 65 percent of the total quantity of iceberg lettuce marketed in the preceding marketing season, the director shall declare the operation of the provisions of this chapter and of the commission suspended, effective upon expiration of the current fiscal year.
After the effective date of suspension of the operation of the provisions of this chapter and of the commission, as provided in Section 66662, the operations of the commission shall be wound up and any moneys remaining held by the commission, collected by assessment and not required to defray the expenses of winding up and terminating operations of the commission, shall be returned upon a pro rata basis to all handlers from whom assessments were collected in the immediately preceding current fiscal year. However, if the commission finds that the amounts so returnable are so de minimis as to make impractical the computation and remitting of such pro rata refund to such handlers, any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into the State Treasury as unclaimed trust moneys.
Upon suspension of the operation of this chapter and of the commission, as provided in Sections 66662 and 66663, a notice thereof shall be posted on a public bulletin board to be maintained by the director in his or her office, and a copy of such notice shall be published in a newspaper of general circulation in each district. The director shall also mail a copy of the notice of suspension to any producers, shippers, and handlers affected by such suspension whose names and addresses are on file with the commission.
ARTICLE 8. Miscellaneous [66681. - 66684.]
Nothing in this chapter shall apply to any order, rule, or regulation issued or issuable by the Public Utilities Commission or the Interstate Commerce Commission with respect to the operation of common carriers.
In any civil or criminal action or proceeding for violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any rule of statutory or common law against monopolies or combinations in restraint of trade, proof that the act complained of was done in compliance with this chapter, or a rule or regulation of the commission issued pursuant thereto, and in furtherance of purposes and provisions thereof, shall be a complete defense to the action or proceeding.
The commission shall reimburse to the director all expenses incurred by the director in carrying out his duties and responsibilities under this chapter, except for the expenses incurred for any action under Section 66561.4.
This chapter shall be liberally construed. If any section, clause, or part of this chapter is for any reason held to be unconstitutional or invalid as applied to any person or as applied under certain circumstances, such decision shall not affect the remaining portions of this chapter nor the application of this chapter to any other persons or under any other circumstances.
ARTICLE 9. Continuation [66701. - 66701.]
Between January 1 and March 31 of each fifth calendar year commencing with the year 1982, the director shall cause a vote to be conducted among handlers, as defined in Section 66532, in the manner prescribed in Section 66601 to determine whether the operations of this chapter shall be reapproved and continued effective. If a favorable vote has been given, the director shall so certify and announce to the commission and all provisions of this chapter shall remain in effect. If the director finds that a favorable vote has not been given, he or she shall certify and announce that fact to the commission, and he or she shall declare the operation of this chapter and the commission suspended upon the expiration of the current fiscal year ending March 31. Thereupon, the operations of the commission shall be wound up and funds distributed in the manner provided in Sections 66663 and 66664. No bond or security is required for any referendum.
CHAPTER 5. California Avocado Commission [67001. - 67143.]
ARTICLE 1. Declaration and General Provisions [67001. - 67006.]
Avocados produced in this state constitute one of the state’s principal tree fruit crops. The avocado industry in this state is expanding. The industry constitutes an important source of jobs for many people in the state, a high proportion of whom are from underprivileged and historically deprived segments of the population.
Opportunity exists for continued growth and expansion of the industry, by creating new markets. The success of an expansion program is uniquely dependent upon effective advertising, promotion, and collection and dissemination of public information, since the creation of new markets is essentially a matter of educating and informing people of the use, nutritional value, and availability of avocados.
The establishment of a commission is imperative for the efficient development and management of a national and international advertising program which will ensure that the California avocado industry can compete successfully in the marketplace and increase revenues to avocado producers.
The production and marketing of avocados produced in this state is hereby declared to be affected with public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of avocados the opportunity to avail themselves of the benefits of collective action in the broad fields of advertising; promotion; production, nutrition, and marketing research; quality and maturity standards; the collection and dissemination of crop volume and related statistics; and public education.
No action taken by the commission, or by any person in accordance with this chapter or with rules or regulations adopted under this chapter, is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
ARTICLE 2. Definitions [67021. - 67040.5.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Avocado” means any variety of avocado produced in the state, including any avocado delivered to a processor for processing into any avocado product.
“Books and records” mean books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to the provisions of this chapter.
“Commission” means the California Avocado Commission.
“Ex officio members” means nonvoting members of the commission.
“Handler” means any person who engages, in this state, in the operation of selling, marketing, or distributing avocados which he or she has produced or purchased or acquired from a producer, or which he or she is marketing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise.
“Handler” also includes any person engaged as a processor in the business of processing avocados.
When the handler is a corporation or a limited liability company, all of the directors, officers, managers, and members of the corporation or limited liability company in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments to which a corporate handler or a handler that is a limited liability company may be subject pursuant to this chapter shall include identical liability upon each individual director, officer, manager, or member of the corporation or limited liability company.
“Handler” does not include a cooperative bargaining association that recommends that its members market their avocados through specified handlers and which otherwise is not involved in the sale of avocados.
“Handler” also does not include a retailer, except for a retailer who purchases or acquires from any producer, or handles on behalf of any producer, avocados which were not previously subjected to regulation by the commission.
“Handle” means to engage in the business of a handler.
“Marketing research” means any research relating to the sale or inventory of avocados.
“Marketing season” or “fiscal year” means the period beginning November 1 of any year and extending through the last day of October of the following year.
“Person” means an individual, partnership, corporation, limited liability company, or other business entity.
“Processor” means any person engaged, within this state, in any of the activities with respect to avocados as set forth in Section 58619.
“Process” means to engage in the business of a processor.
“Producer” or “grower” means any person who is engaged within this state in the business of producing, or causing to be produced, avocados for market. “Producer” or “grower” does not include any person who has an average annual production of less than 10,000 pounds of avocados in the three preceding marketing years.
“Production research” means any research related to the production of avocados other than marketing research.
“Secretary” means the Secretary of the Department of Food and Agriculture.
ARTICLE 2.5. Districts [67041. - 67042.]
The commission shall establish no fewer than three districts and no more than five districts within the state, each representing approximately the same percentage of avocado production in California.
Beginning in the 2000–01 marketing season, districts shall be reapportioned every fifth year in accordance with redistricting procedures adopted by a two-thirds vote of the commission and concurred in by the secretary.
ARTICLE 3. The California Avocado Commission [67051. - 67062.]
There is in the state government the California Avocado Commission.
The commission shall be composed of the following members:
If the commission consists of three districts, nine producers who are not handlers, three elected from each district.
If the commission consists of four districts, eight producers who are not handlers, two elected from each district.
If the commission consists of five districts, 10 producers who are not handlers, two elected from each district.
Two avocado handlers elected on a statewide basis.
One public member who shall be appointed to the commission by the secretary from nominees recommended by the commission.
The secretary who shall be a nonvoting ex officio member of the commission.
The secretary may require the commission to correct or cease any activity or function which is determined by the secretary not to be in the public interest or is in violation of this chapter.
If the commission refuses or fails to cease the activities or functions or to make corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities of the commission until the time that the cessation or correction of activities or functions as required by the secretary have been accomplished.
Any written notice, to cease any activity which is the subject of a contract of the commission entered into by the commission prior to the notice, shall not be effective until after the period of notice for termination provided in the contract or 120 days, whichever is shorter.
Upon service of the written notice, the secretary shall notify the commission in writing, of the specific acts which he or she determines are not in the public interest or are in violation of this chapter.
Either the commission or the secretary may bring an action for judicial relief in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
Each district shall have one alternate producer member, to be elected in the same manner as producer members.
The alternate producer member shall, in the absence of a producer member from the same district, serve in place of the absent producer member on the commission and shall have, and be able to exercise, all the rights, privileges, and powers of the producer member when serving on the commission.
There shall be one alternate handler member to be elected in the same manner as the handler members.
The alternate handler member shall, in the absence of a handler member, sit in place of the absent handler member on the commission and shall have, and be able to exercise, all the rights, privileges, and powers of the handler member when sitting on the commission.
There shall be one alternate public member who shall be appointed by the secretary from nominees recommended by the commission.
The alternate public member shall, in the absence of the public member, serve in place of the absent public member on the commission and shall have, and be able to exercise, all the rights, privileges, and powers of the public member when serving on the commission.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status making him or her ineligible to serve, or through death, removal, or resignation, shall be filled, for the unexpired portion of the term, by a majority vote of the commission.
Any person filling a vacant member or alternate member position shall meet all the qualifications set forth in this article as required for the member whose office he or she is to fill.
Producer members and alternate producer members on the commission shall have a financial interest in producing, or causing to be produced, avocados for market. In order to be elected a member or alternate member, a producer shall, at the time of the election, have a financial interest in the production of avocados within the district in which the producer stands for election.
A producer may stand for election in any district in which the producer has a financial interest in the production of avocados.
Handler members and the alternate handler members shall have a financial interest in handling avocados for markets. To be nominated and elected, a handler or alternate handler shall handle no less than 1 percent of the total industry volume of avocados in the preceding marketing year. A handler elected to the commission pursuant to this section shall be required to maintain their eligibility under this section during their entire term of office.
The public member and alternate member shall not have any financial interest in the avocado industry. Except for the nomination of another public member, the public member and their alternate member on the commission shall have all the powers, rights, and privileges of any other member on the commission.
Except as specified in subdivision (b), the term of office of all members and alternate members, except the ex officio member, shall be for two years from the date of their election or appointment and until their successors are qualified.
Of the first members of the commission from each district, one shall serve for one year, and the remaining member or members shall serve for two years, with the determination of the term of each member to be made by lot. Subsequent to the election of the first members from each district, the terms of the members shall continue to be staggered, as provided in this subdivision.
Terms of office of each member and alternate member shall be limited to four consecutive terms.
The commission shall have the power to sue and be sued and to contract and be contracted with. Copies of its proceedings, records, and acts, when certified by an officer, are admissible in evidence in all courts of the state, and are prima facie evidence of the truth of all statements therein.
The commission may appoint its own officers, including a chair, one or more vice chair, and other officers it deems necessary. The officers shall have the powers and duties as may be delegated to them by the commission.
The commission shall have the power to appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
Unless otherwise specified, a quorum of the commission shall be any nine voting members if the commission consists of three or four districts and any 10 voting members if the commission consists of five districts. The vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
The secretary or the secretary’s representatives shall be notified and may attend each meeting of the commission.
A member, alternate member, or member of a committee who is a nonmember of the commission shall not receive a salary, but may receive a sum of not to exceed one hundred dollars ($100) per day, as established by the commission, for each day spent in actual attendance at or in traveling to and from meetings of the commission or committees of the commission, or on authorized assignment for the commission, together with the necessary traveling expenses and meal allowances, as approved by the commission.
All moneys received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission, shall be deposited in such financial institutions as the commission may designate and shall be disbursed by order of the commission through a member, officer, or employee designated for that purpose. Any such person shall be bonded by a fidelity bond, executed by a surety company authorized to transact business as such in the State of California, in favor of the commission, conditioned upon the strict accounting of all funds of the commission in the penal sum of not less than five hundred thousand dollars ($500,000).
The state is not liable for the acts of the commission or its contracts, except for state-directed supervision of the avocado inspection program, as specified in Chapter 9 (commencing with Section 44971) of Division 17, which is performed under an agreement that specifies that each of the parties shall be responsible and liable for that party’s decisions made pursuant to the agreement, and that each of the parties shall not be held liable by the other party for the decisions made pursuant to the agreement. Payment of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. A member of the commission or alternate member, or any employee or agent thereof, shall not be personally liable on the contracts of the commission nor shall a member, alternate member, or employee of the commission be responsible individually in any way to a producer or handler or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for their own individual acts of dishonesty or crime. A member or alternate member shall not be held responsible individually for any act or omission of any member of the commission. The liability of the members and alternate members shall be several and not joint, and a member or alternate member shall not be liable for the default of any other members or alternate members.
ARTICLE 4. Voting Procedures [67081. - 67082.]
The secretary shall establish a list of producers in each district. In establishing the lists, the secretary shall require that handlers in the state submit the names, mailing addresses, grove location, and handled volume of each producer from whom they purchased or handled avocados in the preceding marketing season. The request for information from handlers shall be in writing and shall be filed by the handlers within 60 days following receipt of the written request.
Any producer of avocados whose name does not appear upon the secretary’s list of producers may have his or her name established on the list by filing with the commission a signed statement, identifying himself or herself as a producer. Failure to be on the list does not exempt the producer from paying assessments under this chapter.
Persons to be elected to the commission shall be selected pursuant to nomination and election procedures adopted by the commission and concurred in by the secretary.
ARTICLE 5. Duties and Powers of the Commission [67091. - 67095.]
The powers and duties of the commission include, but are not limited to, all of the following:
Adopt and, from time to time, alter, rescind, modify, and amend all proper and necessary procedures to carry out this chapter and in the exercise of its powers and the performance of its duties, including the adoption of procedures to regulate appeals from any action of the commission.
Administer and enforce this chapter, and to do and perform all acts and exercise all powers incidental to or in connection with or deemed reasonably necessary, proper, or advisable to effectuate the purposes of this chapter.
Employ a person, to serve, at the pleasure of the commission, as president and chief executive officer of the commission and other personnel, including legal counsel.
Establish offices, incur expenses, enter into any and all contracts and agreements, and create liabilities and borrow funds in advance of receipt of assessments that may be necessary, at the discretion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
Keep accurate books, records, and accounts of all of its dealings, which books, records, and accounts are subject to an annual independent audit by an auditing firm approved by the secretary. The independent audit shall be made a part of an annual report to all producers and handlers of avocados, copies of which shall also be submitted to the Legislature. In addition, the secretary may, as the secretary determines necessary, conduct, or cause to be conducted, a fiscal and compliance audit of the commission.
Promote the sale of avocados by advertising and other promotional means for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for avocados and to educate and instruct the public with respect to avocados and the uses of the several varieties and the healthful properties and nutritional value of avocados.
Enter into cost-sharing advertising with other products considered, by the commission, to be fair and equitable to both parties.
Educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling avocados; arrange for the performance of dealer service work providing display and other promotional materials; make market and inventory surveys and analyses; present facts to and negotiate with state, federal, and foreign agencies on matters which affect the avocado industry; and undertake any other activities that the commission may determine appropriate for the maintenance and expansion of present markets and the creation of new markets for avocados.
Make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements that the commission may deem necessary for the promotion of the sale of avocados.
Conduct and contract with others to conduct scientific research, including the study, analysis, dissemination, and accumulation of information obtained from the research or elsewhere respecting the inventory, marketing, and distribution of avocados. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate, and notwithstanding any other law, may be maintained in confidence by the commission and not disseminated to any person not subject to this chapter.
Accept and match contributions of private, local, state, or federal funds and make contributions of commission funds to other persons or to local, state, or federal agencies for purposes of promoting, enhancing, and maintaining the California avocado industry.
Publish and distribute without charge, a bulletin or other communication for dissemination of information relating to inventory, marketing, and other information of value to the commission and the avocado industry to producers, handlers, and the public.
Establish an assessment rate to defray operating costs of the commission.
Establish an annual budget.
Investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
Carry out the requirements prescribed in Chapter 9 (commencing with Section 44971) of Division 17.
To provide to the secretary, on a quarterly basis, a summary of the programs, activities, and costs under review for the next marketing season.
Require producers to provide information as determined by the commission pertaining to the locations at which avocados are produced and the annual volume of avocados produced at each location. The information shall be provided in a time and manner prescribed by the commission and shall be subject to the confidentiality provisions of Section 67104.
Use information provided to the commission for purposes of food safety, communications, reapportionment of districts, the conduct of elections and referenda, and any other matters related to the activities of the commission.
To prevent unfair trade practices which are detrimental to California’s avocado industry, including, but not limited to, deception and misinformation, the commission shall collect and disseminate to any and all interested persons, handler f.o.b., market price information based on sales which have occurred.
The identity of each handler reporting information and the information reported under this section shall be kept confidential and not made public under any circumstances. Information that gives industry totals, averages, and other similar data may be disclosed by the commission.
The procedure for the collection and dissemination of the information pursuant to this section shall be approved by the secretary.
In order to avoid excessive administrative charges which adversely impact avocado producers, handlers, and consumers, the commission may decide, not later than February 1 of any year, to exercise its authority prescribed in Chapter 9 (commencing with Section 44971) of Division 17 during the next succeeding marketing season.
ARTICLE 6. Assessments and Records [67101. - 67107.]
The commission shall, not later than November 1 of each year, establish the assessment as a fixed rate or percentage of value for the following marketing season beginning November 1, and ending October 31. The assessment shall not exceed 612 percent of the gross dollar value of the year’s sales of avocados by all producers to handlers, or which are sold by handlers on behalf of producers. Expenditures for administrative purposes within the maximum assessment shall not exceed 212 percent of the gross dollar value of sales of avocados by all producers to handlers, or which are sold by handlers on behalf of producers. Assessments provided for in this section shall be upon the producer. The handler shall deduct that assessment from either amounts paid to the producer or amounts retained by the handler if the handler is also the producer, and the handler shall be a trustee of those funds until they are paid to the commission at the time and in the manner prescribed by the commission.
The combined assessment of the commission and any state marketing order shall not exceed 612 percent of the gross value of the year’s sales of avocados by all producers to handlers, or which are sold by handlers on behalf of producers.
This chapter does not apply to producers who produce avocados on a noncommercial basis for the producer’s home use or where the avocado trees are used only for ornamental purposes. Producers from whom assessments are collected may apply for the refund of assessment payments following the close of any marketing season in which payments have been made, and the commission shall refund assessment payments if the producer demonstrates to the satisfaction of the commission that the avocados were produced for noncommercial purposes.
Handlers shall keep a complete and accurate record of all avocados shipped by him or her and the name of the producer whose avocados were shipped. The records shall be in simple form and contain such information as the commission shall prescribe. The records shall be preserved by the handler for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All the proprietary information obtained by the commission or the secretary from handlers, including, but not limited to, the names and addresses of producers, is confidential and shall not be disclosed except when required by a court order in a judicial proceeding involving this chapter. Information on volume shipments, inventory, crop value, and any other information which is required for reports to governmental agencies and the commission, and other information which the handlers request from the commission that gives only totals, excluding individual handler information, may be disclosed by the commission so long as the information excludes individual handler data which shall be kept confidential as provided in this section.
All assessments shall be paid to the commission by the handler first handling avocados who shall be primarily and personally liable for the payment of the assessment. Failure of the handler to collect the assessment from any producer shall not exempt the handler from that primary liability. Any producer or handler subject to this section who fails to file a return or pay any assessment within the time required shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, 112-percent interest per month on the unpaid balance.
The commission shall reimburse the secretary for all expenditures incurred by the secretary carrying out his or her duties and responsibilities under this chapter, except for the expenses incurred for any action under Section 67051.6.
ARTICLE 7. Actions and Penalties [67111. - 67114.]
It shall be a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding five thousand dollars ($5,000), or by both the fine and imprisonment, for any person to do any of the following:
Willfully to render or furnish a false report, statement, or record required by the commission.
Willfully fail to render or furnish a report, statement, or record required by the commission.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon a petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and to obtain injunctive relief or specific performance, with respect to this chapter and the rules and regulations adopted under this chapter.
A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified by Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding avocados until there is full compliance with and satisfaction of the judgment.
The commission is entitled, upon a favorable judgment for the commission, to receive reimbursement for any reasonable attorney’s fees and other actual related costs incurred in any action commenced by the commission for the enforcement of this chapter. Venue for actions commenced by the commission may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
It is not necessary for the commission to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.
This chapter shall be liberally construed. If any section, clause, or part of this chapter is for any reason held to be unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the remaining portions of this chapter or the application of this chapter to any other persons or under any other circumstance.
ARTICLE 8. Implementation, Continuation, or Suspension and Termination [67121. - 67126.]
This chapter, except as necessary to conduct such vote, shall not become operative until the secretary finds, in a referendum conducted by the secretary in which at least 40 percent of the total number of producers, from the list established by the secretary, producing at least 40 percent of the total volume of avocados marketed during the last completed marketing season participate, either one of the following:
Sixty-five percent or more of the producers certified by the secretary who voted in the referendum, voted in favor of this chapter, and the producers so voting marketed 51 percent or more of the total quantity of avocados marketed in the preceding marketing season by all of the producers who voted in the referendum.
Fifty-one percent or more of the producers who voted in the referendum voted in favor of this chapter and the producers so voting marketed 65 percent or more of the total quantity of avocados marketed in the preceding marketing season by all of the producers who voted in the referendum.
The secretary shall establish a period in which to conduct the referendum which shall not be less than 10 days nor more than 60 days in duration, and may prescribe any additional procedure as may be necessary to conduct the referendum.
Nonreceipt of a ballot shall not invalidate the referendum.
If the secretary finds that a favorable vote has been given as provided in Section 67122, he or she shall certify and give notice of that favorable vote to all producers and handlers whose names and addresses may be on file with the secretary. This chapter shall become operative on the 15th day after certification by the secretary and publication to producers and handlers.
If the secretary finds that assent has not been given as provided in Section 67121, he or she shall so certify and declare all provisions of this chapter inoperative.
Prior to holding the referendum, sureties shall post a bond or security, acceptable to the secretary, in an amount which the secretary shall determine to be sufficient to pay the cost of the referendum should the election determine that the operation of this chapter is to be suspended.
ARTICLE 9. Continuation and Suspension and Termination [67131. - 67134.]
Between November 1, 1980, and October 31, 1981, and every fifth year thereafter, the secretary shall cause a referendum to be conducted by the commission among producers to determine whether this chapter shall be reapproved and continued in effect. The operations of this chapter shall be reapproved and continued in effect if the secretary finds that a majority of the eligible growers voting in the referendum voted in favor of continuing the operations of this chapter. If the secretary finds that a favorable vote has been given, he or she shall so certify and this chapter shall remain effective. If the secretary finds that a favorable vote has not been given, he or she shall so certify and declare this chapter and the commission suspended upon the expiration of the then-current marketing season. Thereupon, the operations of the commission shall be wound up and funds distributed in the manner provided in Section 67133. No bond or security shall be required for the referendum.
Upon the finding of nine voting members of the commission if the commission consists of three or four districts, or of 10 voting members of the commission if the commission consists of five districts, that this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operations of the commission be suspended, provided that the suspension shall not become effective until the expiration of the current marketing season. The secretary shall, upon receipt of the recommendation, or upon a petition filed with him or her requesting the suspension, signed by 15 percent of the producers by number who produced not less than 15 percent of the volume in the immediately preceding year, cause a referendum to be conducted among the listed producers to determine if the operation of this chapter and the operations of the commission shall be suspended, and shall establish a referendum period, which shall not be less than 10 days nor more than 60 days in duration. The secretary is authorized to prescribe any additional procedure necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers, on a list established by the secretary, marketing 40 percent of the total volume marketed by all producers during the last completed marketing season, participate in the referendum, the secretary shall suspend this chapter upon the expiration of the current marketing season, if he or she finds either one of the following:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of the suspension, and the producers so voting marketed 51 percent or more of the total quantity of avocados marketed in the preceding marketing season by all of the producers who voted in the referendum.
Fifty-one percent or more of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed 65 percent or more of the total quantity of avocados marketed in the preceding season by all of the producers who voted in the referendum.
After the effective date of suspension of this chapter and of the commission, the operations of the commission shall be wound up, and any asset of the commission shall be liquidated and the proceeds, along with any and all moneys remaining held by the commission, collected by assessment and not required to defray the expenses of winding up and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of a pro rata refund to those persons, any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program or used to fund activities related to the subject matter of this chapter.
Upon suspension of this chapter and the commission, a notice shall be issued by the secretary, and a copy of the notice shall be published in a newspaper of general circulation in each district. The commission shall provide a copy of the notice of suspension to all producers and handlers affected by the suspension whose names and addresses are on file.
ARTICLE 10. Quality Standards [67140. - 67143.]
The commission may recommend to the secretary the adoption of avocado quality standards or engage in any other activity authorized pursuant to the California Marketing Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of Division 21) that is in accordance with the procedures specified in that act, unless otherwise specified in this article.
Any standards or activities adopted pursuant to this article shall be implemented by the secretary at the beginning of the marketing season next succeeding the date in which they were approved by the secretary.
Any standards or activities recommended by the commission and concurred in by the secretary, shall not be operative until approved in the manner specified in Section 67121.
The commission shall serve as the advisory body to the secretary on all matters pertaining to this article.
CHAPTER 6. California Kiwifruit Commission [68001. - 68144.]
ARTICLE 1. Declaration and General Provisions [68001. - 68006.]
The kiwifruit industry in this state is expanding and can constitute one of California’s principal fruit crops. The industry can provide an important source of employment for many people in the state, a high proportion of whom are from underprivileged and historically deprived segments of the population.
As an exotic subtropical fruit, the kiwifruit is not heavily consumed in this country or abroad. Opportunity exists for continued growth and expansion of the industry, by creating new markets in such areas. The success of such an expansion program is uniquely dependent upon effective advertising and promotion, since the creation of new markets is essentially a matter of educating people to the use of a previously unknown or unrecognized food.
The establishment of a California Kiwifruit Commission is necessary for the efficient development and management of a national and international advertising program and essential to ensure that the California kiwifruit industry can compete successfully in the marketplace.
The production and marketing of kiwifruit produced in this state is hereby declared to be affected with public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, marketing research, and production research.
No action taken by the commission, nor by any individual in accordance with this chapter or with rules or regulations adopted under the chapter, shall be deemed a violation of the Cartwright Act, the Unfair Practices Act, the Fair Trade Act, or any rule of statutory or common law against monopolies or combinations in restraint of trade.
ARTICLE 2. Definitions [68021. - 68044.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Kiwifruit” means any variety of kiwifruit (“Kiwi,” “Chinese Gooseberry,” or species Actinidia deliciosa) produced in the state, including any kiwifruit delivered to a processor for processing into any kiwifruit product.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to the provisions of this chapter.
“Commission” means the California Kiwifruit Commission.
“Commissioner” means any member of the commission.
“Distribute” means to engage in the business of a distributor.
“Distributor” means any person who engages in the operation of selling, marketing, or distributing kiwifruit which he has produced or purchased or acquired from a producer, or which he is marketing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise. When the distributor is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments of which a corporate distributor may be subject pursuant to this chapter shall include identical liability upon each individual director or officer of the corporation. It does not, however, include a retailer, except a retailer who purchases or acquires from, or handles on behalf of any producer, kiwifruit which was not previously subject to assessment by the commission.
“Secretary” means the Secretary of Food and Agriculture.
“Districts” shall consist of the following:
District 1 consists of Del Norte, Siskiyou, Modoc, Humboldt, Trinity, Shasta, Lassen, Tehama, Mendocino, Glenn, Butte, and Plumas Counties.
District 2 consists of Lake, Colusa, Sutter, Yolo, Napa, Sonoma, Marin, and Solano Counties.
District 3 consists of Sierra, Yuba, Nevada, Placer, El Dorado, Alpine, Amador, and Sacramento Counties.
District 4 consists of Contra Costa, Alameda, Santa Clara, Santa Cruz, San Benito, San Francisco, San Mateo, and Monterey Counties.
District 5 consists of San Joaquin, Calaveras, Tuolumne, Mono, Mariposa, Stanislaus, and Merced Counties.
District 6 consists of Madera, Fresno, Kings, Tulare, Inyo, and Kern Counties.
District 7 consists of San Luis Obispo, Santa Barbara, and Ventura Counties.
District 8 consists of San Bernardino, Riverside, Orange, Los Angeles, San Diego, and Imperial Counties.
The boundaries of any district may be changed by a two-thirds vote of the commission, which is concurred in by the secretary, when necessary to maintain similar total production among the districts, and to insure proper representation by producers. These boundaries need not coincide with county lines.
“Ex officio member” shall be a nonvoting member of the commission.
“Handle” means to engage in the business of a handler as defined in Section 68033.
“Handler” means any person engaged, within this state, as a distributor in the business of distributing kiwifruit or any person engaged as a processor in the business of processing kiwifruit and employees thereof so engaged.
“Independent handler” means a handler who primarily handles fruit for an independent producer or grower.
“Cooperative handler” means a handler who primarily handles fruit for a cooperative producer or grower.
“Marketing research” means any research relating to the sale of kiwifruit.
“Marketing season” or “fiscal year” means the period beginning October 1 of any year and extending through September 30 of the following year.
“Nonprofit cooperative association” or “cooperative” means any corporation which is organized pursuant to Chapter 1 (commencing with Section 54001) of Division 20.
“Processor” means any person engaged, within this state, in the operation of canning, fermenting, distilling, extracting, preserving, grinding, crushing, or in any other manner changing the form of kiwifruit for the purpose of preparing it for market and marketing the kiwifruit, or who is engaged in any activities which are performed for the purpose of marketing processed kiwifruit. When the processor is a corporation, all of the directors and officers of the corporation in their capacity as individuals are included, and any liability for failure to collect or make payment of assessments to which a corporate processor may be subject pursuant to this chapter includes the same liability for each individual director or officer of the corporation.
The term “processor” does not, however, include a person who is engaged in manufacturing from kiwifruit so changed in form another and different product.
“Process” means to engage in the business of a processor.
“Producer” or “grower,” means any person who is engaged, within this state, in the business of producing, or causing to be produced for market, kiwifruit, who shall, upon request, provide proof of commodity sale and proof of assessment payment during the preceding marketing season, or provide adequate proof, as determined by the commission, of actual or anticipated commodity sale and assessment payment during the existing marketing season.
“Production research” means any research related to the production, harvest, and post harvest handling of kiwifruit, other than marketing research.
“Sale” means the point at which the producer transfers title to the kiwifruit in exchange for financial compensation or other valuable consideration. A sale may occur even though the kiwifruit purchased is not placed in normal marketing channels.
“Tray” means a receptacle used in the packaging or handling of kiwifruit.
ARTICLE 3. The California Kiwifruit Commission [68051. - 68065.]
There is in the state government the California Kiwifruit Commission, a state agency operating under authority of this chapter. The commission shall be composed of eight kiwifruit producers who are not handlers, one producer member-at-large, one handler, and one public member. Eight producers, one from each district, shall be elected by and from producers within the respective districts. The producer member-at-large shall be elected by and from producers statewide. The handler member shall be elected by and from handlers statewide.
The public member shall be appointed to the commission by the secretary from the nominees recommended by the commission.
The secretary, the handler member, and other appropriate individuals as determined by the commission shall be nonvoting ex officio members of the commission.
The secretary may require the commission to correct or cease any existing or proposed activity or function that is determined by the secretary to be in violation of this chapter or not to be in the public interest.
If the commission refuses or fails to cease those activities or functions or to make corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities and functions of the commission until such time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the written notice shall be without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission, in writing, of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and the secretary may make recommendations that will make those activities or functions acceptable.
The commission or secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities under this chapter. However, the court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of responsibility for payment of the secretary’s legal costs with regard to the action.
Each member of the commission, except the ex officio members, has an alternate member, who is elected in the same manner as the member. An alternate member, in the absence of the member for whom he or she is alternate, serves in place of the member on the commission, and has, and exercises, all the rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or the disqualification of a member, the alternate shall act as a member on the commission until a successor is elected and has qualified as provided in Section 68055.
Any vacancy on the commission including, but not limited to, the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status making the member ineligible to serve, or through death, removal, or resignation, shall be filled, for the term, by the commission by majority vote. However, that person shall fulfill all the qualifications set forth in this article as required for the office he or she is to fill. Qualifications of any person to fill a vacancy on the commission shall be certified, in writing, to the secretary. The secretary shall notify the commission if he or she determines that any such person is not qualified.
Any producer member or his alternate on the commission shall be an individual or an employee representing a producer who has a financial interest in producing, or causing to be produced, kiwifruit for market. The qualifications of a producer member and an alternate producer member shall be maintained during the entire term of office.
Any handler member or his alternate shall be an individual or an employee representing a handler who has a financial interest in handling kiwifruit for market. The qualifications of a handler member and an alternate handler member shall be maintained during the entire term of office.
The public member or his alternate on the commission, shall have all the powers, rights, and privileges of any other member on the commission. The public member shall not have any financial interest in the kiwifruit industry.
The term of office of all commissioners, except any ex officio member, shall be for two years from the date of their election and until their successors are qualified; provided, however, that of the first members of the commission, one-half shall serve for one year, and one-half shall serve for two years, with the determination of term of each such member to be made by lot at the time of election. The same selection procedure shall apply to the two handler members. Terms of office of each commissioner shall be limited to four consecutive terms, except that any member selected to serve a one-year term may serve one additional two-year term.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
The secretary or the secretary’s representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission. However, the secretary shall not be entitled to attend an executive session of the commission called for the purpose of discussing potential or actual litigation against the department.
When the secretary is required to concur in a decision of the commission, the secretary shall indicate his or her response to the commission within 15 working days from notification of the decision. The response may be a request that additional information be provided.
No commissioner or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each commissioner, except ex officio government members, and each member of a committee established by the commission who is a nonmember of the commission may receive a sum of not to exceed one hundred dollars ($100) per day, as established by the commission, for each day spent in actual attendance on, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission, together with the necessary traveling expenses and meal allowances, as approved by the commission.
All moneys received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission, shall be deposited in such banks as the commission may designate and shall be disbursed by order of the commission through such agent or agents as it may designate for that purpose. Any such agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business as such in the State of California, in favor of the commission, in the penal sum of not less than twenty-five thousand dollars ($25,000).
The state shall not be liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. No member of the commission or alternate member, or any employee or agent thereof, shall be personally liable on the contracts of the commission nor shall a commissioner, alternate member, or employee of such commission be responsible individually in any way to any producer or handler or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his own individual acts of dishonesty or crime. The commission accepts full responsibility to defend any member of the commission or alternate member, or an employee or agent thereof, against any such claim, except for individual acts of dishonesty or crime. No commissioner or alternate member shall be held responsible individually for any act or omission of any member of such commission. The liability of the commissioners shall be several and not joint, and no commissioner shall be liable for the default of any other commissioner.
ARTICLE 4. Powers and Duties of the Commission [68081. - 68082.]
To adopt and, from time to time, alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders for carrying out this chapter, including appeals from any bylaw, rule, regulation, or order of the commission in a manner established by the commission.
To administer and enforce this chapter, and to do and perform all acts and exercise all powers incidental to, or in connection with or deemed reasonably necessary for, the proper or advisable effectuation of the purposes of this chapter.
To appoint its own officers, including a chairperson, one or more vice chairpersons, and any other officers as it deems necessary. The officers have the powers and duties delegated to them by the commission.
To employ a person to serve, at the pleasure of the commission, as president and chief executive officer of the commission and other personnel, including legal counsel, as necessary to carry out this chapter. The commission may retain a management firm or any staff from any board, commission, or committee of the state to perform the functions prescribed by this subdivision under the control of the commission. If the person engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective, and if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
To fix the compensation for all employees of the commission.
To appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
To establish offices and incur expense, and to enter into any and all contracts and agreements, and to create any liabilities and borrow any funds in advance of receipt of assessments that may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
To keep accurate books, records, and accounts of all of its dealings, which books, records, and accounts shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. The audit shall be made a part of an annual report to all producers and handlers of kiwifruit, copies of which shall also be submitted to the Legislature and the department. In addition, the secretary may, as he or she determines necessary, conduct, or cause to be conducted, a fiscal and compliance audit of the commission.
To promote the sale of kiwifruit by advertising and other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for kiwifruit and to educate and instruct the public with respect to kiwifruit and the uses and time to use the several varieties and the healthful properties and nutritional value of kiwifruit.
To educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling kiwifruit; to arrange for the performance of dealer service work providing display and other promotional materials; to make market surveys and analyses; to present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the marketing of kiwifruit.
To make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements that the commission may deem necessary for the promotion of the sale of kiwifruit.
To conduct and contract with others to conduct scientific research, including the study, analysis, dissemination, and accumulation of information obtained from that research or elsewhere respecting cultural and production practices, marketing, and distribution of kiwifruit. In connection with the research, the commission may accept contributions of, or to match, private, state, or federal funds that may be available for those purposes, and to employ or make contributions of funds to other persons or state or federal agencies conducting the research.
To collect, publish, and distribute, without charge, a bulletin or other communication for dissemination of information, including, but not limited to, crop statistics, relating to the kiwifruit industry to producers and handlers.
To establish an assessment rate to defray operating costs of the commission.
To establish an annual budget according to acceptable accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to subdivision (e).
To submit a statement of contemplated annual activities authorized under this chapter, including advertising, promotion, marketing research, and production research, which shall be concurred in by the secretary.
To administer, if requested by an advisory board, a board of directors, or any other authorized agent of a governmental program, any governmental program establishing grades and standards for the kiwifruit industry.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The commission shall provide to producers, free of charge, the names and addresses of producers on the list maintained by the commission. Handlers and other persons may obtain the names and addresses of producers on the commissions’s list upon reimbursement of the commission’s actual costs of reproduction and delivery.
In order to prevent unfair trade practices, which are detrimental to California’s kiwifruit industry, including, but not limited to, deception and misinformation, the commission may collect and disseminate to any and all interested persons, handler f.o.b., market price information based on sales that have occurred.
The identity of each handler reporting information and the information reported under this section shall be kept confidential and not made public under any circumstances. Information that gives industry totals, averages, and other similar data may be disclosed by the commission.
The procedure for the collection and dissemination of the information pursuant to this section shall be approved by the secretary.
ARTICLE 5. Implementation and Voting Procedures [68091. - 68099.]
The secretary shall establish a list of producers eligible to vote on implementation of this chapter. In establishing this list, the secretary shall require that handlers, county agricultural commissioners, and kiwifruit producers in this state submit the names, mailing addresses, and district numbers of all kiwifruit producers who produce kiwifruit. The request for such information shall be in writing. The list shall be filed within 30 days following receipt of the written notice.
Any producer of kiwifruit whose name does not appear upon the secretary’s list of producers affected may have his or her name established on that list by filing with the secretary a signed statement, identifying himself or herself as a producer. Failure to be on the list does not exempt the producer from paying assessments under this chapter.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds, in a referendum conducted by the secretary, that at least 40 percent of the total number of producers from the list established by the secretary pursuant to Section 68091, participate, and either of the following:
Sixty-five percent or more of the producers who voted in the referendum, and the producers so voting marketed a majority or more of the total quantity of kiwifruit in the preceding season by all of the producers who voted in the referendum, voted in favor of this chapter.
A majority or more of the producers who voted in the referendum, and the producers so voting marketed 65 percent or more of the total quantity of kiwifruit in the preceding season by all of the producers who voted in the referendum, voted in favor of this chapter.
The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe such additional procedure as may be necessary to conduct a referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate such a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 68092, the secretary shall certify and give notice of the favorable vote to all producers and handlers whose names and addresses may be on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in Section 68092, the secretary shall so certify and declare all provisions of this chapter inoperative.
Upon certification of the commission, the secretary shall call meetings of producers in each district for the purpose of nominating and electing persons for appointment to the commission by the secretary. All producers on the secretary’s list shall be given written notice of the election meetings at least 15 days prior to the meeting date.
Subsequent to the first election of commissioners under this chapter, persons to be elected to the commission shall be selected pursuant to the nomination and election procedures established by the commission with the concurrence of the secretary.
Prior to the referendum vote conducted by the secretary pursuant to Section 68092, the proponents of the commission shall deposit with the secretary the amount the secretary may deem necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any unused funds in carrying out Section 68092 shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out Section 68092, and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [68101. - 68108.]
The commission shall, not later than October 1 of each year, establish the assessment for the marketing year beginning October 1 and ending September 30.
The combined assessment of the commission and any other state or federally authorized kiwifruit production research and market program shall not exceed 5 percent of the average f.o.b. (free on board) gross dollar value of the kiwifruit marketed by or on behalf of producers during the previous three marketing years, or twenty-five cents ($0.25) per seven-pound tray of kiwifruit or the equivalent thereto, whichever is less. The assessment may be computed and assessed on a per tray basis if the commission determines that an assessment on that basis would be reasonably equivalent to the assessment established by the commission pursuant to subdivision (a).
Expenditures for administrative purposes, as defined by the commission, within the maximum assessment shall not exceed 112 percent of the gross dollar value of kiwifruit marketed by or on behalf of producers during that marketing year.
Assessments shall be based on the total income or other valuable consideration received from the sale of kiwifruit, in whole or in part, by every producer subject to this article.
The provisions of this chapter do not apply to kiwifruit produced only for the producer’s home use or where the kiwifruit are used only for ornamental purposes; provided, however, that such producer shall file an affidavit with the commission establishing that his kiwifruit are not produced for commercial purposes. In any event, no production of kiwifruit is exempt from the assessment under this article when handled according to the provisions of this chapter.
Every handler shall keep a complete and accurate record of all kiwifruit shipped by him and the name of the producer whose kiwifruit were shipped. Such records shall be in simple form and contain such information as the commission shall prescribe. Such records shall be preserved by the handler for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from producers or handlers is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter. Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission or aggregate sales and inventory information, and any other information that the commission requires, excluding individual handler information, may be disclosed by the commission.
Assessments provided for in this article shall be upon the producer. The handler first handling the kiwifruit being assessed shall deduct such assessments from amounts paid by him to the producer and shall be a trustee of such funds until they are paid to the commission at the time and in the manner prescribed by the commission.
Every handler shall be personally liable for the payment of the collected assessments, and failure of the handler to collect the assessment from any producer shall not exempt any handler from such liability.
Any assessment that is levied as provided for in this chapter is a personal debt of every producer so assessed. However, no producer shall be liable for assessments if the producer can prove, by evidence satisfactory to the commission, that (1) the assessments were deducted by the handler from amounts paid to the producer, or (2) that the handler failed to pay the producer for kiwifruit purchased from or marketed on behalf of the producer.
Failure of a handler to collect assessments from amounts paid to the producer shall not relieve the producer of its obligation to pay the assessments.
Any producer or handler who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of such assessment determined to be due and, in addition, 112 percent interest per month on the unpaid balance. The penalty and interest may be reduced or waived by the commission pursuant to procedures adopted by the commission.
ARTICLE 7. Actions and Penalties [68111. - 68115.]
It shall be a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both such fine and imprisonment, for any person to do any of the following:
Willfully to render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of kiwifruit in order to avoid payment of assessments on the product’s highest value.
When engaged in the shipping of kiwifruit or in the wholesale or retail trade of kiwifruit, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom he has received kiwifruit and the quantity so received.
Secrete, destroy, or alter records required to be kept under the provisions of this chapter.
The commission shall adopt procedures for the purpose of addressing any claims relating to this chapter made against the commission or any of its individual members, alternates, employees, or agents, and for the purpose of granting individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for that purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance, respecting this chapter and the rules and regulations adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief. A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified by Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until there is full compliance with and satisfaction of the judgment. Except as provided in Section 68054, upon a favorable judgment for the commission, it may receive reimbursement for any reasonable attorney’s fees and other related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
It is not necessary for the commission to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.
This chapter shall be liberally construed. If any section, clause, or part of this chapter is for any reason held to be unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the remaining portions of this chapter or the application of this chapter to any other persons or under any other circumstance.
ARTICLE 8. Continuation, Suspension, and Termination [68131. - 68140.]
Between October 1, 1984, and September 30, 1985, the commission shall cause a referendum to be conducted among producers in the manner prescribed in Section 68092 to determine whether the operations of this chapter shall be reapproved and continued effective. If the secretary finds that a favorable vote has been given, the secretary shall so certify and all provisions of this chapter shall remain effective. If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the current marketing season ending September 30, 1985. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 68134. No bond or security shall be required for any such referendum.
Following a favorable referendum conducted prior to September 30, 1985, a referendum shall be conducted by the commission every fifth year thereafter between October 1st and January 31st, following procedures provided by this section, unless a referendum is conducted as the result of a petition pursuant to Section 68133. In such case the referendum shall be every fifth year following the industry petitioned referendum.
Upon the finding of a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter shall be suspended. However, any suspension shall not become effective until the expiration of the current marketing season. The secretary shall, upon receipt of that recommendation, or may, after a public hearing to review a petition filed with the secretary requesting suspension, signed by 15 percent of the producers by number who produced not less than 15 percent of the volume in the immediately preceding season, cause a referendum to be conducted among the listed producers to determine if the operation and the operations of the commission shall be suspended, and shall establish a referendum period, which shall not be less than 10 or more than 60 days in duration. The secretary may prescribe any additional procedures that may be necessary to conduct a referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the referendum period. If at least 40 percent of the total number of producers from the list established by the secretary participate in the referendum, the secretary shall continue the operation of this chapter, if the secretary finds either one of the following:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of continuation, and the producers so voting marketed a majority or more of the total quantity of kiwifruit marketed in the preceding marketing season by all of the producers who voted in the referendum.
That a majority or more of the producers who voted in the referendum voted in favor of continuation, and that the producers so voting marketed 65 percent or more of the total quantity of kiwifruit marketed in the preceding season by all of the producers who voted in the referendum.
Should the referendum fail to meet the requirements of subdivision (a) or (b), the secretary shall suspend the operation of this chapter upon the expiration of the current marketing season.
After the effective date of suspension of the operation of the provisions of this chapter and of the commission, the operations of the commission shall be concluded and any and all moneys remaining held by the commission, collected by assessment and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding current marketing season. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to those persons, any such moneys remaining and any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid to the University of California to fund research projects relating to kiwifruit.
Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all producers and handlers affected by such suspension whose names and addresses are on file.
All moneys remaining held by the commission after the repeal of this chapter shall be disposed of in accordance with Section 68134.
ARTICLE 9. Quality Standards [68141. - 68144.]
The commission may recommend to the secretary the adoption of kiwifruit quality standards or engage in any other activity authorized pursuant to the California Marketing Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of Division 21). The adoption of standards or activities shall be in accordance with the procedures specified in that act unless otherwise specified in this article.
Any standards or activities recommended by the commission shall not become operative until approved in the manner specified in Section 68092.
Any standards or activities adopted pursuant to this article shall be implemented by the secretary at the beginning of the marketing season next succeeding the date on which they were approved by the secretary.
The commission shall serve as the advisory body to the secretary on all matters pertaining to this article.
CHAPTER 7. California Pistachio Commission [69001. - 69114.]
ARTICLE 1. Declaration and General Provisions [69001. - 69007.]
The pistachio industry in this state is expanding and has the potential to constitute one of California’s principal nut crops. The industry can provide an important source of employment for many people in the state, a high proportion of whom are from underprivileged and historically deprived segments of the population.
As an exotic nut crop developed in the Mideast, the pistachio is not heavily consumed in this country or abroad. Opportunity exists for continued growth and expansion of the industry, by creating new markets in such areas. The success of such an expansion program is uniquely dependent upon effective advertising and promotion both domestically and in foreign countries, since the creation of new markets is essentially a matter of educating people to the use of a previously unknown or unrecognized food.
The establishment of a California Pistachio Commission is necessary for the efficient development and management of a national and international advertising and promotion program, and essential to ensure that the California pistachio industry can compete successfully in the world marketplace and reduce the spread between consumer cost and the amount received by the producer.
The production and marketing of pistachios produced in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, marketing research, and production research.
No action taken by the commission, nor by any individual in accordance with this chapter or with rules and regulations adopted under the chapter, shall be deemed a violation of the Cartwright Act, the Unfair Practices Act, the Fair Trade Act, Section 1673 of the Civil Code, or any rule of statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
ARTICLE 2. Definitions [69011. - 69030.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Pistachio” means any variety of pistachio produced in the state, including any pistachios delivered to a processor for processing into any pistachio product.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to the provisions of this chapter.
“Commission” means the California Pistachio Commission.
“Commissioner” means any member of the commission.
“Distribute” means to engage in the business of a distributor.
“Secretary” means the Secretary of Food and Agriculture.
“Districts” shall consist of the following:
District 1 consists of Tulare, Kern, San Bernardino, San Luis Obispo, Santa Barbara, Ventura, Los Angeles, Orange, Riverside, San Diego, and Imperial Counties.
District 2 consists of Kings, Fresno, Madera, and Merced Counties.
District 3 consists of all counties where pistachios are produced that are not included in Districts 1 and 2.
The boundaries of any district may be changed by a two-thirds vote of the commission, which is concurred in by the secretary, to ensure proper representation by producers. The boundaries need not coincide with county lines.
“Ex officio member” shall be a nonvoting member of the commission.
“Processor” and “first handler” are synonymous and mean any person engaged, within this state, in the operation of hulling and drying pistachios that he or she has produced or purchased or acquired from a producer, or that he or she is hulling and drying on behalf of a producer, whether as owner, agent, employee, broker, or otherwise. “Processor” does not include, however, a retailer, except a retailer who purchases or acquires from, or hulls and dries on behalf of, any producer, pistachios that were not previously subject to regulation by the commission. When the processor is a corporation, all the directors and officers of the corporation in their capacity as individuals are included, and any liability for failure to collect or make payment of assessments to which a corporate processor may be subject pursuant to this chapter includes the same liability for each individual director or officer of the corporation.
“Marketing research” means any research relating to the sale of pistachios.
“Marketing season” or “fiscal year” means the period beginning September 1 of any year and extending through the last day of August of the following year.
“Process” means to engage in the business of a processor.
“Producer” or “grower” means any person who is engaged within this state in the business of producing, or causing to be produced for market, pistachios, and who, upon request, provides proof of commodity sale.
“Production research” means any research relating to the production of pistachios.
“Producer-supplier” means any producer who engages in the operation of selling, marketing, or distributing pistachios that he or she has produced, or has purchased or acquired from a processor. It does not, however, include a retailer, except a retailer who purchases or acquires from, or sells, markets, or distributes on behalf of any producer, pistachios that were not previously subject to regulation by the commission. When the producer-supplier is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failure to submit records pursuant to a requirement to which a corporate producer-supplier may be subject pursuant to this chapter shall include identical liability upon each individual director and officer of the corporation.
When the secretary is required to concur in a decision of the commission, the secretary shall indicate his or her response to the commission within 15 working days from notification of that decision. The response may be a request that additional information be provided.
ARTICLE 3. The California Pistachio Commission [69031. - 69045.]
There is in the state government the California Pistachio Commission. The commission shall be composed of eight pistachio producers and one public member. Producers within the respective districts shall elect four producers from District 1, three producers from District 2, and one producer from District 3.
The public member shall be appointed to the commission by the secretary from the nominees recommended by the commission.
The secretary and other appropriate individuals as determined by the commission shall be nonvoting ex officio members of the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or to be in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make corrections required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and the secretary may make recommendations that will make those activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities under this chapter. However, the court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to the action.
Each member of the commission, except the ex officio members, shall have an alternate member to be elected in the same manner as the member. An alternate member shall, in the absence of the member for whom he is alternate, serve in place of the member on the commission, and shall have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or the disqualification of a member, the alternate shall act as a member on the commission until a successor is elected and has qualified.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status making the member ineligible to serve, or due to death, removal, or resignation, shall be filled, for the unexpired portion of the term, by a majority vote of the commission. However, that person shall fulfill all the qualifications set forth in this article as required for the member whose office that person is to fill. The qualifications of any person to fill a vacancy on the commission shall be certified in writing to the secretary. The secretary shall notify the commission if the secretary determines that any such person is not qualified.
A producer member or his alternate on the commission shall be an individual, partner, or employee of a producer who has a financial interest in producing, or causing to be produced, pistachios for market. Not more than two such members shall be persons employed by, or connected in a proprietary capacity with, the same corporation, firm, partnership, association, or business organization and not more than one such member in any one district shall be so employed or connected. Qualification as a producer member must continue during the entire term of office.
The public member or his alternate on the commission, shall have all the powers, rights, and privileges of any other member on the commission. The public member shall not have any financial interest in the pistachio industry.
The term of office of all commissioners, except any ex officio member, shall be two years from the date of their election and until their successors are qualified; provided, however, that of the first members of the commission, one-half of the producers shall serve for one year, and one-half of the producers shall serve for two years, with the determination of term of each such member to be made by lot at the time of election. Terms of office of each commissioner shall be limited to four consecutive terms.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
The secretary or the secretary’s representatives shall be notified and may attend each meeting of the commission, and any committee meeting of the commission.
No commissioner or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each commissioner, except ex officio government members, and each member of a committee established by the commission who is a nonmember of the commission may receive a sum of not to exceed one hundred dollars ($100) per day, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission, together with the necessary traveling expenses and meal allowances, as approved by the commission.
All moneys received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission, shall be deposited in such banks as the commission may designate and shall be disbursed by order of the commission through such agent or agents as it may designate for that purpose. Any such agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business as such in the State of California, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. No member of the commission or alternate member, or any employee or agent thereof, is personally liable on the contracts of the commission and no commissioner, alternate member, or employee of the commission is responsible individually in any way to any producer, processor, producer-supplier, or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No commissioner or alternate member shall be held responsible individually for any act or omission of any member of the commission. The liability of the commissioners is several and not joint, and no commissioner is liable for the default of any other commissioner.
All proprietary information obtained by the commission or the secretary from producers, processors, or producer-suppliers shall be confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter. Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission or aggregate sales and inventory information, and any other information that the processors or producer-suppliers request from the commission to receive in total, excluding individual processor or producer-supplier information, may be disclosed by the commission.
ARTICLE 4. Powers and Duties of the Commission [69051. - 69051.]
To adopt and, from time to time, alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders for carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, or order of the commission. The adoption, alteration, rescission, modification, or amendment of any bylaw, rule, regulation, or order implementing the brand-credit advertising program authorized pursuant to subdivision (i) is subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
To administer and enforce this chapter, and to do and perform all acts and exercise all powers incidental to, or in connection with, or determined reasonably necessary for, the proper or advisable effectuation of the purposes of this chapter.
To appoint its own officers, including a chairperson, one or more vice chairpersons, and any other officers as it determines necessary. The officers have the powers and duties delegated to them by the commission.
To employ a manager to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, that are necessary to carry out this chapter. The commission may retain a management firm or the staff from any board, commission, or committee of the state to perform the functions prescribed by this subdivision under the control of the commission. If the manager engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the manager.
To fix the compensation for all employees of the commission.
To appoint committees composed of both members and nonmembers of the commission, such as a processor advisory committee, to advise the commission in carrying out this chapter.
To establish offices and incur expenses, invest funds in the permissible investments as specified in Section 58939, enter into any and all contracts and agreements, and create liabilities and borrow funds in advance of receipt of assessments as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
To keep accurate books, records, and accounts of all of its dealings, which books, records, and accounts shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. The audit shall be made a part of an annual report to all producers of pistachios, copies of which shall also be submitted to the Legislature and the department. In addition, the secretary may, as the secretary determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission. The Department of Finance may audit books, records, and accounts of the commission at any time.
To promote the sale of pistachios by advertising and other promotional means, including cost-sharing advertising of pistachios or other complementary products and brand-credit advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for pistachios, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of pistachios. Any decision to implement a brand-credit advertising program shall be ratified by a vote of producers conducted pursuant to Section 69062.
To require processors and producer-suppliers to provide records and other information necessary for the commission to carry out the purposes of this chapter, including, but not limited to, records and information regarding inventories, shipment destinations, and related information. Such records and information shall be preserved by the processor or producer-supplier for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
To educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling pistachios, make market surveys and analyses, and present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the marketing of pistachios.
To make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements as the commission may determine necessary for the promotion of the sale of pistachios.
To conduct and contract with others to conduct scientific research, including the study, analysis, dissemination, and accumulation of information obtained from the research or elsewhere, respecting cultural and production practices, and marketing and distribution of pistachios. In connection with the research, the commission may accept contributions of, or match, private, state, or federal funds that may be available for these purposes, and employ or make contributions of funds to other persons or state or federal agencies conducting the research.
To publish and distribute, without charge, a bulletin or other communication for dissemination of information relating to the pistachio industry to producers, processors, and producer-suppliers.
To establish an assessment rate to defray operating costs of the commission. Any assessment rate established pursuant to this chapter may be modified in accordance with Section 69081.
To establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to subdivision (e).
To submit to the secretary, for his or her concurrence, an annual statement of contemplated activities authorized under this chapter, including advertising, promotion, marketing research, and production research.
To administer any governmental program establishing quality standards for the pistachio industry upon request of an authorized agent of a governmental agency.
ARTICLE 5. Implementation and Voting Procedures [69061. - 69070.]
Within 90 days after January 1, 1981, the secretary shall establish a list of producers eligible to vote on implementation of this chapter. In establishing the list, the secretary shall require that processors, county agricultural commissioners, and pistachio producers submit the names, mailing addresses, and district numbers of all pistachio producers who produce merchantable pistachios. The request for the information shall be in writing. The list shall be filed within 30 days following receipt of the written notice.
Any producer of pistachios, whose name does not appear upon the secretary’s list of producers affected, may have his or her name established on the list by filing with the secretary a signed statement, identifying himself or herself as a producer. Failure to be on the list does not exempt the producer from paying assessments under this chapter.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum conducted by the secretary that at least 40 percent of the total number of producers from the list established by the secretary pursuant to Section 69061, participate, and either of the following:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed a majority of the total quantity of pistachios in the preceding season, or in the current season if the harvest and delivery of pistachios to processors is complete, as determined by the commission, by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the total quantity of pistachios in the preceding season, or in the current season if the harvest and delivery of pistachios to processors is complete, as determined by the commission, by all of the producers who voted in the referendum.
The secretary shall establish a period in which to conduct the referendum that shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 69062, the secretary shall certify and give notice of the favorable vote to all producers whose names and addresses may be on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in Section 69062, the secretary shall so certify and declare this chapter inoperative.
Upon certification of the commission, the secretary shall call meetings of producers in each district for the purpose of nominating and electing persons for appointment to the commission by the secretary. All producers on the secretary’s list shall be given written notice of the election meetings at least 15 days prior to the meeting date.
To be eligible for election to the commission, producer nominees shall present to the secretary a nomination petition with the signatures of at least six eligible persons, as specified in Section 69068.5, from the district from which the nominee is seeking election.
To be eligible to sign a nomination petition pursuant to Section 69068, a person shall meet either of the following qualifications:
Be a producer as provided in Section 69027.
Subsequent to the first election of commissioners under this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures that shall be established by the commission with the concurrence of the secretary.
Prior to the referendum vote conducted by the secretary pursuant to Section 69062, the proponents of the commission shall deposit with the secretary the amount that the secretary may deem necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any funds not used in carrying out Section 69062 shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out Section 69062, and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [69081. - 69088.]
The commission, not later than October 1 of each year, shall establish the assessment for the marketing season that begins September 1 and continues through August 31 of the following year, which shall not exceed 5 percent of the average price received by producers, computed on a per pound basis or computed in any other manner determined by the commission to be reasonably equivalent to the per pound computation. The commission may revise the assessment established prior to October 1 of each year if it determines, based on information including crop volume, that the action is necessary, and if the revision does not exceed the assessment limitations specified in this section and the modification is made prior to the date established by the commission for payment of the assessment.
The provisions of this chapter do not apply to pistachios produced only for the producer’s home use or where the pistachios are used only for ornamental purposes; provided, however, that such producer shall file an affidavit with the commission establishing that his pistachios are not produced for commercial purposes. In any event, no production of pistachios in excess of 1,000 dried pounds per year is exempt from the assessment under this article.
Every processor shall keep a complete and accurate record of all pistachios processed by him with the name of the producer whose pistachios were processed. Such records shall be in simple form and contain such information as the commission shall prescribe. Such records shall be preserved by the processor for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
Assessments shall be upon the producer. The first handler of pistachios being assessed shall deduct the assessment from amounts paid by him or her to the producer, or shall collect the assessment from the producer, and shall be a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission.
Every processor shall be personally liable for the payment of the collected assessments, and failure of the processor to collect the assessment from any producer shall not exempt any processor from such liability.
Any assessment which is levied as provided for in this chapter, is a personal debt of every producer so assessed. Failure of a processor to make payment of the collected assessment to the commission shall not relieve the producer of this obligation.
Any producer or processor who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be past due and, in addition, interest on the unpaid balance at the rate of 112 percent per month.
In addition to any other penalty imposed, the commission may require any person who fails to pay any assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount and for a period of time specified by the commission as assurance that all payments to the commission will be made when due.
ARTICLE 7. Actions and Penalties [69091. - 69093.]
It is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding five hundred dollars ($500), or by both such fine and imprisonment, for any person to do any of the following:
Willfully to render or furnish a false report, statement, or record required by the commission.
When engaged in the processing or marketing of pistachios or in the wholesale or retail trade of pistachios, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom he or she has received pistachios and the quantity so received, or any other report, statement, or record required by the commission.
Secrete, destroy, or alter records required to be kept under the provisions of this chapter.
The commission shall adopt procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for that purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance, respecting this chapter and the rules and regulations adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief. A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified by Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until there is full compliance with and satisfaction of the judgment. Notwithstanding Section 69033.5, upon a favorable judgment for the commission, it may receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
ARTICLE 8. Continuation or Suspension and Termination [69101. - 69105.]
Between September 1, 1985, and August 31, 1986, the commission shall cause a referendum to be conducted among producers in the manner prescribed in Section 69062 to determine whether the operations of this chapter shall be reapproved and continued in effect. If the secretary finds that a favorable vote has been given, the secretary shall so certify and this chapter shall remain effective. If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the marketing season ending August 31, 1986. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 69104. No bond or security shall be required for any such referendum.
Following a favorable referendum conducted prior to August 31, 1986, a referendum shall be conducted by the commission every fifth year thereafter between October 1st and January 31st, following procedures provided by this section, unless a referendum is conducted as the result of a petition pursuant to Section 69103. In such case the referendum shall be every fifth year following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing season. The secretary shall, upon receipt of that recommendation, or may, after a public hearing to review a petition filed with the secretary requesting suspension, signed by 15 percent of the producers by number who produced not less than 15 percent of the volume in the immediately preceding season, cause a referendum to be conducted among the listed producers to determine if the operation and the operations of the commission shall be suspended. The secretary shall establish a referendum period, that shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures necessary to conduct a referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the referendum period. If at least 40 percent of the total number of producers from the list established by the secretary participate in the referendum, the secretary shall continue the operation of this chapter, if the secretary finds either one of the following:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of continuation of this chapter, and the producers so voting marketed a majority or more of the total quantity of pistachios marketed in the preceding marketing season by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of continuation of this chapter, and that the producers so voting marketed 65 percent or more of the total quantity of pistachios marketed in the preceding season by all of the producers who voted in the referendum.
After the effective date of suspension of the operation of the provisions of this chapter and of the commission, the operations of the commission shall be concluded and any and all moneys remaining held by the commission, collected by assessment and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding current marketing season; provided further, however, that if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of such pro rata refund to such persons, any such moneys remaining and any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into the State Treasury as unclaimed trust moneys.
Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all producers affected by the suspension whose names and addresses are on file.
ARTICLE 9. Marketing Order Involvement [69111. - 69114.]
The commission may recommend to the secretary that he or she adopt pistachio quality standards, product labeling, or engage in any other activity authorized pursuant to the California Marketing Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of Division 21). The adoption of standards or any of these activities shall be in accordance with the procedures specified in that act unless otherwise specified in this article.
Any activity recommended by the commission shall not become operative until approved in the manner specified in Section 69062.
Any activity adopted pursuant to this article shall be implemented by the secretary at the beginning of the marketing season next succeeding the date on which the activity is approved by the secretary.
The commission shall serve as the advisory body to the secretary on all matters pertaining to this article.
CHAPTER 9. Cling Peaches [70000. - 70001.]
The director may enter into an agreement with one or more organizations representing growers and manufacturers of cling peaches whereby research will be conducted by public or private agencies to determine methods of increasing the natural fructose content in cling peaches.
The agreement shall specify that the state will provide 50 percent of the funds necessary for the research and the other parties to the agreement will provide the remaining 50 percent.
State funds shall be available for expenditure for the purposes of this chapter upon appropriation therefor by the Budget Act or other statute.
CHAPTER 9.5. California Rice Commission [71000. - 71138.]
ARTICLE 1. Declaration and General Provisions [71000. - 71010.]
The production, milling and marketing of rice constitutes an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
The maintenance of the rice industry of California is necessary to assure the public of a continuous supply of this vital product and the maintenance of needed levels of income for those engaged in the rice industry.
The production and milling of rice in California has the potential to be one of the leading segments of the state’s agricultural industry. To realize this potential, there is a need to make consumers aware of the nutritional value of rice, the high quality of the rice produced and milled in the state, the intricacies of rice culture, and the versatility of rice as part of a well-balanced diet. The activities made possible by the establishment of the commission will meet this need and further the interests of the industry and the state.
The establishment of the commission is necessary for the efficient development and management of a national and international advertising and promotion program that will enhance the reputation of the California rice industry, create a more receptive environment for the industry and its products, and increase competitiveness of the California rice industry within the national and international marketplace. In addition, the commission is necessary to carry out the California rice industry’s commitment to responsible stewardship and increasingly efficient cultural practices.
The successes that the rice industry of California has enjoyed have come in part through a commitment to industry funded research that has led to significant improvements in the quality of the rice available to consumers and increasingly efficient cultural practices resulting in increased awareness of, and a more receptive environment for, the production and milling of rice in California. It has also led to rice being a better consumer value. The establishment of the commission will continue and enhance this research effort and move the rice industry toward its potential, resulting in increased consumer value and enhanced grower returns.
The production and milling of rice in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, or by any individual in accordance with this chapter or with the regulations adopted under this chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade. The Legislature intends this program to be among those contemplated by Congress in the enactment of Section 610(i) of Title 7 of the United States Code.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that commission members and alternates are intended to represent and further the interest of a particular industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to and constitutes the public generally within the meaning of Section 87103 of the Government Code.
Opportunity exists for continued growth and expansion of the rice industry by creating new markets. The success of such an expansion program is uniquely dependent upon effective advertising, promotion, and research, since the creation of new markets is essentially a matter of educating and informing people of the use, nutritional value, and availability of the commodity and enhancing the reputation of the California rice industry. The expansion of the rice industry also provides an important source of jobs for many people in this state, a high proportion of whom reside in historically depressed areas of the state, and serves to ensure the preservation of an agrarian society.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production and milling of rice the opportunity to avail themselves of the benefits of collective action of the broad fields of development, maintenance, and expansion of markets, marketing research, education, advertising and promotion, and production and processing research necessary to achieve the purposes stated herein, and any activity authorized in Chapter 4 (commencing with Section 55000) of Division 20.
ARTICLE 2. Definitions [71020. - 71037.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Rice Commission.
“Districts” consist of the following:
District 1 consists of Butte County.
District 2 consists of Colusa County.
District 3 consists of Glenn County and Tehama County, and any county north of those counties where rice is produced.
District 4 consists of Yuba and Sutter Counties.
District 5 consists of Sacramento, San Joaquin, Placer, and Yolo Counties and any county south of those counties where rice is produced.
The commission, upon a two-thirds vote of the membership of the commission, may change the districts.
“Ex officio member” means a nonvoting member of the commission.
“Handle” means to engage in the business of being a handler. It does not include the drying of rice.
“Handler” means any person who is engaged in this state in the business of marketing rice who handles 100,000 hundredweight or more of rough or “paddy” rice, or the equivalent amount of milled rice during a marketing season. It is the Legislature’s intent that this provision be construed so that every person engaged in the handling of 100,000 hundredweight or more of rice produced in California is subject to assessment pursuant to this chapter.
“Hundredweight” or “Cwt.” are synonymous and mean 100 pounds avoirdupois, excluding tare.
“Market” or “marketing” means to sell rice to a person other than a handler.
“Marketing research” means any research relating to the sale of rice.
“Marketing season” or “fiscal year” are synonymous terms and mean the period beginning September 1 of any year and extending through the last day of August of the following year.
“Person” means any individual, partnership, limited liability partnership, corporation, limited liability company, firm, company, or other entity doing business in California.
“Producer” means any person who produces, or causes to be produced, rice.
“Production research” means any research relating to the production, harvest, and postharvest handling of rice.
“Public member” means the person appointed by the commission pursuant to Section 71050. The public member and his or her alternate shall not have any financial interest in the production or handling of rice.
“Rice” means all rough or “paddy” rice or milled rice (Oryza sativa L.) from any source handled within the state of California, including mochi rice (sweet rice). It does not include rice produced for seed or wild rice (Zinzania aquatica; Zinzania palustris).
“Secretary” means the Secretary of Food and Agriculture.
“Sell” means to transfer or cause the transfer of title to rice for valuable consideration.
ARTICLE 3. California Rice Commission [71050. - 71066.]
There is in the state government the California Rice Commission. The commission is composed of equal numbers of handler members and producer members as set forth in this section and Section 71050.5. In addition, there may be one public member.
Each eligible handler may appoint one member and one alternate member annually.
Producer members and alternate members in a number equal to the number of appointed handler members shall be elected by district.
The number of producers to be elected from each district shall be determined as follows:
Each district shall have at least one representative.
Except as provided in Section 71050.5, the allocation of any seats remaining after the allocation in paragraph (1) shall be made by dividing the total number of acres in the state planted in rice in the marketing season immediately preceding the determination by the total number of eligible handler members and dividing the acreage planted in rice in each district, starting with the district having the largest acreage planted in rice by the result and rounding to the nearest whole number.
No handler who is more than 90 days delinquent in the payment of assessments or filing of reports required pursuant to this chapter is eligible to serve on the commission. If a handler is made ineligible to serve pursuant to this subdivision, the member representing District 1 who received the lowest vote total among members representing District 1 is also ineligible to serve by operation of law in order to maintain an equal number of eligible handler and producer members. Additional members are ineligible to serve by operation of law as needed in order to maintain an equal number of handler and producer members and shall be selected from the remaining districts in ascending order of the number of the district. No member who is the sole representative of a district is ineligible to serve as a result of the operation of this subdivision. Without regard to whether any ineligible producer member representing a district has been reinstated, no subsequent producer member is ineligible to serve by operation of law from any district until at least one member is ineligible to serve by operation of law from each district except those that have only one representative.
Members who are ineligible to serve by operation of law pursuant to subdivision (e) shall be immediately disqualified from voting on matters before the commission.
The eligibility of handler and producer members shall be reinstated at the first meeting after the handler’s payments and reports are made current.
The commission shall annually establish the number of eligible handler members of the commission based on the volume of rice handled in the immediately preceding marketing season, and, if necessary, adjust and reallocate the number of producer members. Any additional producer members shall be elected at the next regularly scheduled election of producer members. Any handler who does not appoint a member and alternate within 15 days of being notified of their eligibility shall be deemed to have waived their right to a seat for the then current marketing season and shall not be counted in the calculation of producer seats.
The public member, if any, shall be appointed to the commission by the secretary from the nominees recommended by the commission.
Before the beginning of each marketing season, the commission may review drought conditions in the state and evaluate the impact of these conditions on the production and handling of rice. If the commission determines that the drought conditions had a detrimental impact upon the production and handling of rice, the commission may issue a declaration that requires the following provisions to be operative for the next marketing season:
A person shall be eligible to serve on the commission as a producer member or alternate producer member if either or both of the following conditions are met:
The person received an indemnity payment from the prevented planting program in the same calendar year that the declaration is issued or in one or more of the four calendar years before the issuance of the declaration and is not ineligible to serve pursuant to subdivision (e) of Section 71050.
A person described in clause (ii) of subparagraph (A) shall not be eligible to serve on the commission pursuant to this paragraph if the person voluntarily sells or transfers water during the marketing season, that sale or transfer of water lasts for a period of time longer than one year, and that sale or transfer of water results in the person not producing rice on any portion of the field acreage under the control of that person that is not eligible for the prevented planting program.
A person shall be eligible to serve on the commission as a handler member or alternate handler member if either or both of the following conditions are met:
The person has met the eligibility requirements set forth in Sections 71026 and 71058 in the same calendar year that the declaration is issued or in one or more of the four calendar years before the issuance of the declaration and is not ineligible to serve pursuant to subdivision (e) of Section 71050.
For purposes of the calculation set forth in paragraph (2) of subdivision (d) of Section 71050, the “total number of acres in the state planted in rice” and the “acreage planted in rice in each district” shall include both of the following:
The total number of acres planted in rice in the state or district, as applicable, in the immediately preceding marketing season.
The total number of prevented planted acres of rice in the state or district, as applicable, in the immediately preceding marketing season.
Notwithstanding subdivision (a), for the 2022–23 marketing season, the commission may undertake the duties specified in subdivision (a) as soon as possible after the effective date of this section. If the commission issues the declaration for the 2022–23 marketing season, the provisions set forth in paragraphs (1) to (3), inclusive, of subdivision (a) shall be operative for the 2022–23 marketing season immediately upon the issuance of the declaration.
For purposes of this section, the following definitions apply:
“Prevented planted acre” means an acre of land that was not planted in rice for which a person received an indemnity payment as part of the prevented planting coverage program.
“Prevented planting program” means the prevented planting coverage provisions administered by the Risk Management Agency within the United States Department of Agriculture Risk Management Agency pursuant to the Federal Crop Insurance Act (Subchapter I (commencing with Section 1501) of Chapter 36 of Title 7 of the United States Code).
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from notification of the decision. The secretary shall set forth in writing with specificity the reasons for any refusal to concur. The secretary’s response may be a requirement that additional information be provided.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Except for ex officio members, an alternate for each member shall be appointed in the same manner as the member. An alternate shall, in the absence of the member for whom he or she is an alternate, serve in place of the member and shall have, and be able to exercise, all the rights, privileges, and powers of the member when serving on the commission. In the event of a change in status making a member ineligible to serve, or due to death, removal, resignation, or disqualification of a member, the alternate shall act as a member of the commission until a qualified successor is appointed. The ineligibility of any member pursuant to Section 71050 does not create an absence within the meaning of this section.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy. The ineligibility of any handler member and concurrent ineligibility of any producer member pursuant to Section 71050 shall not create a vacancy within the meaning of this section.
Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, resignation, or disqualification, may be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
Any producer member and his or her alternate on the commission shall be an individual producer or an employee or representative of a producer who has a financial interest in producing rice or causing rice to be produced. The qualifications of producer members and their alternates shall be maintained during their entire term of office. The absence of both the member and alternate at two consecutive meetings shall be grounds for the commission to declare the seat vacant.
Any handler member and his or her alternate on the commission shall be an individual handler or an employee or representative of a handler who has a financial interest in handling rice. The qualifications of handler members and their alternates shall be maintained during their entire term of office. The absence of both the member and alternate at two consecutive meetings shall be grounds for the commission to declare the seat vacant.
Except as otherwise provided in this section, the public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have a vote on issues regarding the assessments established pursuant to Section 71120.
Producer members shall serve three-year terms and until their successors are qualified, except, that of the first producer members of the commission one-third shall serve one year, one-third shall serve two years, and one-third shall serve three years. The determination of the term of each member shall be made by lot. Members representing the same district shall draw lots among themselves to ensure that terms within a single district are not concurrent.
The commission shall be, and is hereby declared and created, a corporate body. It may sue and be sued regarding any matter related to the purposes of this chapter, contract and be contracted with, and has and possesses all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements therein.
A majority of the membership of the commission appointed or elected shall constitute a quorum of the commission. The vote of a majority of the members present at a meeting at which there is a quorum constitutes the act of the commission. The commission may continue to transact business at a meeting at which a quorum is initially present, notwithstanding the withdrawal of members, provided any action is approved by the requisite majority of the required quorum.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
No member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.
All funds received by any person from the assessments levied under this chapter or otherwise received by the commission shall be deposited in banks that the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member or alternate of the commission, or any employee or agent thereof, is personally liable for the contracts of the commission. No member or alternate of the commission, or any employee or agent thereof, is responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or alternate of the commission, or any employee or agent thereof, is responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. No member or alternate of the commission, or any employee or agent thereof, is liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
ARTICLE 4. Powers and Duties [71070. - 71091.]
The powers and duties of the commission shall include, but are not limited to, all of those contained in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote, maintain, and enhance the rice industry.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may retain a management firm or the staff from any board, commission, or committee of the state or federal government to perform the functions prescribed by this section under the direction of the commission.
If requested by an advisory board, board of directors, or any authorized agent, the commission may administer any governmental program related to the rice industry.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, develop, own, and control the use of any intellectual property, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary, as he or she determines necessary, may conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may present facts to, and negotiate with, local, state, federal, and foreign agencies on matters that affect the rice industry.
The commission may promote the sale of rice by advertising and any other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for rice, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of rice.
The commission may educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling rice, and conduct consumer surveys and analyses.
The commission may conduct, and contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, respecting cultural, production and postharvest practices, and the marketing and distribution of rice. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
The commission may contract to receive and render services in formulating and conducting plans and programs and enter into other contracts or agreements that the commission deems necessary to carry out this chapter.
The commission may accept contributions of, or match private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies for purposes of promoting, enhancing, and maintaining the rice industry.
The commission may collect information, including, but not limited to, industry crop statistics, and publish and distribute without charge, a bulletin or other communication to handlers and producers of rice.
The commission shall establish an assessment rate to defray operating costs of the commission.
The commission shall establish an annual budget according to generally accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to Section 71075.
The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
The commission and the secretary shall keep confidential and shall not disclose, except when required by court order after a hearing in a judicial proceeding, all lists in their possession of persons subject to this chapter. However, the commission shall establish procedures to provide access to communication with other producers and handlers regarding noncommercial matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the list of the names and addresses of producers and handlers in the possession of the commission or the secretary. In addition, notwithstanding any other provision of law, all proprietary or trade secret information developed or gathered pursuant to this chapter, including, but not limited to, names and addresses of handlers, producers, processors, wholesalers, retailers, brokers, and shippers, individual quantities produced, handled, shipped, bought or sold, prices paid, and the products of research obtained by the commission, or by the department on behalf of the commission, from any source is confidential and shall not be considered a public record as that term is defined in Section 7920.530 of the Government Code.
Upon receipt of a request for information from a person establishing cause for the request, the department shall direct the commission to provide the requesting person any record in the commission’s possession, except that any proprietary information shall be removed before disclosure.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The commission may appoint any person to serve as an ex officio member.
ARTICLE 5. Implementation and Voting Procedures [71100. - 71107.]
Within 15 days of a request from any handler or producer, the secretary shall establish a list of handlers and producers eligible to vote on implementation of this chapter. The secretary may require handlers and producers to submit the names and mailing addresses of all producers and handlers. The secretary also may require that the information provided include information on the volume of rice handled by each handler, or produced by each producer or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 71101. The request for the information shall be in writing and shall be filed within 10 days following receipt of the request.
Any handler or producer eligible to vote whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement, identifying himself or herself as a person eligible to vote. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
Any handler or producer eligible to vote may contact those on the list regarding the referendum in a form and manner prescribed by the secretary if all expenses associated with those contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds the following in a referendum vote conducted by the secretary:
At least 40 percent of the total number of handlers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled a majority of the total quantity of rice handled in the preceding marketing season by all of the handlers voting in the referendum.
A majority of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled 65 percent or more of the total quantity of rice handled in the preceding marketing season by all of the handlers voting in the referendum.
At least 40 percent of the total number of producers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the producers voting in the referendum voted in favor of this chapter, and the producers so voting produced a majority of the total quantity of rice produced in the preceding marketing season by all of the producers voting in the referendum.
A majority of the producers voting in the referendum voted in favor of this chapter, and the producers so voting produced 65 percent or more of the total quantity of rice produced by all of the producers voting in the referendum.
The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot by an eligible handler or producer shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 71101, the secretary shall certify and give notice of the favorable vote to all affected handlers and producers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in Section 71101, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct other implementation referendum votes one year or more after the previous vote has been taken.
Upon certification of the commission, the secretary shall terminate, effective at the end of the marketing season then current, consistent with the terms of the marketing order and Section 59088, any entity operating pursuant to an existing state marketing order affecting the same subject matter as this chapter. Notwithstanding the terms of the marketing order, or any provision of Chapter 1 (commencing with Section 58601) of Part 2 of Division 21, the secretary shall immediately upon certification of the commission, order the transfer of the marketing order’s assets to the commission, except for those assets necessary to the proper winding up of the marketing orders affairs. This section shall not affect the continued operation of any existing rice research marketing order directly affecting producers of rice.
Prior to the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any funds not used in carrying out Section 71101 shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [71120. - 71138.]
The commission shall establish the assessment for the marketing season not later than September 1 of each year or as soon thereafter as is possible. The assessment shall not exceed ten cents ($0.10) per hundredweight for rice delivered to handlers by producers. Of the assessment, not more than five cents ($0.05) per hundredweight shall be assessed against handlers, and not more than five cents ($0.05) per hundredweight shall be assessed against producers. The assessment rate shall be the same for handlers and producers.
An assessment greater than the amount specified in subdivision (a) may not be charged unless approved by a majority of the commission and by handlers and producers pursuant to procedures specified in Section 71101.
This chapter does not apply to handlers of less than 100,000 hundredweight in any marketing season or to rice produced only for a producer’s home use or rice that is used only for ornamental purposes.
If at any time during a marketing season the volume handled by a handler reaches 100,000 hundredweight or more, the handler shall be assessed for the initial 100,000 hundredweight and any additional volume handled during the marketing season. If the assessments on the initial 100,000 hundredweight are paid in the time and manner specified by the commission, the assessments shall not be considered past due.
Notwithstanding Section 71026, the 100,000 hundredweight threshold established pursuant to this chapter shall remain in effect unless a higher threshold is approved by a majority of the commission and by those handlers remaining eligible under the proposed threshold and producers pursuant to procedures specified in Section 71101.
Any person requesting an exemption from this chapter shall file an affidavit with the commission attesting that he or she is not a handler, as defined in Section 71026, or produces rice only for his or her own home use or for ornamental purposes. The affidavit shall contain all the information required by the commission. The commission shall review the affidavit, conduct any additional investigation it deems appropriate, and approve or deny the affidavit.
Every person who handles rice in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of rice and shall submit the record to the commission in the time and manner specified by the commission. The records shall be in a simple form and contain the information that the commission prescribes. The records shall be preserved by the handler for a period of three years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained or developed pursuant to this article by the commission or the secretary from any source, including, but not limited to, the names and addresses of producers, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission.
Any assessment that is levied as provided for in this chapter is a personal debt of every person assessed.
Only the first handler of rice is subject to the handler assessment and shall deduct the producer assessment from amounts paid by him or her to the producer and shall be a trustee of these assessments and assessments required to be paid by the handler until they are paid to the commission at the time and in the manner prescribed by the commission. Title to the assessments shall pass immediately to the commission and handlers shall hold the assessments in trust for the benefit of the commission and shall remit them, with assessment reports, in the time and manner specified by the commission. All first handlers, without regard to the volume handled, shall deduct and remit the producer assessment. Failure to collect the assessment from any producer shall not exempt the handler from liability. In addition, failure of a handler to remit the collected producer assessments to the commission shall not relieve the producer of this obligation.
If rice is forfeited under a loan from the Commodity Credit Corporation, the handler shall pay both the producer and handler assessments if the rice is contracted to the handler. If the handler’s total volume for the marketing season is less than 100,000 hundredweight, only the producer assessment shall apply. If the rice forfeited under a loan from the Commodity Credit Corporation is not contracted to a handler, the producer shall pay both the handler and producer assessments. If the total volume handled by the producer during the marketing season is less than 100,000 hundredweight, only the producer assessment shall apply.
When the handler or producer is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including, but not limited to, failing to pay assessments or file required reports, shall also include identical liability upon each director or officer of the corporation.
Any person who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 112 percent interest per month on the unpaid balance.
In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
It is a violation of state law for any person to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission.
Fail to render or furnish a report, statement, or record required by the commission.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding rice until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any violation of this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
Every five years, commencing with the fifth marketing season following the certification pursuant to Section 71104, the secretary shall conduct a referendum among handlers and producers. The operations of the commission shall continue unless the secretary determines from the referendum that a majority of the eligible handlers and a majority of the eligible producers voting in the referendum voted in favor of terminating the operations of this chapter.
Notwithstanding paragraph (1), if the commission issues a declaration pursuant to Section 71050.5 and that declaration is in effect at the time that the secretary conducts a referendum pursuant to this section, a person shall be eligible to vote in the referendum conducted pursuant to this section if either of the following apply:
The person is a producer or handler.
The person is eligible to serve on the commission as a producer or handler member pursuant to clause (ii) of subparagraph (A) of paragraph (1) of, or subparagraph (B) of paragraph (2) of, subdivision (a) of Section 71050.5.
If the secretary finds that the vote favors continuation, the secretary shall so certify and this chapter shall remain operative. If the secretary finds that the vote favors termination, the secretary shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the then current marketing season. Thereupon, the operations of the commission shall be concluded and funds distributed as provided in Section 71137.
Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the then current marketing season.
Upon the vote of the members of the commission specified in subdivision (a), the secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of this chapter if he or she finds any of the following has occurred:
Sixty-five percent or more of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled a majority of the total quantity of rice handled in the preceding marketing season by all of the handlers voting in the referendum.
A majority of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled 65 percent or more of the total quantity of rice handled in the preceding marketing season by all of the handlers voting in the referendum.
Sixty-five percent or more of the producers who voted in the referendum voted in favor of suspension, and the producers so voting produced a majority of the total quantity of rice produced in the preceding marketing season by all of the producers voting in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting produced 65 percent or more of the total quantity of rice produced in the preceding marketing season by all of the producers voting in the referendum.
After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the prorated refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter. Upon suspension, any intellectual property owned by the commission shall be transferred without charge to the secretary who shall hold the property in trust for the benefit of the California rice industry. The property shall be transferred without charge to any successor program serving purposes similar to the purposes of this chapter.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all eligible persons affected by the suspension whose names and addresses are on file.
CHAPTER 10. California Wheat Commission [72001. - 72135.]
ARTICLE 1. Declaration and General Provisions [72001. - 72008.]
The wheat industry in this state is expanding rapidly. It provides over three hundred fifty million dollars ($350,000,000) in farm income annually, increased by almost 20 percent in 1981, and is expected to show continued growth in the future. It is one of California’s five biggest agricultural exports. In total production, the state is among the top 10 states nationwide. The industry is a major employer of agricultural labor and is also a source of employment in the transportation, warehousing, and shipping industries.
Opportunity exists for continued expansion, particularly if the industry can develop better varieties more suited to the California climate and the needs of the marketplace. The unique qualities of California wheat need to be promoted to foreign buyers, who purchase most of the wheat grown in this state. Opportunity also exists for increasing sales to domestic customers.
The establishment of a California Wheat Commission is necessary for the efficient development and management of an international sales promotion program, and is essential to ensure that the California wheat industry can compete successfully in the marketplace.
A commission is also necessary to conduct research into the development of varieties more suitable to the export trade, as well as more productive under California growing conditions.
A California Wheat Commission would also be the means for California producers to take a more active role in national wheat organizations and wheat policymaking bodies. Producers in this state lack effective input at the national level, while producers in all other major wheat-growing states have this advantage through their own state commissions.
The production and marketing of wheat produced in this state is hereby declared to be affected with public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, marketing research, and production research.
No action taken by the commission, nor by any individual in accordance with this chapter or with rules or regulations adopted under the chapter, shall be deemed a violation of the Cartwright Act, the Unfair Practices Act, the Fair Trade Act, or any rule of statutory or common law against monopolies or combinations in restraint of trade.
ARTICLE 2. Definitions [72021. - 72034.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Wheat” means any variety of wheat produced in this state.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to the provisions of this chapter.
“Commission” means the California Wheat Commission.
“Commissioner” means any member of the commission.
“Director” means the Director of Food and Agriculture.
“Districts” shall consist of the following:
District 1 consists of Siskiyou, Tehama, Lassen, Modoc, and Shasta Counties.
District 2 consists of Butte, Colusa, Glenn, and Lake Counties.
District 3 consists of Napa, Sonoma, Yolo, Amador, El Dorado, Placer, Yuba, Nevada, Sutter, and Sierra Counties and that portion of Sacramento County lying north of Road J-11 and east of the Sacramento River from Walnut Grove to Courtland.
District 4 consists of Solano County and that portion of Sacramento County not included in District 3.
District 5 consists of Alameda, Contra Costa, Stanislaus, and San Joaquin Counties.
District 6 consists of Merced and Madera Counties.
District 7 consists of Fresno County.
District 8 consists of Kings and Tulare Counties.
District 9 consists of Kern County.
District 10 consists of Santa Barbara, San Luis Obispo, Monterey, and San Benito Counties.
District 11 consists of San Bernardino, Riverside, San Diego, Los Angeles and Ventura Counties.
District 12 consists of that part of Imperial County lying north of Keystone Road.
District 13 consists of that part of Imperial County lying south of Keystone Road.
The number of districts and boundaries of any district may be changed by a two-thirds vote of the commission, as long as proper notice is provided to all persons subject to this chapter and the action of the commission is concurred in by the secretary, to ensure proper representation by producers. These boundaries need not coincide with county lines.
“Ex officio member” shall be a nonvoting member of the commission.
“Handle” means to engage in the business of a handler as defined in Section 72030.
“Handler” means any person who engages in the operation of selling, marketing, or distributing wheat which he or she has produced, purchased, or acquired from a producer, or which he or she is marketing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise. When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failure to collect or make payments or assessments of which a corporate handler may be subject pursuant to this chapter shall include identical liability upon each individual director or officer of the corporation.
“Handler” also means any lienholder, secured party or pledgee that is a public agency, public or private, or assignee of a lienholder, secured party or pledgee that is a public agency, who is authorized to gain title to the wheat from the producer through the exercise of specified legal rights, including, but not limited to, a federal nonrecourse loan.
“Marketing research” means any research relating to the sale of wheat.
“Marketing season” or “fiscal year” means the period beginning May 1 of any year and extending through April 30 of the following year.
“Producer” or “grower” means any person who is engaged, within this state, in the business of producing wheat for market during any of the preceding three marketing seasons, and who shall, upon request, provide proof of commodity sale.
“Production research” means any research related to the production and processing of wheat, other than marketing research.
ARTICLE 3. The California Wheat Commission [72051. - 72065.]
There is in the state government the California Wheat Commission. The commission shall be composed of 13 members who are wheat producers and who are not handlers, two members who are handlers, two at-large members, and one public member. The producers, one from each district, shall be elected by and from producers within the respective districts. The two handler members shall be elected by and from handlers doing business within the state.
The at-large members and the public member shall be appointed to the commission by the secretary from the nominees recommended by the commission. Each at-large member shall be a person with knowledge, expertise, and interest in wheat production, handling, research, or any other attribute or attributes that are deemed by the secretary to be of value to the purpose of the commission.
The secretary and other appropriate individuals as determined by the commission shall be nonvoting ex officio members of the commission.
The director may require the commission to correct or cease any existing activity or function which is determined by the director not to be in the public interest or is in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make such corrections as required by the director, the director may, upon written notice, suspend all or a portion of the activities of the commission until that time that the cessation or correction of activities or functions as required by the director has been accomplished by the commission.
Actions of the commission in violation of that written notice shall be without legal force or effect.
The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
Upon service of the written notice, the director shall notify the commission, in writing, of the specific acts which he determines are not in the public interest or are in violation of this chapter and his reasons for requiring a cessation or correction of specific activities or functions, and may make recommendations that will make the activities or functions acceptable to the director.
When the director is required to determine whether or not to concur with a decision of the commission, he shall indicate his response to the commission within 15 working days after notification of the decision. The response may be a request that additional information be provided.
The commission or the director may bring an action for judicial relief from the director’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his duties and responsibilities under this chapter. However, the court may, if it finds that the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to that action.
Each member of the commission, except the ex officio members, shall have an alternate member, to be elected in the same manner as the member. An alternate member shall, in the absence of the member for whom he is alternate, serve in place of the member on the commission, and may exercise, all the rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or the disqualification of a member, the alternate shall act as a member on the commission until a successor is qualified and elected.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or alternate member to continue in his position due to a change in status making him ineligible to serve, or due to death, removal, disqualification, or resignation, shall be filled, for the unexpired portion of the term, by a majority vote of the commission. However, the person shall fulfill all the qualifications set forth in this article as required for the member whose office he is to fill. Qualifications of any person to fill a vacancy on the commission shall be certified, in writing, to the director. The director shall notify the commission if he or she determines that any such person is not qualified.
A producer member and his or her alternate on the commission shall be an individual, partner, or employee of a producer who has a financial interest in producing, or causing to be produced, wheat for market. Not more than two such members shall be persons employed by, or connected in a proprietary capacity with, the same corporation, firm, partnership, association, or business organization and not more than one member in any one district shall be so employed or connected. Qualification as a producer member shall continue during the entire term of office.
A handler member and his or her alternate on the commission shall be an individual, or a partner or employee of a handler, who has a financial interest in handling wheat for market.
The public member or his alternate on the commission, shall have all the powers, rights, and privileges of any other member on the commission. The public member shall not have any financial interest in the wheat industry.
The term of office of all commissioners, except any ex officio member, shall be for three years from the date of their election and until their successors are qualified and elected. However, of the first producer members of the commission, five shall serve for one year, five shall serve for two years, and five shall serve for three years, with the determination of term of each member to be made by lot at the time of election. Terms of office of each commissioner shall be limited to four consecutive terms, except that any member selected to serve a one-year term or a two-year term may serve one additional three-year term.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
The director or his representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission.
No commissioner or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each commissioner, except the ex officio member, and each member of a committee established by the commission who is a nonmember of the commission may receive a sum of not to exceed one hundred dollars ($100) per day, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission, together with the necessary traveling expenses and meal allowances, as approved by the commission.
All moneys received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission, shall be deposited in such banks as the commission may designate and shall be disbursed by order of the commission through such agent or agents as it may designate for that purpose. Any agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business as such in the State of California, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The commission shall defend any of its members against any claims made or actions taken against any commission members on matters in which the members acted on behalf of the commission.
The state shall not be liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. No member of the commission or alternate member, or any employee or agent thereof, shall be personally liable on the contracts of the commission nor shall a commissioner, alternate member, or employee of the commission be responsible individually in any way to any producer, handler, or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his own individual acts of dishonesty or crime. No commissioner or alternate member shall be held responsible individually for any act or omission of any member of the commission. The liability of the commissioners shall be several and not joint, and no commissioner shall be liable for the default of any other commissioner.
ARTICLE 4. Powers and Duties of the Commission [72081. - 72081.]
The powers and duties of the commission shall include, but are not limited to, all of the following:
To adopt, and from time to time, alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders for carrying out the provisions of this chapter, including rules for regulation of appeals from any bylaw, rule, regulation, or order of the commission.
To administer and enforce this chapter, and to do and perform all acts and exercise all powers incidental to, or in connection with or deemed reasonably necessary for, proper or advisable effectuation of the purposes of this chapter.
To appoint its own officers, including a chairman, one or more vice chairmen, and such other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
To employ a person to serve, at the pleasure of the commission, as chief executive officer of the commission and other personnel, including legal counsel, that is necessary to carry out the provisions of this chapter. The commission may retain a management firm or any staff from any board, commission, or committee of the state to perform the functions prescribed by this subdivision under the control of the commission. If the chief executive officer engages in any conduct which the director determines is not in the public interest or which is in violation of this chapter, the director shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. In the event that the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the chief executive officer.
To fix the compensation for all employees of the commission.
To appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out the provisions of this chapter.
To establish offices and incur expenses, and to enter into any and all contracts and agreements, and to create such liabilities and borrow such funds in advance of receipt of assessments as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
To keep accurate books, records and accounts of all of its dealings, which books, records and accounts shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the director. The audit shall be made a part of an annual report to all producers and handlers of wheat, copies of which shall also be submitted to the Legislature and the Department of Food and Agriculture. In addition, the director may, as he determines necessary, conduct, or cause to be conducted, a fiscal and compliance audit of the commission.
To promote the sale of wheat by advertising and other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for wheat and to educate and instruct the public with respect to the uses of the several varieties and the healthful properties and nutritional value of wheat.
To appoint an advisory committee composed of handlers to aid the commission in its deliberations.
To make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and such other contracts or agreements as the commission may deem necessary for the promotion of the sale of wheat.
To conduct and contract with others to conduct scientific research, including the study, analysis, dissemination, and accumulation of information obtained from this research or elsewhere respecting cultural and production practices, marketing, and distribution of wheat. In connection with research, the commission shall have the power to accept contributions of, or to match, private, state, or federal funds that may be available for those purposes, and to employ or make contributions of funds to other persons or state or federal agencies conducting the research.
To publish and distribute, without charge, a bulletin or other communication for dissemination of information relating to the wheat industry to producers and handlers.
To establish an assessment rate to defray operating costs of the commission.
To establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the director prior to disbursement of funds, except for disbursements made pursuant to subdivision (e) of Section 72081.
To educate and instruct wheat customers and buyers with respect to proper methods of handling and selling wheat, to make market surveys and analyses, to present facts to, and negotiate with, state, federal and foreign agencies on matters which affect the marketing of wheat, and to maintain and expand present markets and create new markets for wheat.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for criminal violation of this chapter.
ARTICLE 5. Implementation and Voting Procedures [72091. - 72099.]
Within 90 days after January 1, 1983, the director shall establish a list of producers eligible to vote on implementation of this chapter. In establishing the list, the director shall require that handlers, county agricultural commissioners, and wheat producers in this state submit the names, mailing addresses, and district numbers of all wheat producers. The request for this information shall be in writing. The list shall be filed within 30 days following receipt of the written notice.
Any producer of wheat, whose name does not appear upon the director’s list of producers affected, may have his name established on the list by filing with the director a signed statement, identifying himself as a producer. Failure to be on the list does not exempt the producer from paying assessments under this chapter.
The provisions of this chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the director finds, in a referendum conducted by the director, that at least 40 percent of the total number of producers from the list established by the director pursuant to Section 72091, participate, and either of the following:
Sixty-five percent or more of the producers who voted in the referendum, and the producers so voting marketed a majority or more of the total quantity of wheat in the preceding season by all of the producers who voted in the referendum, voted in favor of the provisions of this chapter.
A majority or more of the producers who voted in the referendum, and the producers so voting marketed 65 percent or more of the total quantity of wheat in the preceding season by all of the producers who voted in the referendum, voted in favor of the provisions of this chapter.
The director shall establish a period in which to conduct the referendum which shall not be less than 10 days nor more than 60 days in duration, and may prescribe any additional procedure that may be necessary to conduct the referendum. If the initial period established is less than 60 days, the director may extend the period.
Failure to receive a ballot shall not invalidate the referendum.
If the director finds that a favorable vote has been given as provided in Section 72092, he shall certify and give notice of the favorable vote to all producers and handlers whose names and addresses may be on file with the director.
If the director finds that a favorable vote has not been given as provided in Section 72092, he shall so certify and declare all provisions of this chapter inoperative.
Upon certification of the commission, the director shall contact all producers in each district by mail, or call meetings of producers in each district, for the purpose of nominating and electing persons for appointment to the commission by the director. All producers on the director’s list shall be given written notice of the election meetings at least 15 days prior to the meeting date.
Upon certification of the commission, the director shall establish a list of handlers and shall, by mail or calling a meeting of all handlers, conduct the nomination and election of handlers for appointment to the commission by the director. All handlers on the director’s list shall be given written notice of any nomination or election meetings at least 15 days prior to the meeting date.
To be eligible for election to the commission, producer nominees shall present to the director a nomination petition with the signatures of at least six eligible producers from the district from which the nominee is seeking election.
Subsequent to the first election of commissioners under this chapter, persons to be elected to the commission shall be selected pursuant to the nomination and election procedures which shall be established by the rules and regulations adopted by the commission with concurrence of the director.
Prior to the referendum vote conducted by the director pursuant to Section 72092, the proponents of the commission shall deposit with the director such amount as the director may deem necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any unused funds in carrying out the provisions of Section 72092 shall be returned to the proponents of the commission who deposited the funds with the director.
Upon establishment of the commission, the commission is authorized to reimburse the proponents of the commission for any funds deposited with the director and which were used in carrying out the provisions of Section 72092, and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [72101. - 72109.]
The commission shall, not later than April 30 of each year, establish the assessment for the following year beginning May 1 and ending April 30. In no event shall the combined assessment of the commission and any other state authorized wheat production research and market program exceed 1 percent of the gross dollar value of the year’s sale of wheat by all producers to handlers.
The commission shall establish producer gross dollar value through rules and regulations.
Every handler shall keep a complete and accurate record of all wheat received by him or her and the name of the producer whose wheat was shipped. The records shall be in simple form and contain such information as the commission shall prescribe. The records shall be preserved by the handler for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the director from handlers and all lists of producers in the possession of the director shall be confidential and shall not be disclosed except when required in a judicial proceeding. Information on volume shipments, crop value, and any other related information which is required for reports to governmental agencies; financial reports to the commission or aggregate sales and inventory information; and any other such information which the handlers request from the commission to receive in total, excluding individual handler information, may be disclosed by the commission.
Assessments provided for in this article shall be upon the producer. The handler first handling the wheat being assessed shall deduct the assessments from amounts paid by him to the producer and shall be a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission.
Every handler shall be personally liable for the payment of the collected assessments, and failure of the handler to collect the assessment from any producer shall not exempt any handler from liability for payment of the assessment.
Any assessment which is levied as provided for in this chapter, is a personal debt of every producer so assessed. Failure of a handler to make payment of the collected assessment to the commission shall not relieve the producer of this obligation.
Any producer or handler who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of such assessment determined to be due and, in addition, 112 percent interest per month on the unpaid balance.
Any person, firm, or corporation subject to the assessment in this chapter may request a total or partial refund of a paid assessment from the commission. No refund shall be made by the commission unless requested within 90 days from the date of collection of the assessment. However, the commission may extend that period upon a showing of good cause. The refund of assessment shall be made by the commission within 60 days of the date of the request for the refund. The commission shall establish procedures and provide forms for each request, shall maintain complete records, and shall ensure confidentiality.
ARTICLE 7. Actions and Penalties [72111. - 72112.5.]
It shall be a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding five hundred dollars ($500), or by both the fine and imprisonment, for any person to do any of the following:
Willfully to render or furnish a false report, statement, or record required by the commission.
When engaged in the shipping of wheat or in the wholesale or retail trade of wheat, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom he has received wheat and the quantity so received.
Secrete, destroy, or alter records required to be kept under the provisions of this chapter.
The commission shall adopt regulations for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for this purpose. Appeals from decisions the commission made after the hearing may be made to the director. The determination of the director shall be subject to judicial review upon petition filed with the appropriate court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance, respecting this chapter and the rules and regulations adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief. A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified by Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until there is full compliance with and satisfaction of the judgment. Upon a favorable verdict for the commission, it shall be entitled to receive reimbursement for any reasonable attorneys’ fees and other related costs. Venue for the actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
ARTICLE 8. Continuation, Suspension, and Termination [72131. - 72135.]
Between May 1, 1987, and April 30, 1988, the commission shall cause a referendum to be conducted among producers in the manner prescribed in Section 72131.5 to determine whether the operation of this chapter shall be reapproved and continued effective. If the director finds that a favorable vote has been given, he or she shall so certify and this chapter shall remain effective. If the director finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the current marketing season ending April 30, 1988. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 72134. No bond or security shall be required for any such referendum.
The operation of this chapter shall be reapproved and continued in effect if the director finds, in the referendum required pursuant to Section 72131, that a majority of the eligible producers voting in the referendum, voted in favor of continuing the operation of this chapter.
Following a favorable referendum conducted prior to April 30, 1988, a referendum shall be conducted by the commission every fifth year thereafter between May 1 and April 30, following procedures provided by this chapter and Section 72131.5, unless a referendum is conducted as the result of an industry petition pursuant to Section 72133. In that case the referendum shall be every fifth year following the industry petitioned referendum.
Upon the finding of a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the director that the operation of this chapter shall be suspended. However, any suspension shall not become effective until the expiration of the current marketing season. The director shall, upon receipt of the recommendation, or may upon a petition filed with him requesting the suspension, signed by 15 percent of the producers by number who produced not less than 15 percent of the volume in the immediately preceding season, and after a public hearing, cause a referendum to be conducted among the listed producers to determine if the operation and the operations of the commission shall be suspended. However, the director shall not cause a referendum to be conducted as a result of the petition unless the petitioner shows by the weight of evidence that the operation of this chapter has not tended to effectuate its declared purposes. The director shall establish a referendum period, which shall not be less than 10 nor more than 60 days in duration. The director is authorized to prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the director shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers from the list established by the director, participate in the referendum, the director shall suspend the operation of this chapter, if he or she finds either one of the following:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed a majority or more of the total quantity of wheat marketed in the preceding marketing season by all of the producers who voted in the referendum.
That a majority or more of the producers who voted in the referendum voted in favor of suspension, and that the producers so voting marketed 65 percent or more of the total quantity of wheat marketed in the preceding season by all of the producers who voted in the referendum.
The director shall terminate the commission at the end of the current marketing season if requested in writing, within a 90-day period, by at least 51 percent of the eligible producers who are directly affected and who produce at least 51 percent of the volume of the product.
The person or persons originating the request shall file a written notice with the director in a manner that establishes the date a request is initiated. Any person may withdraw his or her name for the petition requesting the termination prior to the time the request is presented to the director. The signatures to the petition requesting the termination need not all be appended to one sheet of paper. Each person signing the petition shall add to his or her signature his or her place of business, giving the street and number. If no street and number exist, then a designation of the place of business shall be given which will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension of the operation of this chapter and of the operations of the commission, the operations of the commission shall be concluded and any and all moneys remaining held by the commission, collected by assessment and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding current marketing season. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to those persons, any moneys remaining and any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program involved in activities authorized in this chapter. If no such program exists, the funds shall be paid into the State Treasury as unclaimed trust moneys.
Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all producers and handlers affected by the suspension whose names and addresses are on file.
CHAPTER 11. California Navel Orange Commission [73001. - 73356.]
ARTICLE 1. Declaration and General Provisions [73001. - 73006.]
The navel orange industry in this state constitutes one of California’s principal tree fruit crops, and thus provides an important source of employment for many people in the state.
Opportunity exists for continued growth and expansion of the industry by creating new markets in this country and abroad. The success of an expansion program is uniquely dependent upon effective advertising and promotion, since the creation of new markets and increased per capita consumption are essentially a matter of educating people to the use of highly nutritious navel oranges.
The creation of a California Navel Orange Commission is necessary for the efficient development and management of an advertising and promotion program and essential to ensure that the California navel orange industry can compete successfully in the world marketplace.
The production and marketing of navel oranges produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, and marketing research.
No action taken by the commission, nor by any individual in accordance with this chapter or with the rules and regulations adopted under the chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Fair Trade Act (Chapter 3 (commencing with Section 16900) of that Part 2), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
ARTICLE 2. Definitions [73051. - 73070.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Navel orange” means those oranges belonging to the genus Citrus, species sinensis (Linnaeus) Osbeck, and characterized by being seedless and having a navel at the apex, commonly known as navels and marketed for fresh consumption.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Carton” means a container holding approximately 40 pounds, or the equivalent thereof, of navel oranges marketed for fresh consumption.
“Commission” means the California Navel Orange Commission.
“Commissioner” means any member of the commission.
“Consumer communications” means, as defined by the commission, all manner of advertising and other communications which are directed towards the general consuming public.
“Cooperative handler” means a handler organized under this code and the Capper-Volstead Act (Chapter 12 (commencing with Section 291) of Title 7 of the United States Code) who markets fruit for producer members.
“Cooperative producer” means a producer who markets his or her fruit through a cooperative handler.
“Director” means the Director of Food and Agriculture.
“Districts” mean the following:
District A consists of the Counties of Fresno, Madera, Butte, Colusa, Glenn, Merced, Placer, Shasta, Solano, Sonoma, Stanislaus, Sutter, Tehama, Yolo, Yuba, and all other counties not included in Districts B, C, D, E, and F.
District B consists of that portion of Tulare County located between the northern boundary of Tulare County and a straight east-west line made up and defined by Avenue 384.
District C consists of that portion of Tulare County located between Avenue 384, and a straight east-west line made up and defined by Avenue 232.
District D consists of that portion of Tulare County located between Avenue 232 and the southern boundary of Tulare County.
District E consists of Kern County.
District F consists of the Counties of Riverside, San Bernardino, San Diego, San Luis Obispo, Imperial, Los Angeles, Mono, Orange, Santa Barbara, and Ventura.
The boundaries of any district may be changed by a two-thirds vote of the commission, which is concurred in by the director, to maintain similar total production among the districts and to ensure proper representation by producers. The boundaries need not coincide with county lines.
“Ex officio member” means a nonvoting member of the commission.
“Handle” means to engage in the business of a handler.
“Handler” means any person who engages in the operation of selling or marketing navel oranges for fresh consumption which he or she has produced, purchased, or acquired from a producer, or which he or she is marketing on behalf of a producer, whether as owner, agent, employee, or broker or otherwise. It does not, however, include a retailer, except a retailer who purchases or acquires from, or handles on behalf of, any producer navel oranges which were not previously subject to regulation by the commission.
“Independent handler” means a handler, other than a cooperative handler, who markets fruit for independent producers.
“Independent producer” means a producer who markets his or her fruit primarily through an independent handler.
“Market” or “marketing” means to sell or otherwise distribute navel oranges into commercial channels of trade for fresh consumption in a manner resulting in the sale of the navel oranges.
“Marketing research” means any research relating to the sale of navel oranges.
“Marketing season” or “fiscal year” means the period beginning October 1 of any year and extending through September 30 of the following year. However, the 1983–84 marketing season shall commence within 15 days after the election of the first commission members as provided in Article 5 (commencing with Section 73201).
“Producer” or “grower” means any person who is engaged within this state in the business of producing, or causing to be produced, navel oranges for market.
ARTICLE 3. The California Navel Orange Commission [73101. - 73124.]
There is in the state government the California Navel Orange Commission. The commission shall be composed of 12 producers who are not handlers, four handlers, and one public member.
Six producers, one from each district shall be nominated and elected by and from independent producers. Six producers, one from each district shall be nominated and elected by and from cooperative producers.
Except as provided in Section 73104, two cooperative handler members shall be nominated and elected by and from cooperative handlers. Two independent handler members shall be nominated and elected by and from independent handlers. No handler may be represented on the commission by more than one handler member.
If a handler markets 50 percent or more of the volume of the navel oranges in the preceding marketing season, as annually determined by the director, the handler is entitled to nominate and elect two handler members. All other handlers subject to this chapter shall nominate and elect two handler members. Any handler with two handler members on the commission, who later is not entitled to elect two handler members, shall remove one of its two members and the member’s alternate in a manner prescribed by the commission. The vacancy shall be filled in accordance with Section 73112.
The public member shall be appointed to the commission by the director from the nominees recommended by the commission.
The director, citrus grower trade organizations primarily involved in issues affecting the orange industry, and other appropriate individuals and organizations, as determined by the commission, are ex officio members of the commission.
The director may require the commission to correct or cease any existing activity or function which is determined by the director not to be in the public interest or which is in violation of this chapter.
If the commission refuses or fails to cease the activities or functions or to make the corrections as required by the director, the director may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions required by the director has been accomplished by the commission.
Actions of the commission in violation of a written notice have no legal force or effect. The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
Upon service of the written notice, the director shall notify the commission, in writing, of the specific acts which he or she determines are not in the public interest or are in violation of this chapter and his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and he or she may make recommendations that will make the activities or functions acceptable.
The commission may bring an action for judicial relief from the director’s written notice, and the director may bring an action for judicial relief from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his or her duties and responsibilities under this chapter. However, the court may, if it finds that the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to the action.
Each member of the commission, except the ex officio members, shall have an alternate member elected in the same manner as the member.
An alternate member, in the absence of the member for whom he or she is alternate, shall serve in place of the member on the commission and shall have all the rights, privileges, and powers of the member when serving on the commission.
In the event of death, removal, resignation, or disqualification of a member, the alternate shall act as a member on the commission until a qualified successor is elected.
Any vacancy on the commission occurring by the failure of any elected member or elected alternate member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled for the unexpired portion of the term by appointment by a majority vote of the commission.
The person so appointed shall fulfill all the requirements set forth in this article for the member or the alternate member whose office he or she is to fill.
The qualification of any person to fill a vacancy on the commission shall be certified by the commission, in writing, to the director. The director shall notify the commission if he or she determines that the person is not qualified.
Any producer member or his or her alternate shall be an individual, partner, or employee of a producer who has a financial interest in producing, or causing to be produced, navel oranges for market.
A producer member or alternate shall meet this requirement during the entire term of office.
Any handler member or his or her alternate shall be an individual, partner, or employee of a handler who has a financial interest in handling navel oranges for market.
A handler member or alternate shall meet this requirement during the entire term of office.
The public member or his or her alternate shall have all the powers, rights, responsibilities, and privileges of any other member on the commission.
The public member shall not have any financial interest in the navel orange industry during the entire term of office.
Except as provided in subdivision (b), the term of office of the elected commissioners is three years from the date of their election and until their successors are qualified and elected.
With respect to the first elected members of the commission, one-third of the producers shall serve for one year, one-third of the producers and one cooperative handler and one independent handler shall serve for two years, and one-third of the producers and one cooperative handler and one independent handler shall serve for three years, with the determination of the term of each member to be made by lot.
An elected commissioner shall not serve more than three consecutive terms.
The public member shall serve a term of three years and shall remain on the commission after the expiration of three years until his or her successor is qualified and appointed.
The commission shall be and is hereby declared and created as a corporate body.
It may sue and be sued, may contract and be contracted with, and has all of the powers of a corporation. It may adopt a corporate seal.
Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state and shall be prima facie evidence of the truth of all statements therein.
The director or his or her representatives shall be notified of, and may attend, each meeting of the commission and any committee meeting of the commission. However, the director or his or her representative or any other ex officio member is not entitled to attend an executive session of the commission called for the purpose of discussing potential or actual litigation involving either the department or the organization represented by the ex officio member, as the case may be.
When a decision of the commission requires the concurrence of the director, he or she shall indicate his or her response, in writing, to the commission within 15 working days from notification of the decision.
No commissioner, including alternates, or a member of a committee established by the commission who is a nonmember of the commission, shall receive a salary.
Each commissioner and alternate, except ex officio governmental members, and each member of a committee who is a nonmember of the commission, may receive a sum of not to exceed one hundred dollars ($100) per day, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees or on special assignment for the commission, as approved by the commission, together with the necessary traveling expenses and meal allowances, as approved by the commission.
All funds received by any person from the assessments levied under the authority of this chapter, or otherwise received by the commission, shall be deposited in the banks or other appropriate financial institutions designated by the commission and shall be disbursed by order of the commission through the agent or agents that it designated for that purpose.
The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in the amount of not less than one hundred thousand dollars ($100,000).
The state shall not be liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission.
No member of the commission or alternate member, or any employee or agent thereof, is personally liable on the contracts of the commission or responsible individually in any way to any producer, any handler, or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime.
The commission shall accept full responsibility to defend any member of the commission or alternate member, or any employee or agent thereof, against any such claim, except for individual acts of dishonesty or crime.
No commissioner or alternate member shall be held responsible individually for any act or omission of any other member of the commission. The liability of the commissioners are several and not joint, and no commissioner is liable for the default of any other commissioner.
ARTICLE 4. Powers and Duties of the Commission [73151. - 73169.]
The commission shall adopt and, from time to time, alter, rescind, modify, and amend in a manner prescribed by the commission, all proper and necessary bylaws, rules and regulations, and orders for carrying out this chapter, including rules for appeals from any bylaw, rule and regulation, or order of the commission.
The commission shall administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, the proper or advisable effectuation of the purposes of this chapter.
The commission shall appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers that it deems necessary.
The officers have the powers and duties delegated to them by the commission.
The commission shall employ a manager to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, that are necessary to carry out this chapter.
In lieu of an individual as manager, the commission may contract with any private entity or state agency to perform, under the control of the commission, the functions specified in subdivision (a).
If the manager, private entity, or state agency engages in any conduct which the director determines is not in the public interest or which is in violation of this chapter, the director shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the manager, private entity, or state agency, as the case may be.
The commission shall fix the compensation for all employees of the commission.
The commission may appoint committees which may be composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission shall appoint a committee or committees to deal specifically with budget and advertising issues.
Commission members who pay the full assessment are entitled to a proportionately greater membership, as determined by the commission, on the committee or committees, than members who receive a brand credit as provided in Article 6 (commencing with Section 73251).
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments for that year, that may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which books, records, and accounts are subject to an annual audit by an auditing firm selected by the commission with the concurrence of the director. The audit shall be made a part of an annual report to all producers, copies of which shall also be submitted to the Legislature and the department.
In addition, the director may, as he or she determines it to be necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission shall promote the sale of navel oranges by advertising and other promotional means, including cost-sharing advertising, to maintain and expand present markets and create new and larger markets for navel oranges, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of navel oranges.
This authority, however, does not include cost-sharing advertising and cash incentives or discounts with the wholesale or retail trade, as defined by the commission.
The commission shall educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling navel oranges, to make market surveys and analyses, and to present facts to, and negotiate with, private and public agencies on matters which affect the marketing of navel oranges.
The commission may enter into contracts to render service in formulating and conducting plans and programs authorized under this chapter.
The commission may conduct, and contract with others to conduct, marketing research, including the study, analysis, dissemination, and accumulation of information obtained from the research or from other sources.
The commission may publish and distribute, without charge, bulletins or other communications for dissemination of information relating to commission activities and other related matters to producers and handlers.
Pursuant to Section 73251, the commission shall establish an assessment rate to defray operating costs of the commission.
The commission shall prepare an annual budget according to accepted accounting practices.
Except for disbursements to pay the compensation of the employees of the commission, no disbursement of funds shall be made unless the director concurs in the budget.
The commission shall submit to the director, for his or her concurrence, an annual statement of contemplated activities authorized under this chapter, including advertising, promotion, and marketing research.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for criminal violation of this chapter.
ARTICLE 5. Implementation and Voting Procedures [73201. - 73212.]
As soon as possible and no later than 60 days after the effective date of this chapter, the director shall establish a list of producers eligible to vote on implementation of this chapter. In establishing this list, the director may require each handler, with respect to those producers whose navel oranges the handler markets, and each county agricultural commissioner, with respect to the producer with bearing acreage within the county, to submit the name and mailing address of, and the volume, if known, shipped by, each producer. The request for this information shall be in writing. The information required by the director shall be filed within 30 days following receipt of the written notice.
Any producer, whose name does not appear upon the director’s list of producers affected, may have his or her name included on the list by filing with the director a signed statement identifying himself or herself as a producer. Failure to be on this list does not exempt the producer from paying assessments under this chapter.
Additionally, the director may use other sources of information necessary to secure that information to establish the list.
This chapter, except as necessary to conduct an implementation referendum, does not become operative until the director finds in a referendum conducted by the director, or a person designated by the director, that at least 40 percent of the total number of producers from the list established by the director pursuant to Section 73201, participated, and that he or she finds either one of the following:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed a majority of the volume of navel oranges in the preceding season by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the volume of navel oranges in the preceding season by all of the producers who voted in the referendum.
The director shall establish a period in which to conduct the referendum which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures as may be necessary to conduct the referendum. If the initial period established is less than 60 days, the director may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot does not invalidate a referendum.
If the director finds that a favorable vote has been given as provided in Section 73202, he or she shall certify and give notice of the favorable vote, and that this chapter is operative, to all producers whose names and addresses are on list of the director.
If the director finds that a favorable vote has not been given as provided in Section 73202, he or she shall so certify and declare this chapter to be inoperative.
Upon certification of the commission, the director shall contact all producers in each district by mail, or call meetings of producers in each district, for the purpose of nominating and electing persons to the commission as provided for in Section 73102.
All producers on the director’s list shall be given written notice of the meetings at least 15 days prior to the meeting date.
Any producer with navel orange acreage in more than one district shall vote only in the district in which he or she has the majority of his or her bearing acreage.
Any producer who qualifies as both a cooperative producer and independent producer shall vote in the category of producers, either cooperative or independent, which reflects where the majority of that producer’s volume of navel oranges are to be marketed.
To be eligible for election to the commission, a producer nominee shall submit to the director a nomination petition with the signatures of at least 10 eligible producers from the district from which the nominee is seeking election.
The director shall establish a list of handlers and shall, by mail ballot or by calling a meeting of all handlers, conduct the nomination and election of handlers to the commission as provided for in Sections 73103 and 73104.
Handlers shall be given written notice of the meeting at least 15 days prior to the meeting date.
Subsequent to the first election of commissioners under this chapter, persons to be elected to the commission shall be selected pursuant to the nomination and election procedures established by the commission with the concurrence of the director.
Prior to the implementation referendum conducted by the director pursuant to Section 73202, the proponents of the commission shall deposit with the director the amount that the director deems necessary to defray the expenses in creating the commission, including, but not limited to, preparing the necessary lists of producers and handlers and conducting the implementation referendum.
Any funds left after paying those expenses shall be returned to the proponents of the commission who deposited the funds with the director.
Upon creation of the commission, the commission is authorized to reimburse the proponents of the commission for any funds deposited with the director which were used in creating the commission, including, but not limited to, preparing the necessary lists of producers and handlers and conducting the implementation referendum.
ARTICLE 6. Assessments and Records [73251. - 73261.]
The assessment on navel oranges for fresh consumption shall be established by the commission prior to the beginning of each marketing season and shall not exceed seven cents ($0.07) per carton during the 1983–84 marketing season. Thereafter, the assessment for each marketing season shall not exceed 5 percent of the industry average F.O.B. price of a packed carton reported by the federal Navel Orange Administrative Committee for the preceding three marketing seasons and shall be assessed on a cents-per-carton basis.
If the Navel Orange Administrative Committee ceases to exist, the commission shall determine the average F.O.B. price of a packed carton using information from public and private sources as it deems appropriate.
Any producer who pays an assessment to a cooperative handler or independent handler, and that producer markets his or her navel oranges and conducts an approved navel orange brand advertising program, shall receive a brand credit, thereby allowing the producer to deduct the amount of the credit from any payments otherwise owed to the commission as provided for under this chapter.
Identified commission administrative expenses in an amount not to exceed 10 percent of the assessment owed by any producer prior to deducting the brand credit, and commission institutional expenses in an amount not to exceed 5 percent of the assessment owed by any producer prior to deducting the brand credit, are not entitled to brand credit. In no case shall the brand credit result in any producer paying an assessment to the commission of less than two cents ($0.02) per carton.
For purposes of this section, institutional expenses are defined as those expenses incurred in informing food editors for newspapers, magazines, radio, and television, and informing consumer departments for schools, retailers and other related businesses, regarding produce supply, usage suggestions, and nutritional facts about navel oranges.
At least 60 percent of the commission’s total expenditures shall be expended for consumer communication.
In order to qualify for brand credit, as provided in subdivision (d) of Section 73254 any person or entity subject to this chapter is required to spend at least 60 percent of its navel orange funds on consumer communications.
Any direct consumer communication purchases qualifies for brand credit when determined by the commission to be in accordance with the following criteria:
As defined by the commission, direct consumer communication purchases shall prominently display, or otherwise state, the words “California Navel Oranges” in the advertisement. A cooperative handler or independent handler who markets navel oranges from California and Arizona and funds its brand advertising program through funds collected from all producers, and who prominently displays or otherwise states the words “California-Arizona Navel Oranges” in the advertisement, is entitled to brand credit.
Except for the County of Ventura, subdivision (a) does not apply to outdoor media advertising located in counties with more than 1,000 acres of bearing navel oranges in commercial production. In that county, an amount not to exceed 10 percent of a consumer communications expenditure shall be entitled to brand credit.
Direct consumer communications qualifies for brand credit when depicting more than one variety or type of citrus fruit so long as the credit is calculated on a prorated basis giving credit only for that portion of the program which promotes navel oranges in accordance with this section.
To qualify for brand credit, the person or entity applying for brand credit shall submit a plan indicating the general size and scope of the activities for which brand credit will be claimed. However, information regarding the timing and location of the activities shall be considered confidential and need not be submitted. Upon presentation of the plan, the commission shall indicate within 30 days whether the program complies with this chapter and is therefore entitled to brand credit as provided for in this chapter. If all, or any portion, of a program does not comply, as determined by the commission, the commission shall advise the applicant for brand credit, in writing, the reasons for its decision. Any such decision is appealable under Section 73302.
Any producer or handler, on behalf of a producer member, who requests brand credit shall furnish documents and records in support of the request at a time and in a manner prescribed by the commission.
Unless otherwise prohibited in this chapter, and in addition to the provisions of Section 73254, a person or entity that is qualified to receive brand credit shall qualify for brand credit for any activity that is also engaged in by the commission.
The activities of advertising in trade publications and participating in conferences or conventions are not eligible for application of brand credit.
This chapter does not apply to navel oranges produced only for the producer’s home use or where the navel oranges are used only for ornamental purposes. However, the producer shall file an affidavit with the commission stating that his or her navel oranges are not produced for commercial purposes. In any event, no production of navel oranges for fresh shipment is exempt from the assessment under this article when it is marketed.
Every handler shall keep a complete and accurate record of all navel oranges handled by him or her with the name of the producer whose navel oranges were handled. These records shall be in the form, and contain the information, as prescribed by the commission. The records shall be kept by the handler for a period of five years and shall be submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the director from producers or handlers, and all lists of producers or handlers in the possession of the commission or the director, are confidential and shall not be disclosed except when required in a judicial proceeding involving this chapter.
Information on volume shipments, crop value, and any other related information which is required for reports to governmental agencies; financial reports to the commission or aggregate sales and inventory information; and any other information which the commission requires that gives only totals, but excludes individual handler information, may be disclosed by the commission.
Assessments shall be levied upon the producer. The first handler of navel oranges being assessed shall deduct the assessment from amounts paid by him or her to the producer and shall be a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission.
Every handler is personally liable for the payment of the collected assessments, and failure of the handler to collect the assessment from any producer does not exempt the handler from this liability.
Any assessment which is levied pursuant to in this chapter is a personal debt of the producer so assessed. Failure of a handler to make payment of the collected assessment to the commission does not relieve the producer of this obligation.
Any producer or handler who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, 2 percent interest per month on the unpaid balance.
ARTICLE 7. Actions and Penalties [73301. - 73306.]
It is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding five hundred dollars ($500), or by both the fine and imprisonment, for any person to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission.
When engaged in the shipping of navel oranges or in the wholesale or retail trade of navel oranges, fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom navel oranges have been received and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of addressing any claims made against the commission or any of its individual members and alternates, and for the purpose of according individuals, including members and alternates, aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose.
Appeals from decisions of the commission may be made to the director. The determination of the director is subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance, with respect to this chapter and the rules and regulations adopted under this chapter.
Except in a proceeding to determine whether the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, upon a favorable verdict for the commission, the commission is entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs.
Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action for any penalty or other remedy which is prescribed under this chapter shall be commenced within two years from the date of the alleged violation.
It is not necessary for the commission to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.
This chapter shall be liberally construed.
If any section, clause, or part of this chapter is for any reason held to be unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the remaining portions of this chapter or the application of this chapter to any other persons or under any other circumstance.
ARTICLE 8. Continuation or Suspension and Termination [73351. - 73356.]
Between October 1, 1987, and September 30, 1988, the commission shall conduct a referendum among producers in the manner prescribed in Section 73202 to determine whether the operation of this chapter shall be reapproved and continued in effect.
If the director finds that a favorable vote has been given, he or she shall so certify and this chapter shall remain operative. If the director finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the marketing season ending September 30, 1988. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 73355.
No bond or security is required for the referendum.
Following a favorable referendum conducted prior to September 30, 1988, a referendum shall be conducted by the commission every fifth year thereafter between October 1st and September 30, following procedures provided in this article, unless a referendum is conducted as the result of a petition filed pursuant to Section 73353. In that case, the referendum shall be every fifth year following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the director that the operation of this chapter be suspended. However, the suspension shall not become effective until the expiration of the current marketing season.
The director shall, upon receipt of this recommendation, or may, after a public hearing to review a petition filed with him or her requesting the suspension, signed by 15 percent of the producers by number who produced not less than 15 percent of the volume in the immediately preceding marketing season, conduct a referendum among the producers to determine if the operation of the commission shall be suspended.
The director shall establish a referendum period, which shall not be less than 10 or more than 60 days in duration. The director may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the director shall tabulate the ballots filed during the period.
If at least 40 percent of the total number of producers from the list established by the director participated in the referendum, the director shall continue the operation of this chapter, if he or she finds either one of the following:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of continuation, and the producers so voting marketed a majority or more of the volume of navel oranges marketed in the preceding marketing season by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of continuation, and the producers so voting marketed 65 percent or more of the volume of navel oranges marketed in the preceding season by all of the producers who voted in the referendum.
Prior to any referendum resulting from a petition filed in accordance with Section 73353, the petitioners shall deposit with the director an amount that the director deems necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum. Any funds not used shall be returned to the petitioners who deposited the funds with the director.
After the effective date of suspension of the operation of this chapter and of the commission, the operations of the commission shall be concluded and any and all remaining funds held by the commission, collected by assessment and not required to defray the expenses of concluding and terminating the operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season.
However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of a pro rata refund to these persons, any such funds remaining and any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state authorized navel orange or citrus program. If no such program exists, the funds shall be paid into a federally authorized navel orange or citrus program. If no such program exists, the funds shall be paid into the State Treasury as unclaimed trust money.
Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all producers affected by the suspension whose names and addresses are on file.
CHAPTER 12. Winegrowers of California Commission [74001. - 74196.]
ARTICLE 1. Declaration and General Provisions [74001. - 74009.]
The production and distribution of wine and winegrapes constitute an important industry of this state which provides substantial and necessary revenues for the state and employment for its citizens. It also furnishes an important food which benefits the public health and welfare.
The maintenance and expansion of the wine and winegrape industry of California and of its local, national, and foreign markets is necessary to assure the consuming public of a continuous supply of these products and needed levels of income for those engaged in the wine and winegrape industry in this state.
It is in the public interest that the public be made aware of accurate and scientific information relating to the beneficial qualities of wine, winegrapes, and winegrape products.
The production and marketing of wine, winegrapes, and winegrape products produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission nor by any individual in accordance with this chapter or with the rules and regulations adopted under the chapter is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Fair Trade Act (Chapter 3 (commencing with Section 16900) of that Part 2), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade. Proof that any action complained of was done in compliance with this chapter shall be a complete defense to the action or proceeding.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of a particular agricultural industry, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who serve on the commission, the particular agricultural industry is tantamount to, and constitutes the public generally within the meaning of Section 87103 of the Government Code.
A commission form of administration created by this chapter is designed to deal with the broad fields of market development, marketing research, and production and processing research.
This chapter shall be known and may be cited as the Dills-Bronzan Winegrowers Joint Commission Act of 1986.
ARTICLE 2. Definitions [74021. - 74040.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Brandy” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of whole, sound, ripe grapes or from the residue thereof, distilled at not over 170 degrees proof.
“Commission” means the Winegrowers of California Commission.
“Grape concentrate” or “concentrate” means unfermented grape juice from which the major portion of the original water content has been removed.
“Grape juice” or “juice” means unfermented crushed grapes without solids containing the major portion of the original water content.
“Producer” and “grower” are synonymous and mean any person who produced winegrapes in a marketing season in a quantity of more than 25 tons. Unless otherwise exempted, producer also includes any person who receives winegrapes as payment for the use of his or her property in the production of winegrapes.
“Producer districts” shall consist of the following:
District 1 consists of Lake, Solano, Mendocino, Sonoma, Marin, and Napa Counties.
District 2 consists of the City and County of San Francisco, and Santa Barbara, San Luis Obispo, Ventura, Monterey, San Benito, Santa Clara, Santa Cruz, Alameda, San Mateo, and Contra Costa Counties.
District 3 consists of Butte, Colusa, Glenn, Sacramento, Shasta, Tehama, Yolo, Yuba, Trinity, Siskiyou, Modoc, Lassen, Plumas, Sierra, Sutter, Humboldt, and Del Norte Counties, and that portion of San Joaquin County north of State Highway 4.
District 4 consists of Merced, Stanislaus, Mariposa, Calaveras, Amador, El Dorado, Placer, Nevada, and Tuolumne Counties, and that portion of San Joaquin County south of State Highway 4.
District 5 consists of Fresno, Alpine, Mono, Inyo, and Madera Counties, and that portion of Kings and Tulare Counties north of Nevada Avenue (Avenue 192).
District 6 consists of Kern County and that portion of Kings and Tulare Counties south of Nevada Avenue (Avenue 192).
District 7 consists of Los Angeles, Orange, Riverside, San Bernardino, Imperial, and San Diego Counties.
“Ex officio member” means a nonvoting member of the commission.
“High proof” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of fresh winegrapes or from the residue thereof.
“Market” means to sell, barter, trade, purchase, acquire, or otherwise distribute wine, winegrapes, or winegrape products.
“Market development” includes, but is not limited to, trade promotion, public information, dissemination of information on health and social issues and other matters, and activities for the prevention, modification, or removal of trade barriers which restrict the free flow of winegrape products to market and may include the presentation of facts to state, federal, or foreign governmental agencies on matters which affect this chapter.
“Market research” means any investigation, development, analysis, or implementation of information relating to the marketing of wine, winegrapes, and winegrape products including, but not limited to, trade practices, consumer trends, promotion, sales, and advertising.
“Marketing season” or “fiscal year” means the period beginning July 1 of any year and extending through June 30 of the following years.
“Must” means a mixture of unfermented crushed grapes, solid grape particles, and grape juice.
“Production research” means research relating to the production and processing of winegrapes, including, but not limited to, the development of new winegrape products and uses for these products.
“Vintner” and “processor” are synonymous and mean any person engaged in producing must, grape juice, grape concentrate, wine, or products thereof, including high proof and brandy, and includes a “winegrower” as that term is defined in Section 23103 of the Business and Professions Code, who produces wine from winegrapes. However, a producer does not become a vintner solely by the act of field crushing winegrapes before delivering the winegrapes as must to another person. A vintner who acquires and processes winegrapes in the preceding marketing season in a quantity of 100 tons or less is not subject to this chapter.
“Wine” means the product obtained by the fermentation of winegrapes or juice therefrom, with or without addition or abstracting, and includes any product made from winegrapes which is defined as a wine and permitted under Part III (commencing with Section 5381) of Subchapter F of Chapter 51 of Title 26 of the United States Code, and in the statutes of this state and regulations issued thereunder defining wine produced from grapes.
“Winegrapes” means grapes produced in this state which are intended to be converted from their fresh form into grape juice, grape concentrate, wine, or products thereof, including, but not limited to, high proof and brandy produced from winegrapes.
“Winegrape products” include, but are not limited to, must, grape juice, grape concentrate, wine, high proof, and brandy produced from winegrapes.
ARTICLE 3. Winegrowers of California Commission [74061. - 74078.]
There is in state government, the Winegrowers of California Commission. The commission shall be composed of 18 producers, 18 vintners, and may include one public member.
Producers within District 7 shall elect one producer member; producers within Districts 2, 3, 4, and 6 shall each elect two producer members; producers within District 5 shall elect four producer members; and producers within District 1 shall elect five producer members to serve on the commission. Alternate producer members shall be elected in the same manner. Each producer member and alternate producer member shall be elected from the district in which he or she produces the greatest portion of his or her winegrape tonnage.
Vintner members shall be elected by the industry at large and serve on the commission without reference to any county, district, or area of the state.
The public member may be appointed to the commission by the director from nominees recommended by the commission.
The director, and other appropriate individuals as determined by the commission, shall be ex officio members of the commission.
Periodically, the number of producer members and their respective alternate members serving on the commission from any district shall be reapportioned in a manner that assures representation in accordance with the value of winegrapes produced in each district. However, no district shall have less than one member nor more than five members on the commission.
The director may require the commission to correct or cease any existing activity or function which is determined by the director not to be in the public interest or which is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make these corrections as required by the director, the director may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the director has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
Upon service of the written notice, the director shall notify the commission in writing of the specific acts which he or she determines are not in the public interest or are in violation of this chapter, the reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and may make recommendations that will make the activities or functions acceptable.
The commission or the director may bring an action for judicial relief from the director’s written notice or for noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction which may issue a temporary restraining order, permanent injunction, or other appropriate relief.
When the director is required to concur in a decision of the commission, he or she shall indicate his or her response to the commission within 15 working days from notification of the decision. The response may be a request that additional information be provided.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his or her duties and responsibilities pursuant to this chapter. However, the court may, if it finds that the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to that action.
Each member of the commission, except the ex officio members, shall have an alternate member to be elected in the same manner as the member. An alternate member shall, in the absence of the member of whom he or she is an alternate, serve in place of the member on the commission and have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or disqualification of a member, the alternate shall serve as a member on the commission until a successor is elected and has qualified.
Any producer member and his or her alternate member shall be a person, or an employee representing a producer, who has a financial interest in producing, or causing to be produced, winegrapes for market. The qualifications of producer members and alternate members shall be maintained during the entire term of office. No more than one member and his or her alternate members shall be employed by or connected in a proprietary capacity with the same producer. However, producer membership in an agricultural nonprofit cooperative association or trade organization shall not be considered employment or being in a proprietary capacity.
Any vintner member and his or her alternate member shall be a person, or an employee representing a vintner, who has a financial interest in processing winegrapes for market. The qualifications of vintner members and alternate members shall be maintained during the entire term of office. No more than one member and his or her alternate member shall be employed by or connected in a proprietary capacity with the same vintner. However, vintner membership in an agricultural nonprofit cooperative association or trade organization shall not be considered employment or being in a proprietary capacity.
The public member and his or her alternate member shall have all the rights, privileges, and powers of any other member of the commission. The public member shall not have any financial interest in the wine or winegrape industry.
The term of office of members and alternate members shall be for two years or until their successors have been elected and have qualified. However, of the first members of the commission, one-half of the vintner members and their alternate members shall serve for one year; one-half of the producer members and their alternate members and one-half of the vintner members and their alternate members shall serve for two years. The determination of the term of each member shall be made by lot. No member or alternate member shall serve more than four consecutive terms.
No less than 10 producer members and 10 vintner members, including alternate members when acting in place of the members, shall constitute a quorum of the commission.
The vote of a majority of the members, or alternate members when acting in the place of the members, present at the meeting at which there is a quorum shall constitute the act of the commission. However, for an affirmative vote to be valid, it shall include not less than five producer members and five vintner members.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state and shall be prima facie evidence of the truth of all statements therein.
The director or his or her representatives shall be notified and may attend meetings of the commission and any committee meetings of the commission.
No member of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission, except ex officio government members, and each member of a committee established by the commission who is a nonmember of the commission, may receive an amount not to exceed one hundred dollars ($100) per day, as established by the commission. This amount shall be paid for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission. Members shall also receive necessary traveling expenses and meal allowances, as approved by the commission.
All funds received from the assessments levied pursuant to this chapter or otherwise received by the commission shall be deposited in banks which the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission.
No member, alternate member, or any employee or agent of the commission, is personally liable for the contracts of the commission or for errors in judgment, mistakes or other acts, either of commission or omission, except for their own individual acts of dishonesty or crime. Liability is several and not joint, and no member, alternate member, or any employee or agent of the commission is liable individually for the default, act, or omission of any other member, alternate member, or any employee or agent of the commission.
ARTICLE 4. Powers and Duties of the Commission [74091. - 74108.]
The powers and duties of the commission shall include, but are not limited to, all of those contained in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, operating procedures, and orders for carrying out this chapter, including appeals from any bylaws, rules, regulations, operating procedures, or orders of the commission.
The commission may administer and enforce this chapter and do and perform all actions and exercise all powers incidental to, in connection with, or deemed reasonably necessary for, proper or advisable effectuation of this chapter, including, but not limited to, entering into contracts for services with public and private agencies which are deemed necessary by the commission to carry out this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers it deems necessary. The officers shall have the powers and duties delegated to them by the commission. The office of chairperson shall alternate annually between the producer members and the vintner members.
The commission may employ a person to serve at the pleasure of the commission as president, and other personnel, including legal counsel, necessary to carry out this chapter. If the person engages in any conduct which the director determines is not in the public interest or which is in violation of this chapter, the director shall notify the commission of the conduct and request that corrective action and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission.
The commission may establish offices, incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the director. A summary of the audit shall be made a part of an annual report to all producers and vintners, copies of which shall also be submitted to the Legislature and the department. In addition, the director may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may engage in market development and market research through plans and programs to enhance the sale of California wine, winegrapes, and winegrape products for the purpose of maintaining existing markets and creating new and larger domestic and foreign markets, and to educate and instruct the public with respect to the uses and value of California wine, winegrapes, and winegrape products. However, any plans and programs so developed and conducted shall not be directed towards a particular private brand or trade name, although private brands and trade names may be used in wine tastings and other similar programs authorized by the commission. In addition, the plans and programs shall make no use of false or unwarranted claims on behalf of California winegrapes or winegrape products, nor disparage the quality, value, sale, or use of any commodity.
The commission may accept contributions of private, state, or federal funds that may be available for these purposes, and may allocate funds by contract or agreement to other persons or to state or federal agencies conducting this research.
The commission may undertake appropriate research relating to the production and processing of wine and winegrapes, including the development of new winegrape products and uses for these products.
The commission may publish and distribute bulletins or other communications relating to the California wine and winegrape industries.
The commission may establish an assessment rate to defray operating costs of the commission.
The commission may establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the director prior to disbursement of funds, except for disbursements made pursuant to Section 74096.
The commission shall submit to the director, for his or her concurrence, an annual statement of contemplated activities authorized pursuant to this chapter.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The director may require that any contract in which the commission is a party be submitted to him or her for concurrence prior to the commission entering into the contract. If the director requires the submission of a contract and does not concur in that contract, he or she shall hold a public hearing within 14 days of the initial decision not to concur. In the notice of the hearing, the director shall present a written explanation of his or her decision. The director shall make a final decision on whether or not to concur in the contract within 30 days of the hearing. The contract may not be executed from the time that the director makes the initial decision not to concur to the time of the final decision.
ARTICLE 5. Implementation and Voting Procedures [74121. - 74131.]
This chapter, except as necessary to conduct an implementation referendum, shall not become operative until the director finds, in a referendum conducted by him or her, or a person designated by the director, that a favorable vote has been given pursuant to this article.
The referendum shall provide for eligible producers and eligible vintners to approve this chapter jointly as applicable to both producers and vintners.
Not later than April 1, 1987, the director shall establish a list of producers and a list of vintners who are eligible to vote on implementation of this chapter. In establishing the lists, the director may require producers, vintners, county agricultural commissioners, and others to submit the names and mailing addresses of all producers and vintners. The director also may require that the information provided include the quantity of winegrapes sold to vintners and the quantity of winegrapes processed by vintners or, in the alternative, may establish procedures for receiving the information at the time of the referendum. The request for this information shall be in writing. The information required by the director shall be filed within 30 days following receipt of the written notice.
Any producer or vintner whose name does not appear on the director’s lists may have his or her name included on the appropriate list by filing with the director a signed statement identifying himself or herself as a producer or vintner. Failure to be on the appropriate list does not exempt any producer or vintner from paying assessments under this chapter.
In determining whether this chapter is approved by producers, the director must find that at least 40 percent of the total number of producers from the list established by the director participated in the referendum, and that either one of the following has occurred:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed a majority of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted in the referendum.
In determining whether this chapter is approved by vintners, the director must find that at least 40 percent of the total number of vintners from the list established by the director participated in the referendum, and that either one of the following has occurred:
Sixty-five percent or more of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting either acquired or processed their own production, or a combination thereof, which represents a majority of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the vintners who voted in the referendum.
A majority of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting either acquired or processed their own production, or a combination thereof, which represents 65 percent or more of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the vintners who voted in the referendum.
The director shall establish a period in which to conduct the referendum which shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures to conduct the referendum. If the initial period established is less than 60 days, the director may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the director finds that a favorable vote has not been given as provided in this chapter, he or she shall certify and declare this chapter inoperative. If the director finds that a favorable vote has been given as provided in this chapter, he or she shall certify and give notice of the favorable vote to all producers and vintners whose names and addresses may be on file with the director.
Upon certification of the commission, the producer and vintner members and their alternate members who are then serving on the California Wine and Winegrape Improvement Program made effective by the director on August 21, 1984, shall become the initial members and alternate members of the commission and shall serve in accordance with the requirements of Section 74071.
Subsequent to the action taken pursuant to Section 74129, persons to be elected to the commission upon expiration of existing terms shall be selected pursuant to the nomination and election procedures established by the commission with the concurrence of the director.
Prior to the implementation referendum conducted by the director, the proponents of the commission shall deposit with the director the amount that the director deems necessary to defray the expenses in creating the commission, including, but not limited to, preparing the necessary producer and vintner lists and conducting the referendum.
Any funds remaining after paying expenses shall be returned to the proponents of the commission who deposited the funds with the director.
The commission may reimburse the proponents of the commission for any funds deposited with the director which were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [74151. - 74157.]
Prior to the beginning of each marketing season or as soon thereafter as possible, the commission shall establish an assessment rate for the marketing season.
The assessment rate shall be the same for producers and vintners. The assessment rate for producers shall not exceed 1 percent of the gross dollar value of winegrapes marketed by producers to vintners. The assessment rate for vintners shall not exceed 1 percent of the gross dollar value of winegrapes acquired by vintners from producers. If a producer sells winegrapes for a specified sum in a bona fide sale, the gross dollar amount of this sum is the gross dollar value of the winegrapes.
Any producer, or producer who is also a vintner, who contracts or otherwise arranges for the processing of his or her winegrapes and retains ownership of the processed product during the marketing season shall pay the producer assessment and the vintner assessment. The “weighted average producer returns per ton” by district as published in the most recent Final Grape Crush Report issued annually for the current marketing season by the department shall be used as the basis for determining product gross dollar value and the assessment.
This chapter shall not apply to winegrapes produced only for a producer’s home use or processed only for a vintner’s home use. However, any producer or vintner claiming this exemption shall file an affidavit with the commission establishing the manner in which the winegrapes are used. The commission shall then determine whether the affidavit should be approved.
Every producer and vintner subject to this chapter shall keep a complete and accurate record of their operations. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be preserved by producers and vintners for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the director from producers or vintners, and all lists of producers and vintners in the possession of the commission or the director are confidential and shall not be disclosed except when required in a judicial proceeding. Information on volume shipments, commodity value, and other related information which is required for reports to governmental agencies; financial reports made to the commission or aggregate sales and inventory information; and any other information which is requested from the commission excluding individual producer or vintner information, may be disclosed by the commission.
Any assessment levied by the commission, pursuant to this chapter, is a personal debt of every person so assessed and is due and payable in a time and manner prescribed by the commission. Failure of a vintner to collect the assessment from a producer shall not exempt the vintner from liability nor relieve the producer of the obligation to pay the assessment.
Any person who fails to file a return, or remit or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, 112 percent interest per month on the unpaid balance.
ARTICLE 7. Actions and Penalties [74171. - 74174.]
It is unlawful for any person to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission.
When engaged in the marketing, processing, or other activities related to wine or winegrapes, to fail or refuse to furnish the commission or its duly authorized agents, information concerning the name and address of the persons to whom winegrapes were delivered or from whom winegrapes have been received, and the quantity so delivered or received.
Secrete, destroy, or alter records required to be maintained under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its acts or determinations an informal hearing. Appeals from decisions of the commission may be made to the director. The determination of the director shall be subject to judicial review upon petition filed with the appropriate superior court. Pending disposition of any appeal and judicial review, the parties shall abide by the acts or determinations of the commission.
The commission may commence civil action and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and the obtaining of injunctive relief or specific performance regarding this chapter and the rules and regulations adopted pursuant to this chapter.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until there is full compliance and satisfaction of the judgment. Upon a favorable verdict for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Suspension or termination of this chapter in accordance with Article 8 (commencing with Section 74191) shall not result in any of the following:
Affecting, waiving, or termination of any right, duty, obligation, or liability which may have arisen or may thereafter arise in connection with this chapter.
Releasing, condoning, or dismissal of any violation of this chapter.
ARTICLE 8. Continuation or Suspension and Termination [74191. - 74196.]
Between July 1, 1991, and June 30, 1992, inclusive, the commission shall cause a referendum to be conducted among producers and vintners in the manner specified in Section 74122 to determine whether this chapter shall be reapproved and continued in effect. A favorable vote shall be found if the director determines from the referendum that a majority of the eligible producers, or vintners, or both, who voted in the referendum voted in favor of continuing the operations of this chapter. If the director finds that a favorable vote has been given to continue a joint producer-vintner commission, a producer commission, or a vintner commission, he or she shall so certify and this chapter or the appropriate portions thereof shall remain in effect. If the director finds that a favorable vote has not been given, he or she shall so certify and declare the operations of this chapter suspended upon expiration of the marketing season. No bond or security shall be required for any such referendum.
Following a favorable referendum conducted prior to June 30, 1992, a referendum shall be conducted by the commission every fifth year thereafter unless a referendum is conducted as a result of a petition pursuant to this article. In that case, the referendum shall be every fifth year following the industry petitioned referendum following procedures provided in this article.
Upon a finding by a two-thirds vote of the commission that this chapter has not tended to effectuate its declared purposes, the commission may recommend to the director that this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing season.
Alternatively, the director may be petitioned to suspend this chapter. The petition must be signed by 20 percent of the producers by number who produced not less than 20 percent of the volume of winegrapes in the immediately preceding marketing season and 20 percent of the vintners by number who acquired not less than 20 percent of the volume of winegrapes in the immediately preceding marketing season. The director shall hold a hearing on the petition after receiving it.
The director shall, upon receipt of the recommendation to suspend this chapter from the commission, or may, after holding the hearing on the petition to suspend this chapter, hold a referendum among the producers and vintners to determine if the commission shall be suspended. However, the director shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to effectuate its declared purposes.
The director shall establish a referendum period, which shall not be less than 10 days nor more than 60 days in duration. The director may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the referendum period, the director shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers and 40 percent of the total number of vintners from the lists established by the director participate in the referendum, the director shall suspend this chapter if he or she finds either of the following has occurred:
Sixty-five percent or more of the producers and vintners who voted in the referendum, voted in favor of suspension; the producers so voting marketed a majority of the total quantity of winegrapes marketed in the preceding marketing season by all of the producers who participated in the referendum; and the vintners so voting acquired a majority of the total quantity of winegrapes acquired in the preceding marketing season by all of the vintners who participated in the referendum.
A majority of the producers and vintners who voted in the referendum voted in favor of suspension; the producers so voting marketed 65 percent or more of the total quantity of winegrapes marketed in the preceding marketing season by all of the producers who voted in the referendum; and the vintners so voting acquired 65 percent or more of the total quantity of winegrapes acquired in the preceding marketing season by all of the vintners who voted in the referendum.
The director shall terminate the commission at the end of the current marketing season if the director finds that termination is requested in writing, within a 90-day period, by at least 51 percent of the eligible producers that are directly affected that market at least 51 percent of the volume of the product, and by at least 51 percent of the eligible vintners that are directly affected that acquire at least 51 percent of the volume of the product.
The person or persons originating the request shall file a written notice with the director in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the director.
The signatures to the petition requesting termination need not all be appended to one sheet of paper. Each person signing the petition shall add his or her signature and business address. If no business address is given, a designation of the place of business shall be given which will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension of this chapter, the operations of the commission shall be concluded and any and all funds remaining held by the commission and not required to defray the expenses of concluding and terminating the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to these persons, any funds shall be paid into an appropriate program conducted by the University of California or the California State University, another state agency, or a federal agency which deals with the purposes of this chapter. If no program exists, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of this chapter, the commission shall mail a copy of the notice of suspension to all producers and vintners affected by the suspension whose names and addresses are on file.
CHAPTER 12.5. California Wine Commission [74501. - 74696.]
ARTICLE 1. Declaration and General Provisions [74501. - 74508.]
The production and distribution of wine and wine-related products constitute an important industry of this state which provides substantial and necessary revenues for the state and employment for its citizens. It also furnishes an important food which benefits the public health and welfare.
The maintenance and expansion of the wine industry of California and of its local, national, and foreign markets is necessary to assure the consuming public of a continuous supply of these products and the maintenance of needed levels of income for those engaged in the wine industry in this state.
It is in the public interest that the public be made aware of accurate and scientific information relating to the beneficial qualities of wine and wine-related products.
The production and marketing of wine and wine-related products produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission or by any individual in accordance with this chapter or with the rules and regulations adopted under the chapter is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Fair Trade Act (Chapter 3 (commencing with Section 16900) of that Part 2), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade. Proof that any action complained of was done in compliance with this chapter shall be a complete defense to the action or proceeding.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of a particular agricultural industry, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who serve on the commission, the particular agricultural industry is tantamount to, and constitutes the public generally within the meaning of Section 87103 of the Government Code.
A commission form of administration created by this chapter is designed to deal with the broad fields of market development, marketing research, and production and processing research.
ARTICLE 2. Definitions [74521. - 74539.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Brandy” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of whole, sound, ripe grapes or from the residue thereof, distilled at not over 170 degrees proof.
“Commission” means the California Wine Commission.
“Director” means the Director of Food and Agriculture.
“Eligible volume” means the total tonnage of winegrapes processed in the preceding marketing season by vintners subject to this chapter.
“Grape concentrate” or “concentrate” means unfermented grape juice from which the major portion of the original water content has been removed.
“Grape juice” or “juice” means unfermented crushed grapes without solids containing the major portion of the original water content.
“Producer” and “grower” are synonymous and mean any person who produced winegrapes in the preceding marketing season. Producer also includes any person who receives winegrapes as payment for the use of his or her property in the production of winegrapes.
“Ex officio member” means a nonvoting member of the commission.
“High proof” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of fresh winegrapes or from the residue thereof.
“Market” means to sell, barter, trade, purchase, acquire, or otherwise distribute wine or wine-related products.
“Market development” includes, but is not limited to, trade promotion, public information, dissemination of information on health and social issues and other matters, and activities for the prevention, modification, or removal of trade barriers which restrict the free flow of wine and wine-related products to market and may include the presentation of facts to state, federal, or foreign governmental agencies on matters which affect this chapter.
“Market research” means any investigation, development, analysis, or implementation of information relating to the marketing of wine and wine-related products, including, but not limited to, trade practices, consumer trends, promotion, sales, and advertising.
“Marketing season” or “fiscal year” means the period beginning July 1 of any year and extending through June 30 of the following years.
“Must” means a mixture of unfermented crushed grapes, solid grape particles, and grape juice.
“Processing research” means research relating to the processing of winegrapes, including, but not limited to, the development of new wine-related products and uses for these products.
“Vintner” means a winegrower, as defined in Section 23013 of the Business and Professions Code, who holds a winegrower’s license issued by the Department of Alcoholic Beverage Control pursuant to Chapter 3 (commencing with Section 23300) of Division 9 of the Business and Professions Code, and who is engaged in producing must, grape juice, grape concentrate, wine, or products thereof, including high proof and brandy by processing winegrapes or field crushed must. A vintner who processes winegrapes in the preceding marketing season in a quantity of 100 tons or less is not subject to this chapter.
“Wine” means the product obtained by the fermentation of winegrapes or juice therefrom, with or without addition or abstracting, and includes any product made from winegrapes which is defined as a wine and permitted under Part III (commencing with Section 5381) of Subchapter F of Chapter 51 of Title 26 of the United States Code, and in the statutes of this state and regulations issued thereunder defining wine produced from grapes.
“Winegrapes” means grapes produced in this state which are intended to be converted from their fresh form into grape juice, grape concentrate, wine, or products thereof, including, but not limited to, high proof and brandy produced from winegrapes.
“Wine-related products” include, but are not limited to, must, grape juice, grape concentrate, wine, high proof, and brandy produced from winegrapes.
ARTICLE 3. California Wine Commission [74561. - 74576.]
There is in state government, the California Wine Commission. The commission shall be composed of 18 vintners and may include one public member.
Vintner members shall be elected by the industry at large and serve on the commission without reference to any county, district, or area of the state.
The public member may be appointed to the commission by the director from nominees recommended by the commission.
The director, and other appropriate individuals as determined by the commission, shall be ex officio members of the commission.
The director may require the commission to correct or cease any existing activity or function which is determined by the director not to be in the public interest or which is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make these corrections as required by the director, the director may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the director has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
Upon service of the written notice, the director shall notify the commission in writing of the specific acts which he or she determines are not in the public interest or are in violation of this chapter, the reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and may make recommendations that will make the activities or functions acceptable.
The commission or the director may bring an action for judicial relief from the director’s written notice or for noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction which may issue a temporary restraining order, permanent injunction, or other appropriate relief.
When the director is required to concur in a decision of the commission, he or she shall indicate his or her response to the commission within 15 working days from notification of the decision. The response may be a request that additional information be provided.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his or her duties and responsibilities pursuant to this chapter. However, the court may, if it finds that the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to that action.
Each member of the commission, except the ex officio members, shall have an alternate member to be elected in the same manner as the member. An alternate member shall, in the absence of the member of whom he or she is an alternate, serve in place of the member on the commission and have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or disqualification of a member, the alternate shall serve as a member on the commission until a successor is elected and has qualified.
Any vintner member and his or her alternate member shall be a person, or an employee representing a vintner, who has a financial interest in processing winegrapes for market. The qualifications of vintner members and alternate members shall be maintained during the entire term of office. Not more than one member and his or her alternate member shall be employed by or connected in a proprietary capacity with the same vintner.
The public member and his or her alternate member shall have all the rights, privileges, and powers of any other member of the commission. The public member shall not have any financial interest in the wine or winegrape industry.
The term of office of members and alternate members shall be for two years or until their successors have been elected and have qualified. However, of the first members of the commission, one-half of the vintner members and their alternate members shall serve for one year; and one-half of the vintner members and their alternate members shall serve for two years. The determination of the term of each member shall be made by lot. No member or alternate member shall serve more than four consecutive terms.
No less than 10 vintner members, including alternate members when acting in place of the members, shall constitute a quorum of the commission.
The vote of a majority of the members, or alternate members when acting in the place of the members, present at the meeting at which there is a quorum shall constitute the act of the commission.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state and shall be prima facie evidence of the truth of all statements therein.
The director or his or her representatives shall be notified and may attend meetings of the commission and any committee meetings of the commission.
No member of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission, except ex officio government members, and each member of a committee established by the commission who is a nonmember of the commission, may receive an amount not to exceed one hundred dollars ($100) per day, as established by the commission. This amount shall be paid for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission. Members shall also receive necessary traveling expenses and meal allowances, as approved by the commission.
All funds received from the assessments levied pursuant to this chapter or otherwise received by the commission shall be deposited in banks which the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the assets of the commission.
No member, alternate member, or any employee or agent of the commission, is personally liable for the contracts of the commission or for errors in judgment, mistakes or other acts, either of commission or omission, except for their own individual acts of dishonesty or crime. Liability is several and not joint, and no member, alternate member, or any employee or agent of the commission is liable individually for the default, act, or omission of any other member, alternate member, or any employee or agent of the commission.
ARTICLE 4. Powers and Duties of the Commission [74591. - 74608.]
The powers and duties of the commission shall include, but are not limited to, all of those contained in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, operating procedures, and orders for carrying out this chapter, including appeals from any bylaws, rules, regulations, operating procedures, or orders of the commission.
The commission may administer and enforce this chapter and do and perform all actions and exercise all powers incidental to, in connection with, or deemed reasonably necessary for, proper or advisable effectuation of this chapter, including, but not limited to, entering into contracts for services with public and private agencies which are deemed necessary by the commission to carry out this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president, and other personnel, including legal counsel, necessary to carry out this chapter. If the person engages in any conduct which the director determines is not in the public interest or which is in violation of this chapter, the director shall notify the commission of the conduct and request that corrective action and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission.
The commission may establish offices, incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the director. A summary of the audit shall be made a part of an annual report to all vintners, copies of which shall also be submitted to the Legislature and the department. In addition, the director may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may engage in market development and market research through plans and programs to enhance the sale of California wine and wine-related products for the purpose of maintaining existing markets and creating new and larger domestic and foreign markets, and to educate and instruct the public with respect to the uses and value of California wine and wine-related products. However, any plans and programs so developed and conducted shall not be directed towards a particular private brand or trade name, although private brands and trade names may be used in wine tastings and other similar programs authorized by the commission. In addition, the plans and programs shall make no use of false or unwarranted claims on behalf of California wine or wine-related products, nor disparage the quality, value, sale, or use of any commodity.
The commission may accept contributions of private, state, or federal funds that may be available for these purposes, and may allocate funds by contract or agreement to other persons or to state or federal agencies conducting this research.
The commission may undertake appropriate research relating to the production and processing of wine and winegrapes, including the development of new wine-related products and uses for these products.
The commission may publish and distribute bulletins or other communications relating to the California wine and wine-related products industries.
The commission may establish an assessment rate to defray operating costs of the commission.
The commission may establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the director prior to disbursement of funds, except for disbursements made pursuant to Section 74596.
The commission shall submit to the director, for his or her concurrence, an annual statement of contemplated activities authorized pursuant to this chapter.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The director may require that any contract in which the commission is a party be submitted to him or her for concurrence prior to the commission entering into the contract. If the director requires the submission of a contract and does not concur in that contract, he or she shall hold a public hearing within 14 days of the initial decision not to concur. In the notice of the hearing, the director shall present a written explanation of his or her decision. The director shall make a final decision on whether or not to concur in the contract within 30 days of the hearing. The contract may not be executed from the time that the director makes the intial decision not to concur to the time of the final decision.
ARTICLE 5. Implementation and Voting Procedures [74621. - 74629.]
This chapter, except as necessary to conduct an implementation referendum, shall not become operative until the director finds, in a referendum conducted by him or her, or a person designated by the director, that a favorable vote has been given pursuant to this article.
Not later than April 1, 1987, the director shall establish a list of vintners who are eligible to vote on the implementation of this chapter. Eligibility shall be based on volume processed in the immediately preceding marketing season. In establishing the list, the director may require producers, vintners, county agricultural commissioners, and others to submit the names and mailing addresses of all vintners. The director also may require that the information provided include the quantity of winegrapes sold to vintners and the quantity of winegrapes processed by vintners or, in the alternative, may establish procedures for receiving the information at the time of the referendum. The request for this information shall be in writing. The information required by the director shall be filed within 30 days following receipt of the written notice.
Any vintner whose name does not appear on the director’s list may have his or her name included on the list by filing with the director a signed statement identifying himself or herself as a vintner. Failure to be on the list does not exempt the vintner from paying assessments under this chapter.
In determining whether this chapter shall become operative, the director shall find that at least 40 percent of the total number of vintners from the list established by the director participated in the referendum, and that either one of the following has occurred:
Sixty-five percent or more of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting processed a majority of the volume of winegrapes in the preceding marketing season by all the vintners who voted in the referendum.
A majority of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting processed 65 percent or more of the volume of winegrapes in the preceding marketing season by all the vintners who voted in the referendum.
The director shall establish a period in which to conduct the referendum which shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures to conduct the referendum. If the initial period established is less than 60 days, the director may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the director finds that a favorable vote has not been given as provided in this chapter, he or she shall certify and declare this chapter inoperative. If the director finds that a favorable vote has been given as provided in this chapter, he or she shall certify and give notice of the favorable vote to all vintners whose names and addresses may be on file with the director.
Upon certification of the commission, the vintner members and their alternate members who are then serving on the California Wine and Winegrape Improvement Program made effective by the director on August 21, 1984, shall become the initial members and alternate members of the commission and shall serve in accordance with the requirements of Section 74569.
Subsequent to the first election of commissioners under this chapter, persons to be elected to the commission shall be selected pursuant to the nomination and election procedures established by the commission with the concurrence of the director.
Prior to the implementation referendum conducted by the director, the proponents of the commission shall deposit with the director the amount that the director deems necessary to defray the expenses in creating the commission, including, but not limited to, preparing the necessary vintner list and conducting the referendum.
Any funds remaining after paying expenses shall be returned to the proponents of the commission who deposited the funds with the director.
The commission may reimburse the proponents of the commission for any funds deposited with the director which were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [74651. - 74661.]
Prior to the beginning of each marketing season or as soon thereafter as possible, the commission shall establish an assessment rate for the marketing season.
Unless approved by a two-thirds vote of the commission, the assessment rate shall not exceed 1 percent of the gross dollar value of winegrapes processed by vintners.
Prior to the beginning of each marketing season, the commission may establish a voluntary minimum assessment rate applicable to vintners who process winegrapes in the marketing season in a quantity of 100 tons or less and who are exempt from paying the assessment established pursuant to Section 74651. Notwithstanding any other provisions of this chapter, any vintner who voluntarily pays the minimum assessment shall be granted the same rights and privileges as vintners processing over 100 tons in that marketing season.
Any vintner who is also a producer who processes winegrapes shall pay the assessment on the winegrapes. The “weighted average producer returns per ton” by district as published in the most recent Final Grape Crush Report issued annually for the current marketing season by the department shall be used as the basis for determining product gross dollar value and the assessment on the winegrapes where no sale is involved.
Unless otherwise exempted by this chapter, the assessment provided for in this article shall be levied on vintners and vintners who are also producers who engage in the act of processing winegrapes into must for the purpose of making grape juice, grape concentrate, wine, or products thereof, including high proof or brandy or processing field crushed must for the purpose of making grape juice, grape concentrate, wine, or products thereof, including high proof or brandy.
This chapter does not apply to winegrapes processed only for a vintner’s home use. However, any vintner claiming this exemption shall file an affidavit with the commission establishing the manner in which the winegrapes are used. The commission shall then determine whether the exemption applies.
Every vintner shall keep a complete and accurate record of all winegrapes processed. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be preserved by the vintner for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the director from producers or vintners, and all lists of vintners in the possession of the commission or the director are confidential and shall not be disclosed except when required in a judicial proceeding. Information on volume shipments, commodity value, and other related information which is required for reports to governmental agencies; financial reports made to the commission or aggregate sales and inventory information; and any other information which is requested from the commission, may be disclosed by the commission. In no event may individual producer or vintner information be disclosed by the commission.
Any assessment levied by the commission, pursuant to this chapter, is a personal debt of every person so assessed and is due and payable in a time and manner prescribed by the commission.
Any person who fails to file a return, or remit or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, 112 percent interest per month on the unpaid balance.
Any vintner who processes winegrapes into must, grape juice, or grape concentrate for the manufacture of nonalcoholic beverages other than nonalcoholic wine may apply to the commission for either an exemption from the assessment due pursuant to this chapter or for a refund of the assessment on that portion of his or her production used in the manufacture of nonalcoholic beverages other than nonalcoholic wine.
In order to be eligible for the exemption or refund, the vintner shall file an affidavit with the commission attesting that the must, grape juice, or grape concentrate was, in fact, used for the manufacture of nonalcoholic beverages other than nonalcoholic wine. The commission shall render a determination on the claim. All approved claims shall be subject to verification through an independent audit of the claimant’s business records by the commission or its duly authorized agent.
Any vintner receiving an exemption or refund pursuant to Section 74658, shall, in addition to the requirements of Section 74654, maintain sales invoices and any other business documents specified by the commission as necessary to verify the claim. The records shall be preserved by the vintner for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
No refund pursuant to Section 74658 shall be approved by the commission after two years from the date the assessment was due. Failure to file a claim within the time prescribed in this section constitutes a waiver of all demands for a refund against the commission.
Within 30 days, after disallowing any claim in whole or in part, the commission shall serve written notice of its action on the claimant.
ARTICLE 7. Actions and Penalties [74671. - 74674.]
It is unlawful for any person to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission.
When engaged in the marketing, processing, or other related activity of wine or wine-related products, to fail or refuse to furnish the commission or its duly authorized agents information concerning the name and address of the persons from whom winegrapes have been received.
Secrete, destroy, or alter records required to be maintained under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its acts or determinations an informal hearing. Appeals from decisions of the commission may be made to the director. The determination of the director shall be subject to judicial review upon petition filed with the appropriate superior court. Pending disposition of any appeal and judicial review, the parties shall abide by the acts or determinations of the commission.
The commission may commence civil action and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and the obtaining of injunctive relief or specific performance regarding this chapter and the rules and regulations adopted pursuant to this chapter.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until there is full compliance and satisfaction of the judgment. Upon a favorable verdict for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Suspension or termination of this chapter in accordance with Article 8 (commencing with Section 74691) shall not result in any of the following:
Affecting, waiving, or termination of any right, duty, obligation, or liability which may have arisen or may thereafter arise in connection with this chapter.
Releasing, condoning, or dismissal of any violation of this chapter.
ARTICLE 8. Continuation or Suspension and Termination [74691. - 74696.]
On or before June 30, 1990, the commission shall cause a referendum to be conducted among vintners in the manner specified in Section 74622 to determine whether this chapter shall be reapproved and continued in effect. In determining whether this chapter is reapproved, the director shall find that at least 40 percent of the total number of vintners from the list established by the director participated in the referendum, and that either one of the following has occurred:
Sixty-five percent or more of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting processed a majority of the volume of winegrapes in the preceding marketing season by all the vintners who voted in the referendum.
A majority of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting processed 65 percent or more of the volume of the winegrapes in the preceding marketing season by all the vintners who voted in the referendum.
If the director finds that a favorable vote has been given to continue the commission, he or she shall so certify and this chapter or the appropriate portions thereof shall remain in effect. If the director finds that a favorable vote has not been given, he or she shall so certify and declare the operations of this chapter suspended upon expiration of the marketing season. No bond or security shall be required for any such referendum.
Following a favorable referendum conducted prior to June 30, 1990, a referendum shall be conducted by the commission every fifth year thereafter unless a referendum is conducted as a result of a petition pursuant to this article. In that case, the referendum shall be every fifth year following the industry petitioned referendum following procedures provided in this article.
Upon a finding by a two-thirds vote of the commission that this chapter has not tended to effectuate its declared purposes, the commission may recommend to the director that this chapter be suspended.
Alternatively, the director may be petitioned to suspend this chapter. The petition shall be signed by 20 percent of the vintners by number who processed not less than 20 percent of the volume of winegrapes in the immediately preceding marketing season. The director shall hold a hearing on the petition after receiving it.
The director shall, upon receipt of the recommendation to suspend this chapter from the commission, or may, after holding the hearing on the petition to suspend this chapter, hold a referendum among the vintners to determine if the commission shall be suspended. However, the director shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to effectuate its declared purposes.
The director shall establish a referendum period, which shall not be less than 10 days nor more than 60 days in duration. The director may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the referendum period, the director shall tabulate the ballots filed during the period. If at least 40 percent of the total number of vintners from the list established by the director participate in the referendum, the director shall suspend this chapter if he or she finds either of the following has occurred:
Sixty-five percent or more of the vintners who voted in the referendum, voted in favor of suspension; and the vintners so voting processed a majority of the total quantity of winegrapes processed in the preceding marketing season by all of the vintners who participated in the referendum.
A majority of the vintners who voted in the referendum voted in favor of suspension; and the vintners so voting processed 65 percent or more of the total quantity of winegrapes processed in the preceding marketing season by all of the vintners who voted in the referendum.
The director shall terminate the commission at the end of the current marketing season if the director finds that termination is requested in writing, within a 90-day period, by at least 51 percent of the eligible vintners that are directly affected that process at least 51 percent of the volume of the product.
The person or persons originating the request shall file a written notice with the director in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the director.
The signatures to the petition requesting termination need not all be appended to one sheet of paper. Each person signing the petition shall add his or her signature and business address. If no business address is given, a designation of the place of business shall be given which will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension of this chapter, the operations of the commission shall be concluded and any and all funds remaining held by the commission and not required to defray the expenses of concluding and terminating the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to these persons, any funds shall be paid into an appropriate program conducted by the University of California or the California State University, another state agency, or a federal agency which deals with the purposes of this chapter. If no program exists, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of this chapter, the commission shall mail a copy of the notice of suspension to all vintners affected by the suspension whose names and addresses are on file.
CHAPTER 12.6. California Grape Rootstock Improvement Commission [74701. - 74796.]
ARTICLE 1. Declaration and General Provisions [74701. - 74707.]
The production of grape rootstock constitutes an important industry of this state that not only provides substantial and necessary revenues for the state and employment for its citizens, but also furnishes essential food vital to the public health and welfare.
The maintenance of the grape rootstock industry of California is necessary to assure the consuming public of a continuous supply of good fruit for the table, raisins, and wine grapes, and establishes consistent and needed levels of income for those engaged in the industry.
The successes that the grape rootstock industry has enjoyed have come in part through a commitment to industry funded research, which has led to significant improvements in the quality and variety of the grapes and grape products available to consumers. The establishment of the commission is intended to enhance this research effort and move the grape rootstock industry toward its potential, resulting in increased consumer value and enhanced grower returns.
The production and marketing of grape rootstock produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, or by any individual commission board member in accordance with this chapter or with regulations adopted under this chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of the particular agricultural industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are elected or appointed to the commission, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
A commission form of administration created by this chapter is designed to provide those engaged in the production and marketing of grape rootstock the opportunity to avail themselves of the benefits of collective action in the broad field of grape rootstock research necessary to achieve the purposes stated herein.
ARTICLE 2. Definitions [74710. - 74726.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Bearing acreage” means a planting grape rootstock three years or older from which cuttings can be taken.
“Board member” means a nursery owner or representative of an owner elected pursuant to Section 74778.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Grape Rootstock Improvement Commission.
“Ex officio member” means a nonvoting member of the commission.
“Grafted” means the art of joining parts of plants together in such a manner as they will unite and continue their growth as one plant.
“Grafted grape rootstock” means a rootstock that has been grafted with a fruiting grape variety.
“Grape rootstock” means the rootstock portion of grapevines grown in California as a single species or hybrid combination in the family Vitaceae.
“Grape rootstock nursery” or “nursery” means any person in this state which operates under a California state nursery license and grows grape rootstock for commercial use or distribution.
“Grape rootstock research” means any cultural and biological research relating to grape rootstock.
“Invoicable unit” means any rootstock cutting, or rooted rootstock cutting, or grafted grape rootstock that is used or distributed by a nursery for commercial purposes.
“Distribute” means to sell or otherwise transfer any rootstock cutting, rooted rootstock cutting, or grafted grape rootstock for commercial purposes.
“Marketing year” or “fiscal year” means the period beginning April 1 of any year and extending through the last day of March of the next year.
“Marketing year 1992–93” means the period commencing August 1, 1992, to March 31, 1993, inclusive.
“Person” means an individual, partnership, limited liability company, corporation, firm, company, or other entity doing business in California.
“Rooted rootstock cutting” means a rootstock cutting with roots destined to become a grafted unit.
“Rootstock” means the part of the graft combination which is to become the root system.
“Rootstock cutting” means a cutting of a rootstock variety that is at least 6 inches in length destined to become a grafted unit.
ARTICLE 3. The California Grape Rootstock Improvement Commission [74730. - 74745.]
There is in state government the California Grape Rootstock Improvement Commission. The commission shall be composed of nine grape rootstock nursery owners or representatives who shall be called members.
The director and other appropriate individuals, as determined by the commission, shall be ex officio members of the commission.
The director may require the commission to correct or cease any activity or function which is determined by the director not to be in the public interest or which is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make corrections required by the director, the director may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions, as required by the director, has been accomplished by the commission.
Any action of the commission in violation of the written notice is without legal force or effect. The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
At the same time the written notice is provided to the commission, the director shall notify the commission in writing of the specific acts that the director determines are not in the public interest or are in violation of this chapter, the director’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and the director’s recommendations with respect to any action that will make the activities or functions acceptable.
The commission or the director may bring an action for judicial relief from the director’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other appropriate relief.
When the director is required to concur in a decision of the commission, the director shall concur, refuse to concur, or request additional information from the commission within 15 working days from the date the director receives notification of the decision.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to that action.
The director shall operate in the most efficient, cost-effective manner possible in carrying out his or her duties and responsibilities pursuant to this chapter.
The director shall notify the commission of oversight activities and costs that will result in expenses reimbursable by the commission.
The commission shall inform the director which of these activities it will engage in that require oversight and reimbursement of expenses.
The director is not required to provide notification to the commission pursuant to paragraph (1) of subdivision (a) if the director determines that omission of notification is necessary to protect the confidentiality of the parties with respect to any investigation into the activities of the employees of the commission or the actions of the commission.
Each board member, except ex officio members, shall have an alternate board member selected by the board member. An alternate member shall, in the absence of the member for whom he or she is an alternate, serve in place of the board member and shall have and be able to exercise all of the rights, privileges, and powers of the member when serving on the commission. If the status of a member changes, thereby making a board member ineligible to serve, or in the event of death, removal, resignation, or disqualification of a member, the alternate member shall act as a board member until a qualified successor is elected or appointed. The commission may not have more than one board member and one alternate from one grape rootstock nursery.
Any vacancy on the commission occurring by the failure of a board member to continue in his or her position due to a change in his or her status, thereby making the individual ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled with a qualified individual for the unexpired portion of the term by a majority vote of the remaining members of the commission.
Any vacancy on the commission occurring by the failure of an alternate member to continue in his or her position due to a change in his or her status, thereby making the individual ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled with a qualified individual pursuant to Section 74735.
Any board member and his or her alternate member on the commission shall be an owner of a grape rootstock nursery or representative of an owner who has a financial interest in producing, or causing to be produced, grape rootstock for commercial use or distribution. Qualifications of grape rootstock nursery board members and their alternate members shall be maintained during their entire term of office.
The term of office of all board members and alternate board members of the commission, except ex officio members, is three years from the beginning of the marketing season in the year of their election and until qualified successors are elected.
Notwithstanding Section 74738, the initial term of members and alternates shall be divided by lot into three terms of one year, three terms of two years, and three terms of three years. At the end of each of these initial terms, the terms of office of all board members and alternates shall be three years. Terms of office of each board member and alternate board member of the commission shall be limited to three consecutive terms. However, members and alternates who serve initial one-year and two-year terms shall be eligible for three additional three-year terms.
The commission is hereby declared and created a corporate body. It may sue and be sued, enter into contracts, adopt a corporate seal, and possess all of the powers of a corporation. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission is seven voting members of the commission. The vote of a majority of the board members or alternate members present at a meeting at which there is a quorum shall constitute the act of the commission.
The director or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission.
No board member or alternate member or member of a committee established by the commission who is a nonmember of the commission shall receive any compensation. Each board member or each alternate member serving in place of a board member, except ex officio members who are state officers or employees, and each member of a committee established by the commission who is not a board member or alternate member, may receive per diem not to exceed one hundred dollars ($100) per day, as established by the commission. In addition, board members and alternate members of the commission and members of committees established by the commission shall be reimbursed for actual and necessary travel expenses under the rules of the Department of Human Resources. The per diem and reimbursement for travel expenses shall be paid to those members for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as provided by the commission.
All funds received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks that the commission may designate and shall be disbursed by order of the commission through an agent or agents designated by the commission for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No board member, alternate member, employee, or agent of the commission is responsible individually in any way to any nursery or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as a principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No board member, alternate member, employee, or agent of the commission, is responsible individually for any act or omission of any other member, alternate member, employee, or agent of the commission. Liability is several and not joint, and no member, alternate member, employee, or agent of the commission is liable for the default of any other member, alternate member, employee, or agent of the commission.
ARTICLE 4. Powers and Duties of the Commission [74750. - 74768.]
The powers and duties of the commission include, but are not limited to, all of those contained in this article.
The commission may adopt, amend, and repeal regulations and operating procedures necessary to carry out this chapter, including regulations governing appeals from actions taken by the commission pursuant to any of its regulations or operating procedures.
The commission may administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, the proper or advisable effectuation of this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter.
The commission may retain a management firm or the staff from any board, commission, or agency of the state or federal government to perform the functions prescribed by this section under the control of the commission. If any person employed by the commission engages in any conduct that the director determines is not in the public interest or that is in violation of this chapter, the director shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both board members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the director. A summary of the audit shall be reported to all grape rootstock nurseries and a copy of the summary shall also be submitted to the department. In addition, the director may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect this chapter, to the extent permitted by federal law.
The commission may make, in its name, contracts to receive or render services in formulating and conducting plans and programs and any other contracts or agreements that the commission deems necessary for carrying out this chapter.
The commission may conduct, and contract with others to conduct, production research, including the study, analysis, accumulation, and dissemination of information obtained from that research or otherwise, regarding this chapter.
The commission may accept contributions or matching private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies, for purposes of carrying out this chapter.
The commission may publish and distribute, without charge, bulletins or other communications for the dissemination of information to grape rootstock nurseries.
The commission shall establish an assessment rate to defray the operating costs of the commission.
The commission shall adopt an annual budget according to accepted accounting practices. The director shall concur in the adoption of the budget prior to the encumbrance of funds, except for encumbrances necessary to pay the compensation of employees of the commission.
The commission shall submit to the director, for his or her concurrence, an annual statement of contemplated activities authorized pursuant to this chapter.
All proprietary information obtained by the commission or the secretary from any source, including all lists of grape rootstock nurseries, shall be confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter. Information on volume shipments, crop value, and any other related information required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
ARTICLE 5. Implementation and Voting Procedures [74770. - 74779.]
Within 30 days of the effective date of this chapter, the director shall establish a list of grape rootstock nurseries eligible to vote on the implementation of this chapter. In establishing the list, the director may require that all grape rootstock nurseries submit the names and mailing addresses of all grape rootstock nurseries. The director also may require that the information provided include the quantity of grape rootstock produced by each nursery or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 74771. The request for the information shall be in writing, and the requested information shall be filed within 10 days following receipt of the request.
Any grape rootstock nursery whose name does not appear upon the appropriate list may have his or her name placed on the list by filing with the director a signed statement identifying himself or herself as a nursery owner or representative of a nursery owner. The absence of an owner’s name from the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
Proponents and opponents of the commission may contact nurseries on the lists in a form and manner prescribed by the director if all expenses associated with the contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the director finds, in a referendum vote conducted by the director that at least 40 percent of the total number of grape rootstock nurseries from the list established by the director pursuant to this article have participated and that either of the following has occurred:
Sixty-five percent of the nurseries that voted in the referendum voted in favor of this chapter, and the nurseries so voting marketed a majority of the total quantity of grape rootstock in the preceding marketing year by all of the nurseries that voted in the referendum.
A majority of the grape rootstock nurseries that voted in the referendum voted in favor of this chapter, and the nurseries so voting marketed 65 percent or more of the total quantity of grape rootstock in the preceding marketing year by all of the nurseries that voted in the referendum.
The director shall use invoicable units or grape rootstock acreage in calculating the volume voted pursuant to Section 74771.
The director shall establish a period to conduct the referendum which shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures that may be necessary to conduct the referendum. If the initial period established is less than 60 days, the director may extend the period to not more than 60 days.
The failure of a grape rootstock nursery to receive a ballot shall not invalidate a referendum.
If the director finds that a favorable vote has been given as provided in Section 74771, the director shall certify and give notice of the favorable vote to all affected nurseries whose names and addresses are on file with the director.
If the director finds that a favorable vote has not been given as provided in Section 74771, the director shall certify and declare this chapter inoperative. The director may conduct another implementation referendum vote one or more years after the previous vote has been taken.
Upon certification of the commission, the director shall contact all grape rootstock nurseries by mail, or call meetings of nurseries, for the purpose of nominating and electing persons to the commission. All nurseries on the director’s list shall be given written notice of any election meetings at least 10 days prior to the meeting date. To be eligible for election to the commission, nominee nursery owners or nominee representatives of nursery owners shall present to the director a nomination petition with the signatures of at least three eligible grape rootstock nursery owners or representatives.
Subsequent to the first election of board members pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures which are established by the commission with the concurrence of the director.
Prior to the referendum vote conducted by the director pursuant to Section 74771, the proponents of the commission shall deposit with the director the amount that the director determines necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum.
Any funds not used in carrying out Section 74771 shall be returned to the proponents of the commission who deposited the funds with the director.
Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the director that were used in carrying out Section 74771 and for any legal expenses and other costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [74785. - 74788.]
The commission shall establish the assessment for the following marketing year not later than April 1 of each year, or as soon thereafter as is possible.
The assessment shall not exceed fifty dollars ($50) per bearing acreage of grape rootstock and two cents ($0.02) per invoicable unit of grape rootstock and grafted grape rootstock used or distributed for commercial purposes. The commission may establish different invoicable unit assessment rates for rootstock cuttings, rooted rootstock cuttings, and grafted grape rootstocks, provided that the rates do not exceed the maximum assessment authorized by this subdivision.
A fee greater than the amount specified in subdivision (b) may not be charged unless approved pursuant to procedures specified in Section 74771.
Every nursery, including nurseries exempt from the payment of assessments, shall keep a complete and accurate record of its acreage of grape rootstock and its grape rootstock used or distributed for commercial purposes. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be retained by the nursery for five years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
Any assessment which is levied pursuant to this chapter is a personal debt of every nursery so assessed.
Any nursery that fails to file a return or pay any assessment within the time required by the commission shall pay the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, pay 112 percent interest per month on the unpaid balance.
ARTICLE 7. Actions and Penalties [74790. - 74793.]
It is unlawful for any person to do any of the following:
Refuse to render a report, statement, or record required by the commission.
Furnish a false report, statement, or record required by the commission.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall adopt procedures to grant individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the director. The determination of the director shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for obtaining injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any regulation of the commission, including, but not limited to, the nonpayment of assessments or the intentional submission of false information to the commission. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business involving grape rootstock until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it is entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
The suspension or termination of this chapter shall not affect or waive any right, duty, obligation, or liability which has arisen or which may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [74795. - 74796.]
The commission shall conduct a referendum pursuant to Section 74771 no less frequently than every five years, commencing in 1998.
To dissolve the commission, a simple majority vote of the nine board members is required, or the vote of five of a quorum of members present and voting.
CHAPTER 12.7. California Winegrape Growers Commission [74801. - 74996.]
ARTICLE 1. Declaration and General Provisions [74801. - 74808.]
The production and distribution of winegrapes constitute an important industry of this state which provides substantial and necessary revenues for the state and employment for its citizens. It also furnishes an important food which benefits the public health and welfare.
The maintenance and expansion of the winegrape industry of California and of its local, national, and foreign markets is necessary to assure the consuming public of a continuous supply of these products and needed levels of income for those engaged in the winegrape industry in this state.
It is in the public interest that the public be made aware of accurate and scientific information relating to the beneficial qualities of winegrapes and winegrape products.
The production and marketing of winegrapes and winegrape products produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission nor by any individual in accordance with this chapter or with the rules and regulations adopted under the chapter is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Fair Trade Act (Chapter 3 (commencing with Section 16900) of that Part 2), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade. Proof that any action complained of was done in compliance with this chapter shall be a complete defense to the action or proceeding.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of a particular agricultural industry, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who serve on the commission, the particular agricultural industry is tantamount to, and constitutes the public generally within the meaning of Section 87103 of the Government Code.
The winegrape industry in this state is expanding. Opportunity exists for continued growth and expansion of the industry by creating new markets in areas of the state and the country. The success of an expansion program is uniquely dependent upon effective market development, promotion, and research because the creation of new markets is essentially a matter of educating and informing people of the use, nutritional value, and availability of a previously unrecognized food. The expansion of the winegrape industry also provides an important source of jobs for many people in this state, a high proportion of whom reside in historically depressed areas of the state, and serves to ensure the preservation of an agrarian society.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of winegrapes the opportunity to avail themselves of the benefits of collective action in the broad fields of market development, marketing research, and production and processing research necessary to achieve the purposes stated herein.
ARTICLE 2. Definitions [74821. - 74840.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Brandy” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of whole, sound, ripe grapes or from the residue thereof, distilled at not over 170 degrees proof.
“Commission” means the California Winegrape Growers Commission.
“Local commission” means any local commission created pursuant to this chapter.
“Grape concentrate” or “concentrate” means unfermented grape juice from which the major portion of the original water content has been removed.
“Grape juice” or “juice” means unfermented crushed grapes without solids containing the major portion of the original water content.
“Person” means any individual, firm, corporation, association, or other entity doing business in California.
“Producer” and “grower” are synonymous and, unless otherwise specified pursuant to Section 74922.1, mean any person who produced and marketed winegrapes in the preceding marketing season in a quantity of more than 25 tons. Unless otherwise exempted, producer also includes any person who receives winegrapes as payment for the use of his or her property in the production of winegrapes.
“Producer districts” shall consist of the following:
District 1 consists of Lake, Solano, Mendocino, Sonoma, Marin, and Napa Counties.
District 2 consists of the City and County of San Francisco, Santa Barbara, San Luis Obispo, Ventura, Monterey, San Benito, Santa Clara, Santa Cruz, Alameda, San Mateo, and Contra Costa Counties.
District 3 consists of Butte, Colusa, Glenn, Sacramento, Shasta, Tehama, Yolo, Yuba, Trinity, Siskiyou, Modoc, Lassen, Plumas, Sierra, Sutter, Humboldt, and Del Norte Counties, and that portion of San Joaquin County north of State Highway 4.
District 4 consists of Merced, Stanislaus, Mariposa, Calaveras, Amador, El Dorado, Placer, Nevada, and Tuolumne Counties, and that portion of San Joaquin County south of State Highway 4.
District 5 consists of Fresno, Alpine, Mono, Inyo, and Madera Counties, and that portion of Kings and Tulare Counties north of Nevada Avenue (Avenue 192).
District 6 consists of Kern County and that portion of Kings and Tulare Counties south of Nevada Avenue (Avenue 192).
District 7 consists of Los Angeles, Orange, Riverside, San Bernardino, Imperial, and San Diego Counties.
“Producer region,” for the purpose of establishing and operating a local commission, shall consist of one or more grape crush report districts.
“Ex officio member” means a nonvoting member of the commission.
“Handler” means any person engaged in the marketing of winegrapes or winegrape products that the person has produced, purchased, or acquired from a producer, or is marketing on behalf of a producer whether as owner, agent, employee, broker, processor, or otherwise.
“High proof” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of fresh winegrapes or from the residue thereof.
“Market” means to sell, barter, trade, purchase, acquire, or otherwise distribute wine, winegrapes, or winegrape products.
“Market development” includes, but is not limited to, trade promotion, public information, dissemination of information on health and social issues and other matters, and activities for the prevention, modification, or removal of trade barriers which restrict the free flow of winegrape products to market and may include the presentation of facts to state, federal, or foreign governmental agencies on matters which affect this chapter.
“Market research” means any investigation, development, analysis, or implementation of information relating to the marketing of winegrapes and winegrape products including, but not limited to, trade practices, consumer trends, promotion, sales, and advertising.
“Marketing season” or “fiscal year” means the period beginning July 1 of any year and extending through June 30 of the following years.
“Must” means a mixture of unfermented crushed grapes, solid grape particles, and grape juice.
“Processing” means any processing of winegrapes for the purpose of making must, grape juice, grape concentrate, wine, winegrape products, or products thereof, including high proof brandy.
“Production research” means research relating to the production and processing of winegrapes, including, but not limited to, the development of new winegrape products and uses for these products.
“Vintner” means a winegrower, as defined in Section 23013 of the Business and Professions Code, who holds a winegrower’s license issued by the Department of Alcoholic Beverage Control pursuant to Chapter 3 (commencing with Section 23300) of Division 9 of the Business and Professions Code, and who is engaged in producing must, grape juice, grape concentrate, wine, or products thereof, including high proof and brandy by processing winegrapes or field crushed must.
“Wine” means the product obtained by the fermentation of winegrapes or juice therefrom, with or without addition or abstracting, and includes any product made from winegrapes which is defined as a wine and permitted under Part III (commencing with Section 5381) of Subchapter F of Chapter 51 of Title 26 of the United States Code, and in the statutes of this state and regulations issued thereunder defining wine produced from grapes.
“Winegrapes” means grapes produced in this state which are intended to be converted from their fresh form into grape juice, grape concentrate, wine, or products thereof, including, but not limited to, high proof and brandy produced from winegrapes.
“Winegrape products” include, but are not limited to, must, grape juice, grape concentrate, wine, high proof, and brandy produced from winegrapes.
ARTICLE 3. California Winegrape Growers Commission [74861. - 74877.]
There is in state government, the California Winegrape Growers Commission. The commission shall be composed of 18 producers and one public member.
Producers within District 7 shall elect one producer member, producers within Districts 2, 3, 4, and 6 shall each elect two producer members, producers within District 5 shall elect four producer members, and producers within District 1 shall elect five producer members to serve on the commission. Alternate producer members shall be elected in the same manner. Each producer member and alternate producer member shall be elected from the district in which he or she produces the greatest portion of his or her winegrape tonnage.
The public member may be appointed to the commission by the secretary from nominees recommended by the commission.
The secretary, and other appropriate individuals as determined by the commission, shall be ex officio members of the commission.
There are, in state government, local commissions for producer regions. The producers in any producer region of this state may, pursuant to this chapter, establish a local commission composed of not less than five and not more than 10 producers and may include one public member. The provisions of this chapter that are applicable to the commission, except Sections 74828, 74861, 74862, 74867, 74871, 74922, 74923, 74926, 74927, 74928, and 74951, shall apply to any local commission established and certified as operative pursuant to this chapter regardless of the certification of the commission.
A producer member who produces more than 25 tons of winegrapes in a producer region shall be eligible to serve on the local commission in that producer region.
A public member may be appointed to the local commission by the secretary from nominees recommended by the local commission.
The secretary, and other appropriate individuals as determined by the local commission, shall be ex officio members of the local commission.
There may be an alternate member for each member of the local commission.
The name of a local commission shall contain the words “local commission” and shall identify the producer region represented by the local commission. No local commission shall use the term “California Winegrape Growers Commission” as part of its name.
Periodically, the number of producer members and their respective alternate members serving on the commission from any district shall be reapportioned in a manner that assures representation in accordance with the value of winegrapes produced in each district. However, no district shall have less than one member nor more than five members on the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make these corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Any action of the commission in violation of the written notice is without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts which he or she determines are not in the public interest or are in violation of this chapter, the reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and may make recommendations that will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction which may issue a temporary restraining order, permanent injunction, or other appropriate relief.
When the secretary is required to concur in a decision of the commission, the secretary shall concur, refuse to concur, or request additional information from the commission within 15 working days from notification of the decision.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary has acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for the payment of the secretary’s legal costs with regard to that action.
The secretary shall operate in the most efficient, cost-effective manner possible in carrying out his or her duties and responsibilities pursuant to this chapter.
The secretary shall notify the local commissions of oversight activities and costs that will result in expenses reimbursable by the local commissions.
The local commissions shall inform the secretary which of these activities they will engage in that require oversight and reimbursement of expenses.
The secretary is not required to provide notification to the local commissions pursuant to paragraph (1) of subdivision (a) if the secretary determines that omission of notification is necessary to protect the confidentiality of the parties with respect to any investigation into the activities of the employees of the commission or the actions of the commission.
Each member of the commission, except the ex officio members, shall have an alternate member to be elected in the same manner as the member. An alternate member shall, in the absence of the member of whom he or she is an alternate, serve in place of the member on the commission and have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or disqualification of a member, the alternate shall serve as a member on the commission until a successor is elected and has qualified.
Any producer member and his or her alternate member shall be a person, or an employee representing a producer, who has a financial interest in producing, or causing to be produced, winegrapes for market. The qualifications of producer members and alternate members shall be maintained during the entire term of office. No more than one member and his or her alternate members shall be employed by or connected in a proprietary capacity with the same producer. However, producer membership in an agricultural nonprofit cooperative association or trade organization shall not be considered employment or being in a proprietary capacity.
The public member and his or her alternate member shall have all the rights, privileges, and powers of any other member of the commission. The public member shall not have any financial interest in the wine or winegrape industry.
The term of office of members and alternate members shall be for two years or until their successors have been elected and have qualified. However, of the first members of the commission, one-half of the producer members and their alternate members shall serve for one year, and one-half of the producer members and their alternate members shall serve for two years. The determination of the term of each member shall be made by lot. No member or alternate member shall serve more than four consecutive terms.
No less than 10 producer members, including alternate members when acting in place of the members, shall constitute a quorum of the commission.
Not less than one-half of the producer members of any local commission, including alternate members when acting in the place of the members, shall constitute a quorum of the local commission.
The vote of a majority of the members, or alternate members when acting in the place of the members, present at the meeting at which there is a quorum shall constitute the act of the commission.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state and shall be prima facie evidence of the truth of all statements therein.
The secretary or his or her representatives shall be notified and may attend meetings of the commission and any committee meetings of the commission.
No member of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission, except ex officio government members, and each member of a committee established by the commission who is a nonmember of the commission, may receive an amount not to exceed one hundred dollars ($100) per day, as established by the commission. This amount shall be paid for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission. Members shall also receive necessary traveling expenses and meal allowances, as approved by the commission.
All funds received from the assessments levied pursuant to this chapter or otherwise received by the commission shall be deposited in banks which the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission.
No member, alternate member, or any employee or agent of the commission, is personally liable for the contracts of the commission or for errors in judgment, mistakes or other acts, either of commission or omission, except for their own individual acts of dishonesty or crime. Liability is several and not joint, and no member, alternate member, or any employee or agent of the commission is liable individually for the default, act, or omission of any other member, alternate member, or any employee or agent of the commission.
ARTICLE 4. Powers and Duties of the Commission [74891. - 74908.]
The powers and duties of the commission shall include, but are not limited to, all of those contained in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, operating procedures, and orders for carrying out this chapter, including appeals from any bylaws, rules, regulations, operating procedures, or orders of the commission.
The commission may administer and enforce this chapter and do and perform all actions and exercise all powers incidental to, in connection with, or deemed reasonably necessary for, proper or advisable effectuation of this chapter, including, but not limited to, entering into contracts for services with public and private agencies which are deemed necessary by the commission to carry out this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and other personnel, including legal counsel, necessary to carry out this chapter. If the person engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective action and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission.
The commission may establish offices, incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be made a part of an annual report to all producers, copies of which shall also be submitted to the Legislature and the department. In addition, the secretary may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may engage in market development and market research through plans and programs to enhance the sale of California winegrapes and winegrape products for the purpose of maintaining existing markets and creating new and larger domestic and foreign markets, and to educate and instruct the public with respect to the uses and value of California winegrapes and winegrape products. However, any plans and programs so developed and conducted shall not be directed towards a particular private brand or trade name, although private brands and trade names may be used in wine tastings and other similar programs authorized by the commission. In addition, the plans and programs shall make no use of false or unwarranted claims on behalf of California winegrapes or winegrape products, nor disparage the quality, value, sale, or use of any commodity. The commission shall not engage in collective bargaining issues, supply control, grades and quality standards, or price setting activities.
Persons subject to any local commission established after January 1, 1993, may designate the manner in which assessments that he or she pays to the local commission may be used, including for market development, market research, or production research, or a combination thereof. Persons may so designate during a period specified by the local commission following its establishment, and following any referendums conducted pursuant to Article 8 (commencing with Section 74991).
The commission may accept contributions of, or match, private, local, state, or federal funds and employ or make contributions of funds to other persons or local, state or federal agencies for purposes of maintaining, promoting, and enhancing the winegrape industry.
The commission may present facts to, and negotiate with, local, state, federal, and foreign agencies on matters that affect the winegrape industry.
The commission may undertake appropriate research relating to the production and processing of winegrapes, including the development of new winegrape products and uses for these products.
The commission may publish and distribute bulletins or other communications relating to the California winegrape industry.
The commission may establish an assessment rate to defray operating costs of the commission.
The commission may establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to Section 74896.
The commission shall submit to the secretary, for his or her concurrence, an annual statement of contemplated activities authorized pursuant to this chapter.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The secretary may require that any contract to which the commission is a party be submitted to the secretary for concurrence prior to the commission entering into the contract. If the secretary requires the submission of a contract and does not concur in that contract, the secretary shall hold a public hearing within 14 days of the initial decision not to concur. In the notice of the hearing, the secretary shall present a written explanation of his or her decision. The secretary shall make a final decision on whether or not to concur in the contract within 30 days of the hearing. The contract may not be executed from the time that the secretary makes the initial decision not to concur to the time of the final decision.
ARTICLE 5. Implementation and Voting Procedures [74921. - 74929.]
This chapter, except as necessary to conduct an implementation referendum, shall not become operative until the secretary finds, in a referendum conducted by him or her, or a person designated by the secretary, that a favorable vote has been given pursuant to this article.
Upon receipt of a petition that the secretary determines is acceptable, the secretary shall establish a list of producers who are eligible to vote to establish the commission. In establishing the list, the secretary may require producers, vintners, county agricultural commissioners, and others to submit the names and mailing addresses of all producers. The secretary also may require that the information provided include the quantity of winegrapes sold to vintners and the quantity of winegrapes processed by vintners or, in the alternative, may establish procedures for receiving the information at the time of the referendum. The request for this information shall be in writing. The information required by the secretary shall be filed within 30 days following receipt of the written notice.
Any producer whose name does not appear on the secretary’s list may have his or her name included on the list by filing with the secretary a signed statement identifying himself or herself as a producer. Failure to be on the list does not exempt any producer from paying assessments under this chapter.
Upon petition of at least three producers from any one producer region of this state, the secretary shall establish a list of producers who are eligible to vote in a referendum to establish a local commission in that producer region. In establishing the list, the secretary may require the producers signing the petition and producers, vintners, county agricultural commissioners, and others to submit the names and mailing addresses of all producers in that producer region. The secretary also may require that the information provided include the quantity of winegrapes sold to vintners and the quantity of winegrapes processed by vintners from that producer region and the names and addresses of the vintners, or, in the alternative, may establish procedures for receiving the information at the time of the referendum. The request for this information shall be in writing. The information required by the secretary shall be filed within 30 days following receipt of the written notice.
Any producer whose name does not appear on the secretary’s list may have his or her name included on the appropriate list by filing with the secretary a signed statement identifying himself or herself as a producer of a given producer region. Failure to be on the appropriate list does not exempt any producer from paying assessments under this chapter.
Notwithstanding any other provision of this chapter, the petition may designate producers exempt from this chapter, but no producer shall be exempt who has produced and marketed more than 25 tons of winegrapes in the preceding marketing season.
In determining whether this chapter is applicable to growers, the secretary shall find that at least 40 percent of the total number of growers from the list established by the secretary participated in the referendum, and that either one of the following has occurred:
Sixty-five percent or more of the growers who voted in the referendum voted in favor of this chapter, and the growers so voting marketed a majority of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted in the referendum.
A majority of the growers who voted in the referendum voted in favor of this chapter, and the growers so voting marketed 65 percent or more of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted in the referendum.
In determining whether this chapter is applicable to growers in a producer region, the secretary shall find that at least 40 percent of the total number of growers from the list established by the secretary for the producer region participated in the referendum, and that either one of the following has occurred:
Sixty-five percent or more of the growers in the producer region who voted in the referendum voted in favor of the local commission, and the growers so voting marketed a majority of the volume of winegrapes in the producer region in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted in the referendum.
A majority of the growers in the producer region who voted in the referendum voted in favor of the local commission, and the growers so voting marketed 65 percent or more of the volume of winegrapes in the producer region in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted in the referendum.
The secretary shall establish a period in which to conduct the referendum which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has not been given to the establishment of the commission as provided in this chapter, the secretary shall so certify and declare that result. If the secretary finds that a favorable vote has been given as provided in this chapter, he or she shall so certify and give notice of the favorable vote to all producers and vintners whose names and addresses may be on file with the secretary.
If the secretary finds that a favorable vote has not been given to the establishment of any local commission as provided in this chapter, the secretary shall so certify and declare that result. If the secretary finds that a favorable vote has been given, the secretary shall so certify and give notice of the favorable vote to all producers whose names and addresses may be on file with the secretary. If this chapter is certified as establishing the commission, any local commission shall be abolished unless its producers vote by referendum pursuant to Section 74923.1 in favor of that local commission remaining in operation.
The petition to establish the commission shall name the persons designated to serve as producer members and their alternate members in the event the commission is approved by referendum. Upon the certification of the establishment of the commission, the producer members and their alternates named in the petition shall become the initial members and alternate members of the commission.
The petition to establish a local commission shall name the persons designated to serve as producer members and their alternate members, if any, in the event that local commission is approved by referendum. Upon certification of the establishment of a local commission, the producer members and their alternates named in the petition shall become the initial members and alternate members of the local commission.
Subsequent to the action taken pursuant to Section 74927, persons to be elected to the commission upon expiration of existing terms shall be selected pursuant to the nomination and election procedures established by the commission with the concurrence of the secretary.
Subsequent to the action taken pursuant to Section 74927.1, persons to be elected to a local commission shall be selected pursuant to the nomination and election procedures established by the local commission with the concurrence of the secretary.
Prior to the implementation referendum conducted by the secretary, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses in creating the commission, including, but not limited to, preparing the necessary producer and vintner lists and conducting the referendum.
Any funds remaining after paying expenses shall be returned to the proponents of the commission who deposited the funds with the secretary.
The commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [74951. - 74957.]
Prior to the beginning of each marketing season or as soon thereafter as possible, the commission shall establish an assessment rate for the marketing season.
The assessment rate for producers shall not exceed 1 percent of the gross dollar value of winegrapes marketed by producers to vintners. If a producer sells winegrapes for a specified sum in a bona fide sale, the gross dollar amount of this sum is the gross dollar value of the winegrapes.
The petition for a referendum to establish a local commission shall set forth the assessment rate which shall become effective during the first marketing season in which the local commission is operative. Thereafter, prior to the beginning of each marketing season or as soon thereafter as possible, the local commission shall establish an assessment rate for the marketing season. Assessment rates set by local commissions which vote to continue in operation after the certification of the commission shall be independent of, and additional to, any assessment rate established by the commission.
The assessment rate for producers shall not exceed 1 percent of the gross dollar value of winegrapes grown in the producer region and marketed by producers to vintners. If a producer sells winegrapes for a specified sum in a bona fide sale, the gross dollar amount of this sum is the gross dollar value of the winegrapes.
Unless exempted by this chapter, the commission shall levy the assessment on the producer if he or she does any of the following:
Sells to a vintner or to a handler for processing.
Contracts or otherwise arranges with a vintner for processing into wine, with the producer retaining ownership of the wine for sale other than in bottled form.
Is a member of an agricultural nonprofit cooperative association for processing.
Processes winegrapes that he or she has grown and that are included in the petition specified in Section 74922.1.
If a producer delivers winegrapes to a vintner or handler for processing without selling them to the vintner or handler, the “weighted average producer returns per ton” by district as published in the most recent Final Grape Crush Report issued annually for the current marketing season by the department shall be used as the basis for determining the gross dollar value of the winegrapes for the purpose of determining the amount of the assessment.
Any producer who meets any of the requirements specified by subdivision (b) may apply to the secretary prior to the formation of the commission, or apply to the commission after its formation, for, and, if found eligible, shall, at the discretion of the commission, receive either an exemption from, or a refund of, the assessment.
A producer shall be eligible to claim an exemption from, or refund of, the assessment for winegrapes grown by the producer, with regard to which the producer does any of the following:
Processes winegrapes that are grown by the producer. However, the producer shall not be eligible for an exemption or refund of assessments on winegrapes that are grown and sold, but a producer who is also a vintner, and who commercially sells less than 25 tons of winegrapes in a marketing season, is not subject to assessment.
Sells to a related vintner or a related handler.
Contracts or otherwise arranges with a related vintner for processing into wine, with the producer retaining ownership of the wine for sale other than in bottled form.
Is a producer who is also a vintner and who contracts or otherwise arranges with a nonrelated vintner for processing his or her winegrapes into wine and retains ownership of the wine for sale other than in bottled form.
For the purpose of this section, an agricultural nonprofit cooperative association is not a “related vintner” or a “related handler.” A vintner or handler is a “related vintner” or “related handler” if any one of the following relationships exists:
In order to be eligible for the exemption or refund, the producer shall file a claim with the secretary prior to formation of the commission and with the commission after its formation on a form prescribed by the commission attesting to the facts establishing the producer’s right to the exemption or refund. The secretary or the commission shall then determine whether the claim should be granted.
The commission shall serve written notice on the claimant of its decision within 30 days of receipt of the claim. All approved claims shall be subject to verification through an independent audit of the claimant and the related vintner’s or handler’s business records by the commission or its duly authorized agent or, in the case of a local commission, by the secretary or his or her duly authorized agent. The local commission shall not serve as the secretary’s duly authorized agent for purposes of auditing business records.
Every producer receiving an exemption or refund shall, in addition to the requirements of Section 74954, maintain sales invoices, and all other business documents specified by the commission as necessary to verify the claim. The records shall be preserved for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent or, in the case of a local commission, by the secretary or his or her duly authorized agent. The local commission shall not serve as the secretary’s duly authorized agent for purposes of records inspection.
No claim of exemption or refund shall be approved by the commission after two years from the date the assessment was due. Failure to file a claim of exemption or refund within that two-year period constitutes a waiver of all claims or demands for an exemption or refund against the commission.
This chapter shall not apply to winegrapes produced only for a producer’s home use. However, any producer claiming this exemption shall file an affidavit with the commission establishing the manner in which the winegrapes are used. The commission shall then determine whether the affidavit should be approved.
Every producer subject to this chapter and every vintner who purchases winegrapes from or processes winegrapes for producers shall maintain normal commercial records of all winegrapes grown for market or processed. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be preserved for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent or, in the case of a local commission, by the secretary or his or her duly authorized agent. The local commission shall not serve as the secretary’s duly authorized agent for purposes of records inspection.
Producers subject to this chapter shall provide to local commissions the names of the vintners who purchase winegrapes from or process winegrapes for the producers. Vintners shall provide to local commissions the names of the producers subject to this chapter from whom they purchase or for whom they process winegrapes and the amount of assessment remitted to the local commission for each producer.
All proprietary information obtained by the commission or the secretary from producers or vintners, and all lists of producers in the possession of the commission or the secretary are confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter. Information on volume shipments, commodity value, and other related information that is required for reports to governmental agencies, financial reports made to the commission or aggregate sales and inventory information, and any other information which is requested from the commission, except individual producer or vintner information, may be disclosed by the commission.
Any assessment levied by the commission, pursuant to this chapter, is a personal debt of every person so assessed and is due and payable to the commission within 30 days after the date the vintner deducts the assessment from the amounts paid by the vintner to the producer. The vintner first acquiring the grapes being assessed shall deduct the assessments from amounts paid by the vintner to the producer and shall be a trustee of the funds until they are paid to the commission. The vintner responsible for deducting the assessment may deduct and retain an amount not in excess of that reasonably necessary to cover the actual cost of services provided by the vintner, as determined by the commission. Failure of a vintner to collect the assessment from a producer shall not exempt the vintner from liability nor relieve the producer of the obligation to pay the assessment.
Any person who fails to file a return, or remit or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, 112 percent interest per month on the unpaid balance.
ARTICLE 7. Actions and Penalties [74971. - 74974.]
It is a misdemeanor for any person to do any of the following:
Render or furnish a false report, statement, or record required by the commission.
When engaged in the marketing, processing, or other activities related to winegrapes, to fail or refuse to furnish the commission or its duly authorized agents, information concerning the name and address of the persons to whom winegrapes were delivered or from whom winegrapes have been received.
Secrete, destroy, or alter records required to be maintained under this chapter.
Refuse to render a report, statement, or record required by the commission.
The commission shall establish procedures for the purpose of according individuals aggrieved by its acts or determinations an informal hearing. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court. Pending disposition of any appeal and judicial review, the parties shall abide by the acts or determinations of the commission.
The commission may commence civil action and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and the obtaining of injunctive relief or specific performance regarding this chapter and the rules and regulations adopted pursuant to this chapter.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Suspension or termination of this chapter in accordance with Article 8 (commencing with Section 74991) shall not result in any of the following:
Affecting, waiving, or termination of any right, duty, obligation, or liability which may have arisen or may thereafter arise in connection with this chapter.
Releasing, condoning, or dismissal of any violation of this chapter.
ARTICLE 8. Continuation or Suspension and Termination [74991. - 74996.]
During the fifth year of operation of the commission, the commission shall cause a referendum to be conducted among producers to determine whether the commission shall be reapproved and continued to operate. A favorable vote shall be found if the secretary determines from the referendum that a majority of the eligible producers who voted in the referendum voted in favor of continuing the operations. If the secretary finds that a favorable vote has been given, he or she shall so certify that result. If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare the operations of the commission suspended upon expiration of the marketing season. No bond or security shall be required for any referendum.
Following an initial favorable referendum , a referendum shall be conducted by the commission every fifth year thereafter unless a referendum is conducted as a result of a petition pursuant to this article. In that case, the referendum shall be every fifth year following the industry petitioned referendum following procedures provided in this article.
Upon a finding by a two-thirds vote of the commission that this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing season.
Alternatively, the secretary may be petitioned to suspend this chapter. The petition shall be signed by 20 percent of the producers by number who produced not less than 20 percent of the volume of winegrapes in the immediately preceding marketing season. The secretary shall hold a hearing on the petition after receiving it.
The secretary shall, upon receipt of the recommendation to suspend this chapter from the commission, or may, after holding the hearing on the petition to suspend this chapter, hold a referendum among producers to determine if the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers from the lists established by the secretary participate in the referendum, the secretary shall suspend this chapter if he or she finds either of the following has occurred:
Sixty-five percent or more of the producers who voted in the referendum, voted in favor of suspension; and the producers so voting marketed a majority of the total quantity of winegrapes marketed in the preceding marketing season by all of the producers who participated in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension; and the producers so voting marketed 65 percent or more of the total quantity of winegrapes marketed in the preceding marketing season by all of the producers who voted in the referendum.
The secretary shall terminate the commission at the end of the current marketing season if the secretary finds that termination is requested in writing, within a 90-day period, by at least 51 percent of the eligible producers that are directly affected that market at least 51 percent of the volume of the product.
The person or persons originating the request shall file a written notice with the secretary in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the secretary.
The signatures to the petition requesting termination need not all be appended to one sheet of paper. Each person signing the petition shall add his or her signature and business address. If no business address is given, a designation of the place of business shall be given that will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension of this chapter, the operations of the commission shall be concluded and any and all funds remaining held by the commission and not required to defray the expenses of concluding and terminating the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to these persons, any funds shall be paid into an appropriate program conducted by the University of California or the California State University, another state agency, or a federal agency which deals with the purposes of this chapter. If no program exists, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of this chapter, the commission shall mail a copy of the notice of suspension to all producers and vintners affected by the suspension whose names and addresses are on file.
CHAPTER 13. California Egg Commission [75001. - 75176.]
ARTICLE 1. Declaration and General Provisions [75001. - 75007.]
Eggs and egg products constitute one of the basic, natural foods of the diet. The maintenance and expansion of existing markets and the development of new and improved markets and uses are vital and necessary to prevent the further decline in per capita consumption of eggs and egg products; to protect the welfare of the egg producer; and to provide employment for the work force. The Legislature also recognizes that this maintenance and expansion of the market for eggs is vital to the economy of California.
The protection and enhancement of the reputation of eggs and egg products in intrastate, interstate, and foreign markets, and the elimination of unreasonable and unnecessary economic waste of the agricultural wealth of this state is an essential aspect of the activities authorized in this chapter.
It is hereby declared to be the policy of this state to aid in the handling of eggs and egg products, to develop more efficient and equitable methods in handling, and to maintain job security for workers in the egg industry.
The production of eggs and egg products in this state and the marketing of eggs and egg products in this state, regardless of their point of origin is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, education, economic research and marketing research.
No action taken by the commission, or by any individual in accordance with this chapter or with the rules and regulations adopted under this chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
The benefits conferred by the activities authorized pursuant to this chapter extend to those segments of the egg industry doing business within this state. Insofar as out-of-state handlers benefit from the programs and activities authorized in accordance with this chapter, they may be obligated to bear their fair share of the burden and shall comply with this chapter.
ARTICLE 2. Definitions [75021. - 75036.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Egg Commission.
“Commissioner” means any member of the commission.
“Director” means the Director of Food and Agriculture.
“Districts” mean the following:
District 1 (Southern California) consists of the Counties of San Diego, Imperial, Orange, Riverside, San Bernardino, Los Angeles, Ventura, Santa Barbara, Kern, and San Luis Obispo.
District 2 (Northern California) consists of all counties not included in District 1.
The boundaries of any district may be changed by a two-thirds vote of the commission, which is concurred in by the director, to ensure proper representation by handlers. The boundaries need not coincide with county lines.
“Eggs” means eggs from domesticated chickens handled in California for human consumption in shell egg form, except those eggs used for hatchery purposes.
“Egg products” means eggs that are not sold or used for consumption in shell egg form and that have been processed into a nonshell form.
For purposes of this section, “processed” means cut, diced, sliced, peeled, seasoned, salted, sugared, preserved, frozen, dried, liquified, strained, pasteurized, separated into yolks and whites (whether or not in natural proportions), or blended or mixed with not more than 25 percent nonegg substances or ingredients.
Food products that contain less than 75 percent egg substances, or that historically have not been considered egg products, shall not be considered an “egg product” for purposes of this section.
“Ex officio member” means a nonvoting member of the commission.
“Handle” means to engage in the business of a handler.
“Handler” means the first person who sorts, grades, candles, or packages eggs, or who processes eggs into egg products, or who markets eggs or egg products in California that he or she has produced, purchased, or acquired from another person, or that he or she is marketing on behalf of another person, whether as owner, agent, employee, broker, or otherwise. When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments for which a corporate handler may be subject pursuant to this chapter shall include identical liability upon each individual director or officer of the corporation. “Handler” does not include a retailer, except a retailer who purchases or acquires eggs or egg products from any producer, handler, or broker that were not previously subject to assessment by the commission.
For purposes of this chapter, any handler that owns, controls, or is affiliated with any other person engaged in the handling of eggs in any marketing year shall be considered to be the handler of all eggs handled by that person.
“Affiliate” or “affiliated with” means a person who directly or indirectly through one or more intermediaries, controls, is controlled by, or is under the common direction and control of another person.
“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of any person.
All references to “handler” in this chapter, except for Article 3 (commencing with Section 75051), Article 5 (commencing with Section 75111), subdivision (a) of Section 75132, and Article 8 (commencing with Section 75171), but not including Sections 75175 and 75176, includes California handlers and out-of-state handlers, unless otherwise specified.
“Out-of-state handler” means any person located in another state who handles eggs or egg products, as specified in Section 75030, in California.
“Market” or “marketing” means to sell or otherwise cause to be distributed eggs or egg products into commercial channels of trade resulting in the sale of eggs or egg products in California.
“Marketing research” means any research relating to the sale of eggs or egg products.
“Marketing season” or “fiscal year” means the period beginning January 1 of each year and extending through December 31 of the same year. However, the 1984–85 marketing season shall commence within 30 days after the election of the first commission members as provided in Article 5 (commencing with Section 75111).
“Person” means an individual, sole proprietorship, partnership, corporation, cooperative, limited liability company, firm, or other business entity.
“Producer” means any person who is engaged in the business of producing, or causing to be produced, eggs or egg products for market.
“Secondary handler” means any person who purchases from a handler, eggs or egg products that were previously subject to assessment under this chapter.
ARTICLE 3. The California Egg Commission [75051. - 75070.]
There is in the state government the California Egg Commission. The commission shall be composed of eight handler members and one public member. Of the handler members, four shall be elected by and from handlers from District 1, three shall be elected by and from handlers from District 2, and one at-large handler shall be elected who pays assessments exclusively on eggs or egg products produced outside of California.
The public member shall be appointed to the commission by the director from the nominees recommended by the commission.
The director, and other appropriate individuals and organizations, as determined by the commission, are ex officio members of the commission.
The director may require the commission to correct or cease any existing activity or function which is determined by the director not to be in the public interest or which is in violation of this chapter.
If the commission refuses or fails to cease the activities or functions or to make the corrections as required by the director, the director may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions required by the director has been accomplished by the commission.
Actions of the commission in violation of a written notice have no legal force or effect. The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
Upon service of the written notice, the director shall notify the commission, in writing, of the specific acts which he or she determines are not in the public interest or are in violation of this chapter and his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and he or she may make recommendations that will make the activities or functions acceptable.
The commission may bring an action for judicial relief from the director’s written notice, and the director may bring an action for judicial relief from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his or her duties and responsibilities under this chapter. However, the court may, if it finds that the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to the action.
Three alternate handler members, one from each district and one who pays assessments exclusively on eggs or egg products produced outside of California, shall be elected in the same manner as the handler members.
Under procedures established by the commission, any alternate handler member may serve in place of any absent handler member on the commission regardless of whether the alternate handler was chosen from the district the absent handler member represents and shall have all the rights, privileges, and powers of the handler member when serving on the commission.
In the event of death, removal, resignation, or disqualification of a handler member, the alternate handler shall act as a handler member on the commission until a qualified successor is elected.
Any vacancy on the commission occurring for any reason, including the failure of any elected member or elected alternate member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled for the unexpired portion of the term by appointment by a majority vote of the commission.
The person so appointed shall fulfill all the requirements set forth in this article for the member or the alternate member whose office he or she is to fill.
The qualification of any person to fill a vacancy on the commission shall be certified by the commission, in writing, to the director. The director shall notify the commission if he or she determines that the person is not qualified.
Any handler member or his or her alternate shall be an individual, partner, or employee of a handler who has a financial interest in handling eggs or egg products for market. Not more than two handler members on the commission and not more than one handler member in any district shall be employed by or represent the same corporation, firm, partnership, association, or business organization.
Handler members and alternates shall meet the requirements of this section during their entire term of office.
The public member or his or her alternate has all the powers, rights, responsibilities, and privileges of any other member on the commission.
The public member shall not have any financial interest in the egg industry during the entire term of office.
Except as provided in subdivision (b), the term of office of the elected commissioners is three years from the date of their election and until their successors are qualified and elected.
With respect to the first elected members of the commission, two of the handlers from District 1 and two of the handlers from District 2 shall serve for three years, and two of the handlers from District 1 and one of the handlers from District 2 shall serve for two years, with the determination of the term of each member to be made by lot.
With respect to the term commencing in 2001 only, the alternate handler member who pays assessments exclusively on eggs or egg products produced outside of California shall serve for two years. Thereafter, the term of this member shall be as otherwise provided by this chapter.
An elected or appointed commissioner shall not serve more than three consecutive terms.
The public member shall serve a term of three years and shall remain on the commission after the expiration of three years until his or her successor is qualified and appointed.
The commission shall be and is hereby declared and created as a corporate body.
It may sue and be sued, may contract and be contracted with, and has all of the powers of a corporation. It may adopt a corporate seal.
Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state and shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission is five voting commissioners. Except as otherwise provided in this chapter, the commission may act by a vote of a majority of the members present at a meeting at which there is a quorum.
The director or his or her representatives shall be notified of, and may attend, each meeting of the commission and any committee meeting of the commission. However, the director or his or her representative or any other ex officio member is not entitled to attend an executive session of the commission called for the purpose of discussing potential or actual litigation involving either the department or the organization represented by the ex officio member, as the case may be.
When a decision of the commission requires the concurrence of the director, he or she shall indicate his or her response, in writing, to the commission within 15 working days from notification of the decision.
No commissioner, including alternates, or a member of a committee established by the commission who is a nonmember of the commission, shall receive a salary.
Each commissioner and alternate, except ex officio governmental members, and each member of a committee who is a nonmember of the commission, may receive a sum of not to exceed one hundred dollars ($100) per day, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees or on special assignment for the commission, as approved by the commission, together with the necessary traveling expenses and meal allowances, as approved by the commission.
All funds received by any person from the assessments levied under the authority of this chapter, or otherwise received by the commission, shall be deposited in the banks or other appropriate financial institutions designated by the commission and shall be disbursed by order of the commission through the agent or agents that it designated for that purpose.
The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in the amount of not less than fifty thousand dollars ($50,000).
The state shall not be liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission.
No member of the commission or alternate member, or any employee or agent thereof, is personally liable on the contracts of the commission or responsible individually in any way to any producer, any handler, or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime.
The commission shall accept full responsibility to defend any member of the commission or alternate member, or any employee or agent thereof, against any such claim, except for individual acts of dishonesty or crime.
No commissioner or alternate member shall be held responsible individually for any act or omission of any other member of the commission. The liability of the commissioners are several and not joint, and no commissioner is liable for the default of any other commissioner.
ARTICLE 4. Powers and Duties of the Commission [75081. - 75098.]
The commission shall adopt and, from time to time, alter, rescind, modify, and amend in a manner prescribed by the commission, all proper and necessary bylaws, rules and regulations, and orders for carrying out this chapter, including rules for appeals from any bylaw, rule and regulation, or order of the commission.
The commission shall administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, the proper or advisable effectuation of the purposes of this chapter.
The commission shall appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers that it deems necessary.
The officers have the powers and duties delegated to them by the commission.
The commission shall employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, that are necessary to carry out this chapter.
In lieu of an individual as president, the commission may contract with any private entity or state agency to perform, under the control of the commission, the functions specified in subdivision (a).
If the president, private entity, or state agency engages in any conduct which the director determines is not in the public interest or which is in violation of this chapter, the director shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the president, private entity, or state agency, as the case may be.
The commission shall fix the compensation for all employees of the commission.
The commission may appoint committees which may be composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments for that year, that may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which books, records, and accounts are subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. The audit shall be made a part of an annual report to all handlers and producers, copies of which shall also be submitted to the Legislature and the department.
In addition, the secretary may, as he or she determines it to be necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission shall promote the sale of eggs and egg products by advertising and other promotional means, including cost-sharing advertising, to maintain and expand present markets and create new and larger intrastate, interstate, and foreign markets for eggs and egg products, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of eggs and egg products.
The commission may petition the secretary to adopt and administer any activity authorized by the California Marketing Act of 1937, Chapter 1 (commencing with Section 58601) of Part 2 of Division 21, relating to the commodity covered by the commission. Adoption and administration of the activity by the commission shall be in accordance with the act.
As determined by the secretary, the governing body of the commission may serve as the advisory board to the secretary with respect to any activity recommended and approved pursuant to this section.
The commission shall educate and instruct the wholesale and retail trade with respect to proper methods of handling and marketing eggs and egg products, to make market surveys and analyses, and to present facts to, and negotiate with, private and public agencies on matters that affect the marketing of eggs and egg products.
The commission may enter into contracts to render services in formulating and conducting plans, programs, and any other contracts and agreements that the commission decides are necessary to carry out the activities authorized under this chapter.
The commission may accept contributions for the purpose of carrying out any activity consistent with this chapter.
The commission may conduct, and contract with others to conduct, marketing research, including the study, analysis, dissemination, and accumulation of information obtained from the research or from other sources regarding the marketing and distribution of eggs and egg products. In connection with the research, the commission is authorized to accept contributions of, or to match, private, state, or federal funds that may be available for these purposes, and to employ or make contributions of funds to other persons or state or federal agencies conducting this research.
The commission may conduct research programs for the purpose of developing and testing new products in selected markets. Funds may be expended to develop the proposal; however, the proposed program shall be submitted to the director for approval prior to the expenditure of funds to implement the program. The proposal submitted shall include a description of the new products, the test market to be utilized, and the duration of the program.
The commission may publish and distribute, without charge, bulletins or other communications for dissemination of information relating to commission activities and other related matters to producers and handlers.
Pursuant to Section 75131, the commission shall establish an assessment rate to defray operating costs of the commission.
The commission shall prepare an annual budget according to generally accepted accounting practices.
Except for disbursements to pay the compensation of the employees of the commission, no disbursement of funds shall be made unless the director concurs in the budget.
The commission shall submit to the director, for his or her concurrence, an annual statement of contemplated activities authorized under this chapter, including advertising, promotion, and marketing research.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for criminal violation of this chapter.
ARTICLE 5. Implementation and Voting Procedures [75111. - 75120.]
Within 90 days after the effective date of this chapter, the director shall establish a list of handlers subject to the provisions of this chapter and who are otherwise eligible to vote on implementation of this chapter. In establishing this list, the director may require handlers, county agricultural commissioners, and others to submit the name and mailing address of, and the volume, if known, handled by each handler. The request for this information shall be in writing. The information required by the director shall be filed within 30 days following receipt of the written notice.
Any handler, whose name does not appear upon the director’s list of handlers affected, may have his or her name included on the list by filing with the director a signed statement identifying himself or herself as a handler. Failure to be on this list does not exempt the handler from paying assessments under this chapter.
Additionally, the director may use other sources of information necessary to secure that information to establish the list.
This chapter, except as necessary to conduct an implementation referendum, does not become operative until the director finds in a referendum conducted by him or her, or a person designated by the director, that at least 40 percent of the total number of handlers from the list established by the director pursuant to Section 75111, participated, and that he or she finds either one of the following:
Sixty-five percent or more of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled a majority of the volume of eggs and egg products in the preceding season by all of the handlers who voted in the referendum.
A majority of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled 65 percent or more of the volume of eggs and egg products in the preceding season by all of the handlers who voted in the referendum.
The director shall establish a period in which to conduct the referendum which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures as may be necessary to conduct the referendum. If the initial period established is less than 60 days, the director may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot does not invalidate a referendum.
If the director finds that a favorable vote has been given as provided in Section 75112, he or she shall certify and give notice of the favorable vote, and that this chapter is operative, to all handlers whose names and addresses are on the list of the director.
If the director finds that a favorable vote has not been given as provided in Section 75112, he or she shall so certify and declare this chapter to be inoperative.
Upon certification of the commission, as provided in Section 75115, the director shall, by mail ballot or by calling a meeting of all handlers, conduct the nomination and election of handlers to the commission.
Handlers shall be given written notice of the meeting at least 15 days prior to the meeting date. Any handler doing business in more than one district shall designate in a manner prescribed by the commission, prior to any election, the district in which he or she will vote.
Subsequent to the first election of commissioners under this chapter, persons to be elected to the commission shall be selected pursuant to the nomination and election procedures established by the commission with the concurrence of the director.
Prior to the implementation referendum conducted by the director pursuant to Section 75112, the proponents of the commission shall deposit with the director the amount that the director deems necessary to defray the expenses in creating the commission, including, but not limited to, preparing the necessary lists of handlers and conducting the implementation referendum.
Any funds left after paying those expenses shall be returned to the proponents of the commission who deposited the funds with the director.
Upon creation of the commission, the commission is authorized to reimburse the proponents of the commission for any funds deposited with the director which were used in creating the commission, including, but not limited to, preparing the necessary lists of handlers and conducting the implementation referendum.
ARTICLE 6. Assessments and Records [75131. - 75137.]
The assessment on eggs and egg products shall be established by the commission, with the approval of not less than five handler members, prior to the beginning of each marketing season and, except as provided in subdivision (c), shall not exceed one cent ($0.01) per dozen for shell eggs, or the equivalent thereof, as determined by the commission, for egg products.
The commission may establish an assessment rate that is different for eggs than for egg products, so long as it does not exceed the maximum assessment authorized in subdivision (a).
An assessment greater than the maximum specified in subdivision (a) may be charged but only if it is approved by a vote of the handlers as provided for in Section 75112.
The assessment established pursuant to Section 75131 may be collected from out-of-state handlers in accordance with procedures established by the commission on eggs or egg products handled in this state.
Prior to the beginning of each marketing season and during the 1984 marketing season, the commission, with the concurrence of the director, may exempt the sale of specified eggs and egg products from an assessment if the commission determines that the activities supported by the assessment are inapplicable to the eggs and egg products.
This chapter does not apply to any person who handles not more than 26,000 cases of eggs per year, or the equivalent thereof, and to secondary handlers. Unless the commission determines otherwise, direct sales to customers on the premises of the handler in less than one case lots shall not be included in computing the number of cases handled per year and shall not be subject to assessment by the commission. However, the handler shall file an affidavit with the commission stating the basis for exemption from this chapter. The commission shall then determine whether the exemption should be approved.
This chapter does not apply to any out-of-state handler who handles not more than 26,000 cases of eggs per year, or the equivalent thereof. However, upon the implementation of Section 75131.3, the commission may require the out-of-state handlers to file an affidavit with the commission stating the basis for exemption from this chapter. The commission shall then determine whether the exemption should be approved.
Every handler, and any person required to be registered pursuant to Section 75135.5, shall keep a complete and accurate record of all eggs and egg products handled by him or her. These records shall be in the form and contain the information prescribed by the commission. The records shall be retained for a period of five years and shall be submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from handlers is confidential and shall not be disclosed except when required by court order in a judicial proceeding involving this chapter.
Information on volume shipments, product value, and any other related information that is required for reports to governmental agencies; financial reports to the commission or aggregate sales and inventory information; and any other information that the commission requires that gives only totals, but excludes individual handler information, may be disclosed by the commission.
Assessments shall be levied upon the handler for all eggs and egg products handled by him or her that were not previously assessed by the commission. The handler of eggs and egg products being assessed shall be a trustee of the assessment funds until they are paid to the commission at the time and in the manner prescribed by the commission.
Persons handling eggs or egg products in California which originated out of state, including persons shipping eggs or egg products into California, shall register with the commission in the manner prescribed by the commission, before handling eggs or egg products in this state.
Every handler is personally liable for the payment of the assessments. Any handler who fails to file records as prescribed by the commission or pay any assessment within the time required by the commission, shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, 2 percent interest per month on the unpaid balance.
For any period during which the federal Egg Marketing Order (7 C.F. R. 994) and any resulting regulations are in effect and for which a federal assessment was paid in accordance with the order, the assessment collected by the commission pursuant to this chapter shall not exceed one-half cent ($0.005) per dozen shell eggs or the equivalent thereof.
If the federal order is terminated, this section shall have no future force and effect.
ARTICLE 7. Actions and Penalties [75151. - 75156.]
It is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding five hundred dollars ($500), or by both the fine and imprisonment, for any person to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission.
When engaged in the handling of eggs or egg products or in the wholesale or retail trade of the handling of eggs or egg products, fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom eggs or egg products have been received and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of addressing any claims made against the commission or any of its individual members and alternates, and for the purpose of according individuals, including members and alternates, aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose.
Appeals from decisions of the commission may be made to the director. The determination of the director is subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance, with respect to this chapter and the rules and regulations adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief. A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified by Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until there is full compliance with and satisfaction of the judgment.
Except in a proceeding to determine whether the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, upon a favorable judgment for the commission, the commission is entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs.
Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action for any penalty or other remedy which is prescribed under this chapter shall be commenced within two years from the date of the alleged violation.
It is not necessary for the commission to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.
This chapter shall be liberally construed. If any section, clause, or part of this chapter is for any reason held to be unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the remaining portions of this chapter or the application of this chapter to any other persons or under any other circumstance.
ARTICLE 8. Continuation or Suspension and Termination [75171. - 75176.]
Between January 1, 1989, and December 31, 1989, the commission shall conduct a referendum among handlers. A favorable vote under this chapter shall be found if the director determines from the referendum that a majority of the eligible handlers voting in the referendum voted in favor of continuing the operations of this chapter.
If the director finds that a favorable vote has been given, he or she shall so certify and this chapter shall remain operative. If the director finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the marketing season ending December 31, 1989. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 75175.
No bond or security is required for the referendum.
Following a favorable referendum conducted prior to December 31, 1989, a referendum shall be conducted by the commission every fifth year thereafter between January 1st and December 31st, following procedures provided in this article, unless a referendum is conducted as the result of a petition filed pursuant to Section 75173. In that case, the referendum shall be every fifth year following the industry-petitioned referendum.
A favorable vote under this section shall be found if the secretary determines from the referendum that a majority of the handlers eligible to vote in the referendum voted in favor of continuing the operations of this chapter, or that the handlers so voting handled a majority or more of the volume of eggs or egg products handled in the preceding season by all of the handlers who voted in the referendum.
If the secretary finds that a favorable vote has been given, he or she shall so certify and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the then current marketing season. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 75175.
No bond or security is required for a referendum conducted pursuant to this section.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, the suspension shall not become effective until the expiration of the current marketing season.
The secretary shall, upon receipt of this recommendation, or may, after a public hearing to review a petition filed with him or her requesting the suspension, signed by 20 percent of the total number of handlers by number who handled not less than 20 percent of the volume of eggs and egg products handled in the immediately preceding marketing season, conduct a referendum among the handlers to determine if the operation of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by a preponderance of the evidence that the operation of this chapter has not tended to effectuate its declared purpose.
The secretary shall establish a referendum period, which shall not be less than 10 or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period.
If at least 40 percent of the total number of handlers from the list established by the secretary participated in the referendum, the secretary shall suspend the operation of this chapter, if he or she finds either one of the following:
Sixty-five percent or more of the total number of handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled a majority or more of the volume of eggs and egg products handled in the preceding marketing season by all of the handlers who voted in the referendum.
A majority of the total number of handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled 65 percent or more of the volume of eggs and egg products handled in the preceding season by all of the handlers who voted in the referendum.
Prior to any referendum resulting from a petition filed in accordance with Section 75173, the petitioners shall deposit with the director an amount that the director deems necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum. Any funds not used shall be returned to the petitioners who deposited the funds with the director.
After the effective date of suspension of the operation of this chapter and of the commission, the operations of the commission shall be concluded and any and all remaining funds held by the commission, collected by assessment and not required to defray the expenses of concluding and terminating the operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season.
However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of a pro rata refund to these persons, any such funds remaining and any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state authorized eggs or egg products program. If no such program exists, the funds shall be paid into a federally authorized eggs or egg products program. If no such program exists, the funds shall be paid into the State Treasury as unclaimed trust money.
Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all handlers affected by the suspension whose names and addresses are on file.
CHAPTER 13.5. California Apple Commission [75501. - 75656.]
ARTICLE 1. Declarations and General Provisions [75501. - 75507.]
The production and marketing of apples constitute an important industry of this state which provides substantial and necessary revenues for the state and employment for its residents.
The maintenance of the apple industry of California is necessary to assure the public of a continuous supply of this vital food product and the maintenance of needed levels of income for those persons engaged in the industry.
The production and marketing of apples produced in this state are hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission or by any individual in accordance with this chapter or with the regulations adopted under this chapter, is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of a particular agricultural industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular agricultural industry concerned is tantamount to and constitutes the public generally within the meaning of Section 87103 of the Government Code.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, marketing research, and production research of apples, and any other activity authorized in this chapter.
ARTICLE 2. Definitions [75511. - 75526.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Apple” means any variety of apple that is grown in this state and marketed for fresh consumption.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Apple Commission.
“Districts” shall consist of the following:
District 1 shall consist of the Counties of Imperial, Kern, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, Los Angeles, Orange, Riverside, and Ventura.
District 2 shall consist of the Counties of Alpine, Fresno, Inyo, Kings, Madera, Mariposa, Merced, Mono, Monterey, San Benito, Tulare, and Tuolumne.
District 3 shall consist of the Counties of Alameda, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Glenn, Humboldt, Lake, Lassen, Marin, Mendocino, Modoc, Napa, Nevada, Placer, Plumas, Sacramento, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Yolo, and Yuba.
Notwithstanding subdivision (a), after the commission provides notice to all eligible producers, the number of districts and their boundaries may be changed by a two-thirds vote of the members of the commission, which is concurred in by the secretary. When there are two or more districts, there shall be similar total production among the districts to ensure proper representation. These boundaries need not coincide with county lines.
“Ex officio member” means a nonvoting member of the commission.
“Handler” means any person engaged in packing apples for fresh consumption or engaged in marketing apples for fresh consumption that the person has produced or that the person is marketing on behalf of a producer either directly or through an agent, employee, broker, or otherwise, and who, upon request by the commission, provides proof that he or she is engaged in handler activities.
“Market” or “marketing” means to sell apples.
“Marketing research” means any research relating to the sale of apples.
“Marketing year” means the period beginning July 1 of each year and extending through June 30 of the following year.
“Member” means a person who serves on the commission’s board of directors.
“Pack,” “packing,” or “packed” means the regular compact arrangement of all or part of the fruit in any container or subcontainer.
“Person” means any individual, firm, corporation, association, or other entity doing business in California.
“Producer” means any person who is engaged in the business of producing, or causing to be produced, apples for market, and who, upon request of the commission, provides proof of commodity sale.
“Production research” means any research related to pest control and to the production, harvest, and postharvest handling of apples, other than marketing research.
“Sale” means the point at which the producer transfers title of apples in exchange for financial compensation or other valuable consideration. A sale may occur even though the purchased apples are not placed in normal marketing channels.
“Secretary” means the Secretary of Food and Agriculture.
ARTICLE 3. The California Apple Commission [75531. - 75546.]
There is in the state government the California Apple Commission.
Pursuant to Section 75514, when there are two or more districts, the commission shall consist of a board of directors of three producers and one handler from each district, and one public member.
Pursuant to Section 75514, when there is one statewide district, the commission shall consist of a board of directors of no less than six producers and one handler, as determined by a two-thirds vote of the commission’s board of directors, which is concurred in by the secretary, and one public member.
The public member shall be appointed to the commission by the secretary from nominees recommended by other members of the commission.
The secretary and other persons, as determined by the commission, shall be ex officio members of the commission.
The secretary may require the commission to correct or cease any activity or function of the commission that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease the specified activities or functions or to make corrections required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions, as required by the secretary, has been accomplished by the commission.
Any action of the commission in violation of the written notice is without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
At the same time the written notice is provided to the commission, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and the secretary’s recommendations with respect to any action that will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other appropriate relief.
If the secretary is required to concur in a decision of the commission, the secretary shall concur, refuse to concur, or request additional information from the commission within 15 working days from the date the secretary receives the notification of the decision.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Alternate members shall be selected pursuant to procedures adopted by the commission.
Any alternate member may serve in place of any absent member on the commission and shall have all of the rights, privileges, and powers of the member when serving on the commission.
In the event of the death, removal, resignation, or disqualification of a member, the alternate member shall act as a member of the commission until a qualified successor is elected.
Any vacancy on the commission occurring by the failure of any person elected to or serving on the commission as a member or alternate member to continue in his or her position due to a change in his or her status, thereby making the person ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled for the unexpired portion of the term by a majority vote of all of the remaining members of the commission. The appointee shall meet all of the qualifications set forth in this article as required for the member or alternate whose office he or she is to occupy.
Any producer member shall be a producer or an employee representing a producer who has a financial interest in producing, or causing to be produced, apples for market. Qualifications of producer members shall be maintained during their entire term of office.
Any handler member, or employee representing that person, shall have a financial interest in marketing or packing apples for market. Qualifications of handler members shall be maintained during their entire term of office.
The public member and alternate member on the commission, if appointed, shall have all of the powers, rights, and privileges of any other member or alternate member, respectively, on the commission. The public member and alternate member, if appointed, shall not have any financial interest in the apple industry.
Not more than one member and one alternate member shall be persons employed by, or connected in a proprietary capacity with, the same corporation, firm, partnership, association, or business organization. Any alternate member serving on the commission who is employed by, or connected in a proprietary capacity with, a person serving as a member on the commission from the same company, firm, partnership, or business organization shall serve as an alternate to the member.
The term of office of each member, except ex officio members, is four years, commencing with the beginning of the marketing year following the member’s election and until a qualified successor is elected or appointed.
The commission may sue and be sued, enter into contracts, and adopt a seal. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission is a majority of the voting members. Except as otherwise provided in this chapter, the vote of a majority of the members present at a meeting at which there is a quorum constitutes the act of the commission.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission. However, the secretary may not attend an executive session of the commission called for the purpose of discussing potential or actual litigation against the secretary.
No member or alternate member of the commission, or member of a committee established by the commission who is a nonmember of the commission, shall receive any compensation. Each member of the commission or each alternate member serving in place of a member, except ex officio members, and each member of a committee established by the commission who is a nonmember of the commission, may receive necessary traveling expenses and meal allowances as approved by the commission.
All funds received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks which the commission may designate and shall be disbursed by order of the commission through an agent or agents designated by the commission for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member, alternate member, employee, or agent of the commission is personally liable for the contracts of the commission nor is any such person responsible individually in any way to any producer or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as a principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member, alternate member, employee, or agent of the commission, is responsible individually for any act or omission of any other member, alternate member, employee, or agent of the commission. Liability is several and not joint, and no member, alternate member, employee, or agent of the commission is liable for the default of any other member, alternate member, employee, or agent of the commission.
ARTICLE 4. Powers and Duties of the Commission [75581. - 75603.]
The powers and duties of the commission shall include, but are not limited to, all of those specified in this article.
The commission may adopt, amend, and repeal regulations and operating procedures necessary to carry out this chapter, including regulations governing appeals from actions taken by the commission pursuant to any of its regulations or operating procedures.
The commission may administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, the proper or advisable implementation of this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter. The commission may retain a management firm or the staff from any board, commission, or agency of the state or federal government to perform the functions prescribed by this section under the control of the commission. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, borrow funds in advance of receipt of assessments, and repay producers for costs incurred during the initial formation of the commission, as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all its dealings that shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all producers and a copy of the summary shall also be submitted to the secretary. In addition, the secretary, as he or she determines necessary, may conduct, or cause to be conducted, a fiscal and compliance audit of the commission.
The commission may present facts to, and negotitate with, state, federal, and foreign agencies on matters which affect this chapter.
The commission may make, in its name, contracts to receive or render services in formulating and conducting plans and programs and any other contracts or agreements that the commission deems necesary for carrying out this chapter.
The commission may conduct, and contract with others to conduct, production research, including the study, analysis, accumulation, and dissemination of information obtained from that research or otherwise, regarding this chapter.
The commission may accept contributions of private, state, or federal funds, and make contributions of funds to other persons or state or federal agencies, for purposes of this chapter.
The commission may promote the sale of apples by advertising and other promotional means, including cost sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for apples, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of apples.
The commission may collect information, and publish and distribute without charge, bulletins and other communications for dissemination of information.
The commission may establish an annual assessment rate to defray the operating costs of the commission.
The commission shall adopt an annual budget according to accepted practices. The secretary shall concur in the adoption of the budget prior to the encumbrance of funds, except for encumbrances necessary to pay the compensation of employees of the commission.
The commission shall annually prepare and submit to the secretary, for his or her concurrence, a statement of contemplated activities authorized pursuant to this chapter.
The commission and the secretary shall keep confidential and shall not disclose, except when required by court order in a judicial proceeding, all lists of persons subject to this chapter in their possession.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The commission may recommend to the secretary the adoption of maturity and quality standards or product labeling standards, or engage in any other activity authorized pursuant to the California Marketing Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of Division 21) that are in accordance with the procedures specified in that act, unless otherwise specified in this article.
Any standards that are adopted shall be implemented by the secretary at the beginning of the marketing year next succeeding the date on which they were approved by the secretary.
Any standards recommended by the commission and approved by the secretary shall not be operative until approved by the vote specified in Section 75612.
The commission shall serve as the advisory body to the secretary on all matters pertaining to this section.
In order to prevent unfair trade practices, which are detrimental to California’s apple industry, including, but not limited to, deception and misinformation, the commission may collect and disseminate to any and all interested persons, handler F.O.B. market price information based on sales that have occurred.
The identity of each handler reporting information and the information reported pursuant to this section shall be kept confidential and not made public by the commission under any circumstances. Information that gives industry totals, averages, and other similar data may be disclosed by the commission.
The procedure for the collection and dissemination of the information pursuant to this section shall be approved by the secretary.
In order to prevent the use of prohibited substances in organic apple production and processing that would undermine consumer confidence in the apples purchased and consumed, the commission may establish an organic apple certification program applicable to persons engaged in domestic organic production or processing of apples and to persons engaged in importing apples to determine whether they are in compliance with state and federal laws.
The program’s operating procedures shall be subject to approval by the secretary.
The identity of any person determined to be in violation of the program shall be provided to the public, the department, and any other state and federal agency responsible for the administration of laws related to organic products.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out its duties and responsibilities pursuant to this section.
ARTICLE 5. Implementation and Voting Procedures [75611. - 75619.]
Within 90 days of the effective date of the amendments made to this section during the 1994 portion of the 1993–94 Regular Session of the Legislature, the secretary shall establish a list of producers eligible to vote. In establishing the list, the secretary may require that producers, handlers, and agricultural commissioners submit the names and mailing addresses of all known producers who are subject to this chapter. The secretary also may require that the information provided include the quantity of apples produced by each producer or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in this article. The request for the information shall be in writing, and the requested information shall be filed within 30 days following receipt of the request.
Any person whose name does not appear upon the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a person eligible to vote. The absence of a person’s name from the list shall not exempt the person from paying assessments and shall not invalidate any industry votes conducted pursuant to this article.
Proponents and opponents of the commission may contact producers on the lists in a form and manner prescribed by the commission as long as all expenses associated with the contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds, in a referendum vote conducted by the secretary, that at least 40 percent of the total number of producers from the list established by the secretary pursuant to this article have participated and that either one of the following has occurred:
Sixty-five percent of the eligible producers who voted in the referendum voted in favor of this chapter, and the eligible producers so voting produced and marketed a majority of the total quantity of apples in the current marketing year by all of the eligible producers who voted in the referendum.
A majority of the eligible producers who voted in the referendum voted in favor of this chapter, and the eligible producers so voting produced and marketed 65 percent or more of the total quantity of apples in the current marketing year by all of the eligible producers who voted in the referendum.
The secretary shall establish a period to conduct the referendum that shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures that may be necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period to not more than 60 days.
The failure of an eligible producer to receive a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in this article, the secretary shall certify and give notice of the favorable vote to all persons whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in this article, the secretary shall certify and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one or more years after the previous vote has been taken.
Upon certification of the commission, the secretary shall appoint the producer and handler members of the initial commission’s board of directors from a list of eligible persons submitted to the secretary, or shall contact all eligible producers and handlers in each district by mail, or shall call meetings in each district for the purpose of nominating and electing persons to the commission. To be eligible for election, nominees, who may be producers or handlers, shall present to the secretary a nomination petition with the signatures of at least five eligible persons from the district from which the nominee is seeking election. Eligible persons may be nominated and elected from any district in which they produce or handle apples. Only eligible producers may vote for nominees, and each eligible producer may cast one vote in each district in which he or she produces apples. The volume of apples marketed by eligible producers who vote shall not be considered when tabulating the votes to elect members and alternate members to the commission.
Subsequent to the first election of members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures that are adopted by the commission with the concurrence of the secretary.
Prior to the secretary holding the referendum pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary determines necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum.
Any funds not used in carrying out this article shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out this article and for any legal expenses and other costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [75630. - 75637.]
The commission shall establish the assessment for the marketing year by July 1 of each year or as soon thereafter as is possible.
The assessment shall be one-fourth cent ($0.0025) per pound of apples marketed for fresh consumption during the 1994–95 marketing year. Thereafter, the assessment shall not exceed three-fourth cent ($0.0075) per pound of apples marketed for fresh consumption, except as provided in subdivision (d).
Assessments provided for in this section shall be levied on the producer. The handler shall deduct the assessment from amounts paid by him or her to the producer, and is a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission.
An assessment greater than the amount provided for in subdivision (b) may not be charged unless a greater fee is approved by a majority of the commission and by eligible producers pursuant to procedures specified in Section 75612.
This chapter shall not apply to producers who produce no more than 40,000 pounds of apples per year and to production on a noncommercial basis for the producer’s home use, or where the trees are used only for ornamental purposes. Producers from whom assessments are collected may apply for the refund of the payments following the close of any marketing season in which the payments have been made, and the commission shall refund the payments if the producer can demonstrate, to the satisfaction of the commission, that he or she is not subject to this chapter.
Every handler shall keep a complete and accurate record of all apples handled. The records shall be in simple form and contain information as the commission shall prescribe including, but not limited to, market price information and the names and addresses of the producers whose apples were packed or marketed. The records shall be retained by the handler for two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from producers or handlers is confidential and shall not be disclosed except when required by court order in a judicial proceeding.
Information on volume shipments, product value, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that the commission requires that gives only totals, but excludes producer or handler information, may be disclosed by the commission.
Any assessment which is imposed on the producer as provided for in this chapter is a personal debt of that producer.
Every handler is personally liable for the payment of the assessments to the commission. The failure of a handler to collect the assessment shall not exempt the handler from liability and shall not relieve any producer subject to this chapter from the obligation to pay the assessment.
Any producer or handler who fails to file a return or pay the assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, pay 1.5 percent interest per month on the unpaid balance. In addition to any other penalty imposed, the commission may require any person who fails to pay any assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission, as assurance that all payments to the commission will be made when due.
If the producer or handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including, but not limited to, failing to pay the assessments or to collect the assessments, shall also include identical liability upon each director or officer of the corporation.
ARTICLE 7. Actions and Penalties [75641. - 75644.]
It is a misdemeanor for any person to do any of the following:
Refuse to render a report, statement, or record required by the commission.
Furnish a false report, statement, or record required by the commission.
Fail or refuse to furnish the commission or its duly authorized agents, information concerning the names and addresses of persons from whom apples have been received and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall adopt procedures to grant individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary is subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for obtaining injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of that code is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business involving apples until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it is entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission to recover any penalty or obtain any other remedy that is prescribed under this chapter shall be commenced within two years from the date of the alleged violation. Any action against the commission by any person shall be commenced by the commission within two years from the date of the act of which the person complains.
It is not necessary for the commission to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.
The suspension or termination of this chapter shall not affect or waive any right, duty, obligation, or liability which has arisen or which may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [75651. - 75656.]
Every five years after the implementation of this chapter, or every fifth year after an industry-petitioned referendum pursuant to Section 75654, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible producers regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible producers voting in the referendum voted in favor of continuing this chapter. No bond or security shall be required for the referendum.
If the secretary finds after conducting a hearing that no substantial question exists regarding whether the operation of this chapter should be continued or that a favorable vote has been given in a referendum, the secretary shall so certify and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the then current marketing year. Thereupon, the operations of the commission shall be concluded and the funds distributed in the manner provided in Section 75655.
Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing year.
The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with the secretary requesting a suspension signed by not less than 20 percent of the eligible producers by number who produced not less than 20 percent of the total volume of apples in the immediately preceding marketing year, hold a referendum to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows, by a preponderance of evidence, in a manner prescribed by the secretary, that the operation of this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of this chapter if the secretary finds that at least 40 percent of the total number of persons from the list established by the secretary have participated in the referendum and that either one of the following has occurred:
Sixty-five percent or more of the eligible producers who voted in the referendum voted in favor of suspension, and the eligible producers so voting produced and marketed a majority of the total quantity of apples in the preceding marketing year by all of the eligible producers who voted in the referendum.
A majority of the eligible producers who voted in the referendum voted in favor of suspension, and the eligible producers so voting produced and marketed 65 percent or more of the total quantity of apples in the preceding marketing year by all of the eligible producers who voted in the referendum.
The secretary shall terminate the commission at the end of the then current marketing year if the secretary finds that the termination of the commission is requested in writing, within a 90-day period, by at least 51 percent of the eligible producers that produce and market at least 51 percent of the total volume of apples.
The person or persons originating the request shall file a written notice with the secretary in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the secretary.
The signatures on the petition requesting the termination need not all be appended to one sheet of paper. Each person signing the petition shall specify his or her place of business in a manner that will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention to terminate the commission. Signatures shall be secured within the time limit specified in this section.
After the effective date of the suspension, the operation of the commission shall be concluded and any and all funds remaining, held by the commission, and not required to defray the expenses of concluding and terminating the operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing year. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to these persons, any funds remaining, after the payment of all expenses of winding up and terminating operations, shall be withdrawn from the approved depository and paid into an appropriate program conducted by the University of California or the California State University, or another state agency that deals with the purposes of this chapter. If no program exists, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of this chapter, the commission shall mail a copy of the notice of suspension to all producers and handlers whose names and addresses are on file with the commission.
CHAPTER 14. California Cherry Commission [76001. - 76185.]
ARTICLE 1. Declaration and General Provisions [76001. - 76006.]
The inability of cherry producers to maintain or expand present markets for California cherries may result in unnecessary economic waste.
These conditions vitally concern the health, peace, safety, and general welfare of the people of this state. It is, therefore, in the public interest to protect and enhance the reputation of California cherries in intrastate, interstate, and foreign markets.
The promotional, educational, economic, and marketing research, and any similar activities authorized by this chapter will serve to expand existing markets, create new markets for California cherries, and prevent economic waste.
It is hereby declared to be the policy of this state to aid in preventing economic waste in the marketing of cherries, to develop more efficient and equitable methods in marketing, and to provide production research, and to carry out the purposes and policies of this chapter.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, marketing research, and production research.
No action taken by the commission, nor by any individual in accordance with this chapter or with the rules and regulations adopted under the chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Fair Trade Act (Chapter 3 (commencing with Section 16900) of that Part 2), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
ARTICLE 2. Definitions [76021. - 76034.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Cherry” means any variety of cherry produced in the state, including any cherries produced in this state and delivered to a processor for processing into any cherry product.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to the provisions of this chapter.
“Commission” means the California Cherry Commission.
“Commissioner” means any member of the commission.
“Grower-handler” means any person who engages in the operation of selling, marketing, or distributing cherries which he or she has produced. When the grower-handler is a corporation, all the directors and officers of the corporation in their capacity as individuals are included, and any liability for failure to collect or make payment of assessments to which a corporate grower-handler may be subject pursuant to this chapter includes the same liability for each individual director or officer of the corporation.
“Shipper” means any person who engages in the operation of selling, marketing, handling, or distributing cherries which he or she has purchased or acquired from a producer, or which he or she is marketing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise. When the shipper is a corporation, all the directors and officers of the corporation in their capacity as individuals are included, and any liability for failure to collect or make payment of assessments to which a corporate shipper may be subject pursuant to this chapter includes the same liability for each individual director or officer of the corporation.
“Shipper” does not include a retailer, except a retailer who purchases or acquires from, or handles on behalf of any producer, cherries which were not previously subject to regulation by the commission.
“Ex officio member” means a nonvoting member of the commission.
“Processor” means every person and every plant within this state to whom or to which cherries are delivered for the purpose of drying, dehydrating, canning, pressing, brining, crushing, extracting, cooking, quick freezing, or for use in producing or manufacturing a product or manufactured article. When the processor is a corporation, all the directors and officers of the corporation in their capacity as individuals are included, and any liability for failure to collect or make payment of assessments to which a corporate processor may be subject pursuant to this chapter includes the same liability for each individual director or officer of the corporation.
“Marketing research” means any research relating to the marketing of cherries.
“Marketing season” or “fiscal year” means the period beginning on April 1 of any year and extending through March 31 of the next year.
“Process” means to engage in the business of a processor.
“Producer” or “grower” means any person who is engaged within this state in the business of producing or causing to be produced on land totaling more than one acre, either for fresh market or for processing, cherries of any variety, and who upon request, provides proof of commodity sale. For purposes of voting, “producer” or “grower” does not include a person who purchases a cherry crop on the tree, and the right to vote remains with the person selling the cherry crop on the tree to the purchaser.
“Production research” means any research related to the production, harvest, and postharvest handling of cherries, other than marketing research.
ARTICLE 3. The California Cherry Commission [76051. - 76067.]
There is in state government the California Cherry Commission. The commission is composed of eight cherry producers or grower-handlers who are not shippers, two cherry shippers, and one public member. Producers and grower-handlers within the respective districts shall elect two producers or grower-handlers from District 1, one producer or grower-handler from District 2, three producers or grower-handlers from District 3, one producer or grower-handler from District 4, and one producer or grower-handler from District 5.
Cherry shippers shall elect two shipper members.
The public member shall be appointed to the commission by the director from nominees recommended by the commission.
The director and other appropriate individuals as determined by the commission shall be ex officio members of the commission.
The districts consist of the following:
District 1 is all that area in San Joaquin County east of Jack Tone Road or any extension of that road.
District 2 is all that area in San Joaquin County north of Live Oak Road and west of Jack Tone Road or any extension of that road.
District 3 is all that area in San Joaquin County not included in Districts 1 and 2, and all of Stanislaus County.
District 4 is all of San Benito and Santa Clara Counties.
District 5 is all other counties.
The boundaries of any district may be changed by a two-thirds vote of the commission, which is concurred in by the director, to insure proper representation by producers. The boundaries need not coincide with county lines.
When the director is required to concur in a decision of the commission, he or she shall indicate his or her response to the commission within 15 working days after receiving the decision. The response may be a request that additional information be provided.
The director may require the commission to correct or cease any existing activity or function which is determined by the director not to be in the public interest or which is in violation of this chapter.
If the commission refuses or fails to cease the activities or functions or to make any corrections required by the director, the director may, upon written notice, suspend all or a portion of the activities or functions of the commission until the commission complies with the director.
Actions of the commission in violation of the written notice are without legal force or effect. The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
Upon service of the written notice, the director shall notify the commission in writing of the specific acts which he or she determines are not in the public interest or are in violation of this chapter, and the reasons for requiring a cessation or correction of specific existing or proposed activities or functions. The director may make recommendations that will make the activities or functions acceptable.
The commission or the director may bring an action for judicial relief from the director’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his or her duties and responsibilities under this chapter. However, the court may, if it finds that the director acted arbitrarily or capriciously in restricting activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to the action.
Each member of the commission, except the ex officio members, shall have an alternate member to be elected in the same manner as the member. An alternative member shall, in the absence of the member for whom he or she is an alternate, serve in place of the member on the commission, and shall have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or the disqualification of a member, the alternate shall act as a member of the commission until a successor is elected and has qualified.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status making that member ineligible to serve, or due to death, removal or resignation, shall be filled, for the unexpired portion of the term, by a majority vote of the commission. However, the person chosen shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to fill. Qualifications of any person to fill a vacancy on the commission shall be certified in writing to the director. The director shall notify the commission if he or she determines that the person is not qualified.
Any producer member, grower-handler member, or the member’s alternate on the commission shall be an individual or an employee representing a producer who has a financial interest in producing, or causing to be produced, cherries for market or processing. The qualifications of a producer member, grower-handler member, and an alternate producer or grower-handler member shall be maintained during the entire term of office.
Any shipper member or his or her alternate shall be an individual or an employee representing a shipper who has a financial interest in handling cherries for market or processing. The qualifications of a shipper member and an alternate shipper member shall be maintained during the entire term of office.
Not more than one producer member, grower-handler member, or shipper member shall be a person employed by, or connected in a proprietary capacity with, the same corporation, firm, partnership, association, or business organization.
The public member or his or her alternate on the commission, shall have all the powers, rights, and privileges of any other member on the commission. The public member shall not have any financial interest in the cherry industry.
The term of office of all members of the commission, except any ex officio member, shall be two years from the date of their election and until their successors are qualified. However, of the first members of the commission, one-half of the producers or grower-handlers and shippers shall serve for one year, and one-half of the producers or grower-handlers and shippers shall serve for two years, with the determination of term of each such member to be made by lot at the time of election. Terms of office of each commissioner shall be limited to four consecutive terms, except that any member selected for a one-year term may serve not more than five consecutive terms.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be admissable in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
The director or his or her representative shall be notified and may attend meetings of the commission, including committee meetings.
No member of the commission or member of a committee established by the commission shall receive a salary. Each member of the commission, except ex officio government members, and each member of a committee established by the commission who is a nonmember of the commission may receive a sum of not to exceed one hundred dollars ($100) per day, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission, together with the necessary traveling expenses and meal allowances, as approved by the commission.
All money received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission, shall be deposited in any bank that the commission may designate and shall be disbursed by order of the commission through any agent or agents that it may designate for that purpose. Any such agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business as such in the state in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission.
No member of the commission or alternate member, or any employee or agent therefor, shall be personally liable on the contracts of the commission; be responsible individually in any way to any producer, processor, shipper, or grower-handler, or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime; or be held responsible individually for any act or omission of any member of the commission. Liability shall be several and not joint, and no member of the commission shall be liable for the default of any other member of the commission.
ARTICLE 4. Powers and Duties of the Commission [76081. - 76099.]
The powers and duties of the commission include, but are not limited to, all of the powers and duties enumerated in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, operating procedures, and orders for carrying out the provisions of this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
The commission may administer and enforce this chapter, and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, proper or advisable effectuation of the purposes of this chapter. The commission may, in this connection, enter into contracts for services with public and private agencies as the commission determines is necessary to carry out this chapter.
The commission may appoint its own officers, including a chairman, one or more vice chairmen, and any other officers that it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, that are necessary to carry out the provisions of this chapter. The commission may retain a management firm or the staff from any board, commission, or committee of the state to perform the functions prescribed by this section under the control of the commission. If the person engages in any conduct which the director determines is not in the public interest or which is in violation of this chapter, the director shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission.
In the event that the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission, such as a processor or shipper advisory committee, to advise the commission in carrying out the provisions of this chapter.
The commission may establish offices, incur expenses, enter into contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments that may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the director.
A summary of the audit shall be made a part of an annual report to all producers of cherries, copies of which shall also be submitted to the Legislature and the department. In addition, the director may, as determined necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may promote the sale of cherries by advertising and other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for cherries, and also may educate and instruct the public with respect to the uses, healthful properties, and nutritional value of cherries.
The commission may educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling cherries; make market surveys and analyses; present facts to, and negotiate with, state, federal, and foreign agencies on matters which affect the provisions of this chapter.
The commission may make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements that the commission may deem necessary for carrying out the purposes of this chapter.
The commission may conduct and contract with others to conduct scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding this chapter. In connection with the research, the commission may accept contributions of, or match, private, state, or federal funds that may be available for its purposes, and employ or make contributions of funds to other persons or state or federal agencies conducting the research.
The commission may publish and distribute, without charge, a bulletin or other communication for dissemination of information to producers, shippers, grower-handlers, and processors.
The commission may establish an assessment rate to defray operating costs of the commission.
The commission may establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the director prior to disbursement of funds, except for disbursements made pursuant to Section 76086.
The commission shall submit to the director, for his or her concurrence, an annual statement of contemplated activities authorized under this chapter.
The commission may manage, if requested by an advisory board, a board of directors, or any other authorized agent, any governmental program establishing grades and standards for the cherry industry.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
ARTICLE 5. Implementation and Voting Procedures [76111. - 76120.]
Within 90 days after a request by the proponents of the commission, or as soon thereafter as possible, the director shall establish a list of producers eligible to vote on implementation of this chapter. In establishing the list, the director may require that processors, shippers, county agricultural commissioners, cherry producers and others, submit the names and mailing addresses of all producers. The director may also require that the information provided include the quantity of cherries marketed by producers and their district members or, in the alternative, may establish procedures for receiving the information at the time of the vote specified in Section 76112. The request for the information shall be in writing. The information shall be filed within 30 days following receipt of the written notice.
Any producer whose name does not appear upon the director’s list may have his or her name established on the list by filing with the director a signed statement, identifying himself or herself as a producer. Failure to be on the list does not exempt the producer from paying assessments.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the director finds, in a referendum conducted by the director, that at least 40 percent of the total number of producers from the list established by the director pursuant to this article participated and that either of the following occurred.
Sixty-five percent or more of the producers who voted in the referendum voted in favor of the provisions of this chapter, and the producers so voting marketed a majority of the total quantity of cherries in the preceding season by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of the provisions of this chapter, and the producers so voting marketed 65 percent or more of the total quantity of cherries in the preceding season by all of the producers who voted in the referendum.
The director shall establish a period in which to conduct the referendum which shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures as may be necessary to conduct the referendum.
If the initial period established is less than 60 days, the director may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the director finds that a favorable vote has been given as provided in this article, he or she shall certify and declare this chapter operative and give notice of the favorable vote to all producers whose names and addresses are on file with the director.
If the director finds that a favorable vote has not been given as provided in this article, he or she shall so certify and declare that this chapter is not operative. The director may conduct another implementation referendum vote one year or more after the previous vote has been taken.
Upon certification of the commission, the director shall contact, by mail, every producer and grower-handler in each district and every shipper or shall call meetings of producers and grower-handlers in each district for the purpose of nominating and electing persons for appointment to the commission . All producers, grower-handlers, and shippers on the director’s list shall be given written notice of any meeting at least 15 days prior to the meeting date.
To be eligible for election to the commission, producer, grower-handler, and shipper nominees must present to the director a nomination petition with signatures of at least six eligible producers, grower-handlers, or shippers from the district from which the nominee is seeking election.
Subsequent to the first election of members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to the nomination and election procedures established by the commission with the concurrence of the director.
Prior to the referendum vote conducted by the director pursuant to this article, the proponents of the commission shall deposit with the director any amounts that the director may deem necessary to defray the expenses of preparing the necessary lists and information and conducting the vote. Any funds not used in carrying out the provisions of this article shall be returned to the proponents of the commission who deposited the funds with the director.
Upon establishment of the commission, the commission is authorized to reimburse the proponents of the commission for any funds deposited with the director which were used in carrying out the provisions of this article, and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [76141. - 76148.]
The commission shall, not later than April 20 of each year, establish the assessment for the following marketing season, which shall not exceed fifteen cents ($0.15) per 18-pound container or its equivalent in volume in fresh shipping cherries, or three-tenths of one cent ($0.003) per pound for processing cherries.
A fee greater than that specified in subdivision (a) may be charged only if approved by producers pursuant to Section 76112.
This chapter does not apply to cherries produced for the producer’s home use, to cherries used only for ornamental purposes, or to cherries grown on land totaling one acre or less by a person who is not a producer for purposes of this chapter. However, a person subject to this section shall file an affidavit with the commission establishing that his or her cherries are exempt from this chapter.
Every processor, shipper, and grower-handler shall keep a complete and accurate record of all cherries processed, shipped, or grower handled by him or her, with the name of the producer whose cherries were processed, shipped, or handled. The records shall be in simple form and contain any information that the commission prescribes.
The records shall be kept by the processor, shipper, or grower-handler for a period of two years and offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the director from producers, processors, shippers, or grower-handlers is confidential and shall not be disclosed except when required in a judicial proceeding. Information on volume shipments, crop value, and any other related information which is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other such information which the processors, shippers, or grower-handlers request from the commisson to receive in total, excluding the individual processor, shipper, or grower-handler information, may be disclosed to the commission.
Assessments shall be upon the producer. The first shipper, grower-handler, or processor of cherries being assessed shall deduct the assessment from amounts paid by him or her to the producer, and shall be a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission.
Every processor, shipper, and grower-handler is personally liable for the payment of the collected assessments, and failure of the processor, shipper or grower-handler to collect the assessment from any producer shall not exempt any processor, shipper, or grower-handler from liability for these funds.
Any assessment which is levied as provided for in this chapter, is a personal debt of every producer so assessed. Failure of a processor, shipper, or grower-handler to collect the assessment does not relieve the producer of the obligation to pay the assessment.
Any producer, processor, shipper, or grower-handler who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of such assessment determined to be due and, in addition, one and one-half percent interest per month on the unpaid balance.
ARTICLE 7. Actions and Penalties [76161. - 76163.]
It is unlawful to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission.
When engaged in the shipping, processing or handling of cherries, or in the wholesale or retail trade of cherries, to fail or refuse to furnish the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom cherries have been received and the quantity received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the director. The determination of the director shall be subject to judicial review upon petition of the superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance, respecting this chapter and the rules and regulations adopted under this chapter.
A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief. A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing required by Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Sections 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until there is full compliance with and satisfaction of the judgment.
Upon a favorable verdict for the commission, the commission may receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
ARTICLE 8. Continuation or Suspension and Termination [76181. - 76185.]
Except as otherwise specified in this article, the commission shall cause a referendum to be conducted among producers pursuant to Article 5 (commencing with Section 76111) every five years following implementation of this chapter to determine whether the operation of this chapter is reapproved and shall be continued in effect. The vote shall be declared in favor of continuation if the director determines from the referendum that a majority of the eligible producers voting in the referendum voted to continue the operation of this chapter. If the director finds that a favorable vote has been given, he or she shall so certify and all provisions of this chapter shall remain effective. If the director finds that a favorable vote has not been given, he or she shall so certify and declare the operation of the provisions of this chapter and the commission suspended upon expiration of the marketing season ending December 31, 1990. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 76184. No bond or security shall be required for any such referendum.
If a referendum is conducted as the result of a petition pursuant to Section 76183, it shall be conducted every fifth year following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the director that the operation of this chapter be suspended. No suspension shall become effective until the expiration of the current marketing season. The director shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with him or her requesting the suspension, signed by 20 percent of the producers by number who produced not less than 20 percent of the volume in the immediately preceding season, cause a referendum to be conducted among the producers to determine if the operation of this chapter shall be suspended. However, the director shall not cause a referendum to be conducted as a result of the petition unless the petitioner shows by the weight of evidence that the operation of this chapter has not tended to effectuate its declared purposes. The director shall establish a referendum period, which shall not be less than 10 nor more than 60 days in duration. The director may prescribe any additional procedures that may be necessay to conduct the referendum. At the close of the established referendum period, the director shall tabluate the ballots filed during the period. If at least 40 percent of the total number of producers from the list established by the director participate in the referendum, the director shall suspend the operation of this chapter, if he or she finds either one of the following has occurred:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed a majority of the total quantity of cherries marketed in the preceding marketing seasons by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed 65 percent or more of the total quantity of cherries marketed in the preceding season by all of the producers who voted in the referendum.
The director shall terminate the commission at the end of the current marketing season if requested in writing, within a 90-day period, by at least 51 percent of the eligible producers who are directly affected and who produce at least 51 percent of the volume of the product.
The person or persons originating the request shall file a written notice with the director in a manner that establishes the date a request is initiated. Any person may withdraw his or her name for the petition requesting the termination prior to the time the request is presented to the director. The signatures to the petition requesting the termination need not all be appended to one sheet of paper. Each person signing the petition shall add to his or her signature his or her place of business, giving the street and number. If no street and number exist, then a designation of the place of business shall be given which will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension of the operation of this chapter, the operations of the commission shall be concluded and any and all moneys remaining held by the commission, collected by assessments and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding current marketing season. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to these persons, any such moneys remaining and any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into the University of California for continued research on cherries.
Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all producers affected by the suspension whose names and addresses are on file.
CHAPTER 15. California Sheep Commission [76201. - 76384.]
ARTICLE 1. Declaration and General Provisions [76201. - 76207.]
The production, slaughtering, manufacturing and distributing of sheep and wool, and the products derived therefrom constitute an important industry of this state which not only provides substantial and necessary revenues for the state and employment for its citizens, but also furnishes essential food and fiber vital to the public health and welfare.
The maintenance and expansion of the sheep industry of California and of its local, national, and foreign markets, is necessary to assure the consuming public of a continuous supply of the vital food and fiber, and the maintenance of needed levels of income for those engaged in the sheep industry of this state.
It is necessary for human nutrition and public benefit that the public be made aware of accurate and scientific information relative to the beneficial qualities of sheep, wool, and the products derived therefrom, and the values and uses thereof, and of the production and distribution costs necessary to make sheep, wool, and the products derived therefrom, available to the consuming public.
The production and marketing of sheep, wool, and the products derived therefrom, produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, nor by any individual in accordance with this chapter or with the rules and regulations adopted under the chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Fair Trade Act (Chapter 3 (commencing with Section 16900) of that Part 2), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the chapter, which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared, as a matter of legislative determination, that members of the commission are intended to represent and further the interest of a particular agricultural industry concerned, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are appointed to the commission, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, marketing research, production research, and protection of sheep.
ARTICLE 2. Definitions [76221. - 76233.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Sheep” means, but is not limited to rams, ewes, wethers, and lambs.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Sheep Commission.
“Commissioner” means any member of the commission.
“Districts” shall consist of the following:
District 1 consists of the Counties of Del Norte, Humboldt, Mendocino, and Lake.
District 2 consists of the Counties of Sonoma, Napa, and Marin.
District 3 consists of the Counties of Siskiyou, Trinity, Tehama, Modoc, Lassen, Plumas, and Shasta.
District 4 consists of the Counties of Glenn, Colusa, Butte, and Yolo.
District 5 consists of the County of Solano.
District 6 consists of the Counties of Sierra, Sutter, Yuba, Sacramento, El Dorado, Placer, and Nevada.
District 7 consists of the Counties of Calaveras, Amador, San Joaquin, Stanislaus, Tuolumne, Alpine, Alameda, Contra Costa, Santa Clara, and San Mateo, and the City and County of San Francisco.
District 8 consists of the Counties of Merced, Monterey, Mariposa, Santa Cruz, San Luis Obispo, San Benito, and Madera.
District 9 consists of the Counties of Fresno, Kings, and Tulare.
District 10 consists of the Counties of Kern, Mono, and Inyo.
District 11 consists of the Counties of Los Angeles, Imperial, San Diego, San Bernardino, Riverside, Santa Barbara, Ventura, and Orange.
The boundaries of any district may be changed by a two-thirds vote of the commission, which is concurred in by the director, when necessary to maintain similar total production among the districts and to ensure proper representation by producers. These boundaries need not coincide with county lines.
“Handler” means any person engaged in the marketing of wool which he or she has produced or purchased or acquired from a producer, or is marketing on behalf of a producer whether as owner, agent, employee, broker or otherwise. A producer who markets wool to an out-of-state handler shall be considered the handler for purposes of this chapter.
“Market” means to sell, ship, distribute, or otherwise handle wool.
“Marketing research” means any research relating to the marketing of sheep, wool, and the products derived therefrom.
“Marketing year” or “fiscal year” means the period beginning April 1 of any year and ending March 31 of the following year.
“Producer” means any person in this state who raises, breeds, grows, or feeds sheep, and markets, or causes to be marketed, the wool derived therefrom and who, upon request, provides proof of commodity marketing during the preceding marketing year. “Producer” does not include any person who markets 100 pounds or less of wool in the preceding marketing year.
“Production research” means any research relating to the production of sheep, wool, and the products derived therefrom.
“Ex officio member” means a nonvoting member of the commission.
“Wool” means the shorn fiber of live sheep in the grease basis, including offsort wool or offsorts in the natural state before cleaning or scouring.
For the purposes of this chapter, the following terms have the following meanings:
“Offsort wool or offsorts” means tags, bellies, or crutchings.
“Tags” means wool which has become discolored from urine or feces, dung locks, or floor sweepings.
“Bellies” means wool which has been shorn from the belly of the sheep.
“Crutchings” means wool which has been shorn from the crotch area of a sheep.
ARTICLE 3. The California Sheep Commission [76251. - 76265.]
There is in the state government the California Sheep Commission. The commission shall be composed of 13 sheep producers and one public member. Producers within districts 1 to 9, inclusive, shall each elect one producer to serve on the commission. Producers within districts 10 and 11 shall each elect two producers to serve on the commission.
The public member shall be appointed to the commission by the director from nominees recommended by the commission.
The director and other appropriate individuals, as determined by the commission, shall be ex officio members of the commission.
The director may require the commission to correct or cease any existing activity or function which is determined by the director not to be in the public interest or which is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make these corrections as required by the director, the director may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the director has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
Upon service of the written notice, the director shall notify the commission in writing of the specific acts which he or she determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and he or she may make recommendations that will make the activities or functions acceptable.
The commission or the director may bring an action for judicial relief from the director’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
When the director is required to concur in a decision of the commission, he or she shall indicate his or her response to the commission within 15 working days from notification of the decision. The response may be a request that additional information be provided.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his or her duties and responsibilities pursuant to this chapter. However, the court may, if it finds that the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to that action.
Each member of the commission, except the ex officio members, shall have an alternate member to be elected in the same manner as the member. An alternate member shall, in the absence of the member for whom he or she is an alternate, serve in place of the member on the commission, and shall have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or disqualification of a member, the alternate shall act as a member on the commission until a successor is elected and has qualified.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status, making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled, for the unexpired portion of the term, by a majority vote of the commission. That person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to fill.
Any producer member or his or her alternate on the commission shall be an individual or an employee representing a producer who has a financial interest in producing, or causing to be produced, wool for market. The qualifications of a producer member and an alternate producer member shall be maintained during the entire term of office.
The public member or his or her alternate on the commission, shall have all the powers, rights, and privileges of any other member on the commission. The public member shall not have any financial interest in the sheep or wool industry.
The term of office of all members of the commission, except ex officio members, shall be two years from the date of their election and until their successors are qualified. However, of the first members of the commission, one-half of the producers shall serve for one year, and one-half of the producers shall serve for two years, with the determination of the term of each such member made by lot at the time of the election.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state and shall be prima facie evidence of the truth of all statements therein.
The director or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission.
No member of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission, except ex officio government members, and each member of a committee established by the commission who is a nonmember of the commission, may receive a sum not to exceed one hundred dollars ($100) per day, as established by the commission. This per diem shall be paid to members for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission. Members shall also receive the necessary traveling expenses and meal allowances, as approved by the commission.
All funds received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks which the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member of the commission, alternate member, or any employee or agent thereof, is personally liable for the contracts of the commission. No member of the commission, alternate member, or any employee or agent thereof, is responsible individually in any way to any producer, processor, handler, or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member of the commission, alternate member, or any employee or agent thereof, is responsible individually for any act or omission of any other member of the commission. Liability is several and not joint, and no member of the commission, alternate member, or any employee or agent thereof, is liable for the default of any other member of the commission.
ARTICLE 4. Powers and Duties of the Commission [76281. - 76298.]
The powers and duties of the commission shall include, but are not limited to, all of those contained in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, operating procedures, and orders for carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
The commission may administer and enforce this chapter and to do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for proper or advisable effectuation of this chapter. The commission’s authority includes, but is not limited to, entering into contracts for services with public and private agencies which are deemed necessary by the commission to carry out this chapter.
The commission may appoint its own officers, including a chairman, one or more vice chairmen, and such other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out the provisions of this chapter. The commission may retain a management firm or the staff from any board, commission, or committee of the state to perform the functions prescribed by this section under the control of the commission. If the person engages in any conduct which the director determines is not in the public interest or which is in violation of this chapter, the director shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. In the event that the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission including, but not limited to, a committee of handlers, to advise the commission in carrying out this chapter.
The commission may establish offices, incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the director. A summary of the audit shall be made a part of an annual report to all producers, copies of which shall also be submitted to the Legislature and the department. In addition, the director may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may promote the sale of lamb, wool, and the products derived therefrom by advertising and other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for lamb and wool, and to educate and instruct the public with respect to the many and varied uses of lamb, wool, and the products derived therefrom.
The commission may educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling wool.
The commission may make market surveys and analyses.
The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters which affect this chapter.
The commission may make, in its name, contracts to render service in formulating and conducting plans and programs and any other contracts or agreements that the commission may deem necessary for carrying out the purposes of this chapter.
The commission may conduct, and contract with others to conduct, research, including the study, analysis, dissemination, and accumulation of information obtained from the research or elsewhere, regarding this chapter. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate, and notwithstanding any other provision of law, may be maintained in confidence by the commission and not disseminated to any person not subject to this chapter.
The commission may accept contributions of, or match private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies for purposes of promoting, enhancing, and maintaining sheep industry.
The commission may collect information, including, but not limited to, industry statistics, and may publish and distribute, without charge, a bulletin or other communication for dissemination of information to producers and handlers.
The commission may establish an assessment rate to defray operating costs of the commission.
The commission may establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the director prior to disbursement of funds, except for disbursements made pursuant to Section 76286.
The commission may submit to the director, for his or her concurrence, an annual statement of contemplated activities authorized pursuant to this chapter.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
ARTICLE 5. Implementation and Voting Procedures [76311. - 76320.]
Not later than April 1, 1999, or as soon thereafter as possible, the secretary shall establish a list of producers eligible to vote on implementation of this chapter. In establishing the list, the secretary may require that handlers, producers, and others submit the names and mailing addresses of all producers. The secretary also may require that the information provided include the quantity of wool produced by each producer or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 76312. The request for the information shall be in writing. The information shall be filed within 30 days following receipt of the written request.
Any producer whose name does not appear on the secretary’s list may have his or her name established on the list by filing with the secretary a signed statement, identifying himself or herself as a producer. Failure to be on the list does not exempt the producer from paying assessments.
Prior to the certification of a favorable vote as provided in Section 76315, the secretary shall allow producers to view the list of names of producers created pursuant to subdivision (a). The list shall be viewed only at the department and shall not be photocopied.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the director finds in a referendum vote conducted by the director that at least 40 percent of the total number of producers from the list established by the director pursuant to this article, participate, and that either of the following occurred:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of the provisions of this chapter, and the producers so voting marketed a majority of the total quantity of wool in the preceding season by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the total quantity of wool in the preceding season by all of the producers who voted in the referendum.
The director shall establish a period in which to conduct the referendum which shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures that may be necessary to conduct the referendum. If the initial period established is less than 60 days, the director may extend the period, however the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the director finds that a favorable vote has been given as provided in Section 76312, he or she shall certify and give notice of the favorable vote to all producers whose names and addresses may be on file with the director.
If the director finds that a favorable vote has not been given as provided in Section 76312, he or she shall certify and declare all provisions of this chapter inoperative.
Upon certification of the commission, the director shall contact all producers in each district by mail, or call meetings of producers in each district for the purpose of nominating and electing persons for appointment to the commission. All producers on the director’s list shall be given written notice of any election meetings at least 15 days prior to the meeting date.
To be eligible for election to the commission, producer nominees must present to the director a nomination petition with the signatures of at least 10 eligible producers from the district from which the nominee is seeking election.
Subsequent to the first election of members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures as shall be established by the commission with the concurrence of the director.
Prior to the referendum vote conducted by the director pursuant to Section 76312, the proponents of the commission shall deposit with the director the amount that the director deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any funds not used in carrying out Section 76312 shall be returned to the proponents of the commission who deposited the funds with the director.
Upon establishment of the commission, the commission is authorized to reimburse the proponents of the commission for any funds deposited with the director which were used in carrying out Section 76312, and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [76341. - 76347.]
The commission shall, not later than March 31 of each year, or as soon thereafter as possible, establish the assessment for the following marketing year.
The assessment for the first marketing year shall be six cents ($0.06) per pound on all wool marketed by producers.
For the second and subsequent marketing years, the assessment shall not exceed eight cents ($0.08) per pound on all wool marketed by producers, as determined by the commission, unless a greater fee is approved by producers pursuant to the procedures specified in Section 76381.
The commission may establish an assessment rate that is different for offsort wool or offsorts than for other wool, provided that the rate does not exceed the maximum assessment authorized in subdivision (c).
The assessment rate for wool, other than offsort wool, shall not be increased by more than one-half of one cent ($0.005) each marketing year.
A fee greater than twelve cents ($0.12) per pound may not be charged unless that fee is approved by the Legislature by statute.
Assessments provided for in this section shall be upon the producer. The handler shall deduct the assessment from amounts paid by him or her to the producer and shall be a trustee of those funds until they are paid to the commission at the time and in the manner prescribed by the commission.
This chapter does not apply to the wool produced only for the producer’s home use. However, the producer shall file an affidavit with the commission establishing that he or she has not marketed the wool. The commission shall then determine whether the affidavit should be approved.
This article applies to wool that was removed from sheep after December 31, 1998.
Every handler shall keep a complete and accurate record of all wool handled with the name of the producer whose wool was handled. When the wool handled was acquired from a person who is not a producer, the handler shall determine from that person the name of the producer for the purposes of the records required by this section. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be preserved by the handler for a period of five years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the director from producers or handlers or any other source, and all lists of producers in the possession of the commission or the director are confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding regarding this chapter. Information on volume shipments, commodity value, and other related information which is required for reports to governmental agencies, financial reports made to the commission or aggregate sales and inventory information, and any other information which the handlers request from the commission to receive in total, excluding individual handler information, may be disclosed by the commission.
Every handler shall be personally liable for the payment of collected assessments and failure of a handler to collect the assessment from a producer shall not exempt the handler from liability.
Any assessment which is levied as provided for in this chapter is a personal debt of every producer so assessed. Failure of a handler to collect the assessment shall not relieve the producer of the obligation to pay the assessment.
Any producer or handler who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, 112 percent interest per month on the unpaid balance.
When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failing to collect or make payment of assessments, of which a corporate handler may be subject to under this chapter, shall also include identical liability upon each director or officer of the corporation.
ARTICLE 7. Actions and Penalties [76361. - 76363.]
It is unlawful for any person to do any of the following:
Fail or refuse to render or furnish a report, statement, or record required by the commission.
Willfully render or furnish a false report, statement, or record required by the commission.
When engaged in the handling of wool, to fail or refuse to furnish the commission or its duly authorized agents, information concerning the name and address of the producers or other persons from whom wool has been received and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for that purpose. Appeals from decisions of the commission may be made to the director. The determination of the director shall be subject to judicial review upon petition, filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance, regarding this chapter and the rules and regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Section 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the commodity subject to this chapter until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
ARTICLE 8. Continuation or Suspension and Termination [76381. - 76384.]
Every five years, commencing with the 2004–05 marketing year, the secretary shall hold a hearing to determine whether the operation of this chapter shall be continued in effect. If the secretary finds, following the hearing, that a substantial question exists among producers assessed under this chapter as to whether the operation of this chapter shall be continued in effect, the secretary shall conduct a referendum vote among producers to determine whether the operation of this chapter shall be approved and continued in effect. A favorable vote under this section shall be found if the secretary determines from the referendum that a majority of the eligible producers voting in the referendum voted in favor of continuing the operations of this chapter.
If the secretary finds, following the referendum vote, that a favorable vote has been given as provided in subdivision (a), the secretary shall so certify and this chapter shall remain in operation. If the secretary finds that a favorable vote has not been given as provided in subdivision (a), the secretary shall so certify and declare the operation of this chapter and the commission suspended upon expiration of the then current marketing year. At that time, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 76383.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the director that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing season. The director shall, upon receipt of the recommendation, or may after a public hearing to review a petition filed with him or her requesting a suspension and signed by 20 percent of the producers by number who produced not less than 20 percent of the volume of wool in the immediately preceding season, hold a referendum among the producers to determine if the operations of the commission shall be suspended. However, the director shall not hold a referendum as a result of the petition unless the petitioner shows, by the weight of evidence, that the operation of this chapter has not tended to effectuate its declared purposes. The director shall establish a referendum period, which shall not be less than 10 days nor more than 60 days in duration. The director may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the director shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers from the list established by the director participate in the referendum, the director shall suspend the operation of this chapter if he or she finds either one of the following has occured:
Sixty-five percent or more of the producers, who voted in the referendum, voted in favor of suspension, and the producers so voting marketed 50 percent or more of the total quantity of wool marketed in the preceding marketing season by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed 65 percent or more of the total quantity of wool marketed in the preceding marketing season by all of the producers who voted in the referendum.
The secretary shall terminate the commission at the end of the current marketing year if the secretary finds that the termination of the commission is requested in writing, within a 90-day period, by at least 51 percent of the eligible producers that are directly affected that produce at least 51 percent of the volume of the product.
The person or persons originating the request shall file a written notice with the secretary in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the secretary.
The signatures to the petition requesting the termination need not all be appended to one sheet of paper. Each person signing the petition shall add to his or her signature his or her place of business, giving street and number. If no street and number exist, then a designation of the place of business shall be given which will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension of the operation of this chapter, the operation of the commission shall be concluded and any and all funds remaining held by the commission, collected by assessment and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing year. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the prorate refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate program conducted by the University of California or the California State University system, another state agency, or a federal agency that deals with the purposes of this chapter. If no program exists, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all producers affected by the suspension whose names and addresses are on file.
CHAPTER 16. California Salmon Council [76501. - 76981.]
ARTICLE 1. Short Title and Definitions [76501. - 76580.]
This chapter shall be known and may be cited as the “California Salmon Marketing and Development Act.”
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Council” means the California Salmon Council.
“Commercial salmon vessel operator” is a commercial fisherman who operates a commercial salmon vessel for which a valid commercial salmon vessel permit has been issued pursuant to Article 4.5 (commencing with Section 8230) of Chapter 2 of Part 3 of Division 6 of the Fish and Game Code.
“Exporter” means any individual who is, or an individual working for a partnership, corporation, or any other business unit or organization which is, engaged in the export to a foreign nation or nations of salmon which has been landed in California.
“Fiscal year” means from April 1 of a year to March 31 of the next succeeding year.
“Fisherman” means an individual licensed to commercially harvest fish pursuant to Sections 7850 to 7852, inclusive, of the Fish and Game Code.
“Handler” means any of the following:
A processor.
A receiver.
A wholesaler.
An exporter.
An individual licensed or working for a partnership, corporation, or any other business unit or organization licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code and engaged in the California commercial salmon fishery.
“Individual” means a person, as defined in Section 64506.
“Marketing association” means any commercial fishermen’s organization established on either a local, county, or statewide level, incorporated in this state, to enable fishermen to collectively negotiate and issue orders and agreements with receivers for the purchase of their catches, or to otherwise engage in activities permitted of agricultural cooperatives, and whose members are involved in the salmon fishery.
“Processor” means any individual licensed or working for a partnership, corporation, or any other business unit or organization licensed pursuant to Section 8034 of the Fish and Game Code and engaged in the California commercial salmon fishery.
“Receiver” means any individual licensed or working for a partnership, corporation, or any other business unit or organization licensed pursuant to Section 8033 of the Fish and Game Code and engaged in the California commercial salmon fishery.
“Salmon” means the following species of fish:
King or chinook salmon (Oncorhynchus tshawytscha).
Silver or coho salmon (Oncorhynchus kisutch).
Pink or humpback salmon (Oncorhynchus gorhuscha).
“Salmon fishery” means either of the following:
One or more species of salmon taken offshore California with troll lines for commercial usage, treated as a unit for the purposes of conservation, restoration, management, marketing, or promotion.
Any economic activity involving the harvesting, receiving, processing, manufacturing, or distributing of salmon described in subdivision (a) and products therefrom.
“Salmon products” means any item manufactured which contains 50 percent or more of salmon flesh or parts from salmon, including the head, scales, skin, bone, or entrails, and which is intended for human consumption, medicine, animal feed, fertilizer, or other purposes.
“Wholesaler” means any individual licensed or working for a partnership, corporation, or any other business unit or organization licensed pursuant to Section 8035 of the Fish and Game Code and engaged in the California commercial salmon fishery.
ARTICLE 2. General Provisions [76600. - 76605.]
The Legislature finds and declares that this chapter is enacted in the exercise of the power of this state for the purposes of protecting and furthering the public health and welfare.
The Legislature further finds and declares that the salmon fishery of this state is affected with a public interest, in that, among other things:
The harvesting, processing, manufacturing, and distributing of salmon and salmon products constitute a paramount industry of this state, which not only provides substantial and required revenues for the state and its political subdivisions and employment and a means of livelihood for many thousands of its population, but which also furnishes essential foods that are vital to the public health and welfare.
The development of the salmon fishery requires, in addition to the protection and restoration of spawning and nursery habitat in rivers, rearing programs designed to rebuild salmon populations, the full utilization and efficient operation of mitigation fish hatcheries, and existing regulations that assure adequate returns of spawning salmon, an aggressive marketing program, and a program to allow for the purchase, during years of low abundance, of the allocation of fish provided to other salmon users in order to assure that the commercial salmon fishery has the maximum access to healthy salmon populations.
The stabilization, maintenance, and expansion of the salmon fishery of California, and of the state, nationwide, and foreign markets for its products are necessary to assure the consuming public an adequate supply of foods which are indispensable in a proper human diet, to protect, for the state and its political subdivisions, a necessary source of tax revenue, to provide and maintain an adequate standard of living for a segment of the population of this state, to maintain proper wage scales for those engaged in the salmon fishery, and to maintain existing employment.
The essentiality of salmon, low in fat and calories and naturally rich in Omega 3 fatty acids, in proper human nutrition and to the maintenance of a high level of public health is such as to require that the public be made thoroughly aware thereof, and be protected against misrepresentation and deception, by the dissemination of accurate and scientific information relative to the healthful qualities of salmon and salmon products, their various classifications and the food values and industrial and medicinal uses thereof, the methods, care and precautions necessary to their proper harvesting, processing, manufacturing, and distributing, and the necessary costs and expenses thereof, and the necessity and desirability on the part of the public of using and consuming salmon and salmon products of the highest standards of quality.
The Legislature declares that the purposes of this chapter are as follows:
Enable the salmon fishery, with the aid of the state, to develop, maintain, and expand the state, nationwide, and foreign markets for salmon and salmon products harvested, processed, manufactured, sold, or distributed in this state for human consumption, and the use and consumption of salmon and salmon products in those markets.
Enable the salmon fishery to purchase, where there are willing sellers, the allocation rights to harvest salmon, as they may exist, of other salmon user groups to provide fishermen, and thereby the salmon fishery, greater access to salmon stocks than otherwise may have been provided pursuant to a conservation, management, or allocation agreement.
In aid, but not in limitation, of the purpose in subdivision (a), authorize and enable the secretary to formulate and effectuate, directly or in cooperation with other agencies, organizations, including the Oregon Salmon Commission, and instrumentalities that are specified in this chapter, sales stimulation and consumer or other educational programs designed to increase the use and consumption of salmon and salmon products for human consumption.
Provide funds for the administration and enforcement of this chapter by mandatory fees to be collected in the manner prescribed in this chapter.
This chapter shall be liberally construed.
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, that invalidity does not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
A violation of this chapter is a misdemeanor.
ARTICLE 3. Administration [76650. - 76652.]
The secretary shall administer and enforce this chapter, and may exercise any of the administrative powers that are conferred by Sections 11180 to 11191, inclusive, of the Government Code upon a head of a department. In order to effectuate the declared purposes of this chapter, the secretary may contract to carry out the declared intent and purposes of this chapter.
Upon recommendation by the council, the secretary may adopt, consistent with this chapter, any regulations that cover the administration and enforcement of this chapter that may be necessary to carry out the purposes and attain the objectives of this chapter, except the secretary shall not engage in any salmon promotion activity or pursue the purchase of allocation rights to harvest salmon without the approval of a majority of the voting members of the council.
Upon the adoption of any regulations under this chapter, a copy of the regulations shall be displayed on the department’s Internet Web site. No regulation shall become effective until five days after the date of display on the Internet Web site and mailing to every marketing association and every receiver that is directly affected by the regulations whose name and address may be on file in the office of the secretary and to every person who files in the office of the secretary a written request for a copy of the regulations.
ARTICLE 4. California Salmon Council [76700. - 76719.]
There is in the state government the California Salmon Council. The council shall be composed of nine voting members and their alternates, and three nonvoting members.
If handlers have become subject to this chapter pursuant to Article 9.5 (commencing with Section 76961), the council shall be composed of 11 voting members and their alternates, and three nonvoting members.
The voting members of the council shall be appointed by the secretary, after consultation with the Director of Fish and Wildlife, giving due consideration to proper geographic distribution.
The nine members shall include:
Five commercial salmon vessel operators or their representatives, and their alternates.
Two handlers who are receivers or processors or their representatives, and their alternates.
One representative of a handler who is an exporter or a wholesaler, and an alternate.
One public member, and an alternate.
If handlers become subject to this chapter pursuant to Article 9.5 (commencing with Section 76961), the 11 members shall include:
The commercial salmon vessel operators and their alternates shall be selected from lists of nominees submitted by marketing associations and any organization deemed to represent the majority of organized commercial salmon vessel operators, and from nominations by individual commercial salmon vessel operators.
The receivers, processors, wholesalers, or exporters and their alternates shall be selected from lists of nominees submitted by an organization deemed to represent the majority of those organized groups in the state, and from individual receivers, processors, wholesalers, and exporters.
The public member and alternate shall be selected by the secretary from a list submitted by the commercial salmon vessel operators and handler members of the council.
The voting members of the council shall each be appointed to a three-year term, except that in the first year of the council, three members shall be appointed to one-year terms; three members shall be appointed to two-year terms; and three shall be appointed to three-year terms.
The term of office of a member of the council shall begin on April 1 and expire on March 31.
Any vacancy in the membership of the council that occurs during the unexpired term shall be filled by the secretary for the unexpired term from the eligible nominees. No council member or alternate shall serve more than two consecutive three-year terms. Service as an alternate does not disqualify a person to then serve two additional terms as a member, and a member who was appointed for a one-year or a two-year term may serve two additional three-year terms.
The secretary may remove any member of the council or alternate for cause, and, upon that removal, there is a vacancy that shall be filled in the manner as provided for the unexpired term in Section 76705.
The secretary shall give notice, not later than January 31 of each year, of the vacancies that will exist upon the expiration of terms on March 31, in writing, to all marketing associations and organizations deemed to represent the majority of organized fishermen, or receivers, processors, wholesalers, and exporters, and shall issue any press releases and public statements that the secretary deems appropriate requesting nominations.
The notice requesting nominations shall indicate that nominations shall be mailed or sent electronically to the secretary at his or her office in Sacramento and that the secretary shall consider nominations sent electronically or postmarked not later than March 1.
Nominations shall set forth all of the following:
The name and address of each nominee.
Whether each nominee is being nominated as a member or alternate member.
The type of category for which the nominee is being nominated.
The list of qualifications and supporters, if any, for the nominee.
The name and address of the nominating marketing association, organization, or individual.
The nonvoting members of the council shall be representatives of the following agencies, as selected by the secretary:
The department.
The Department of Fish and Wildlife.
The California Sea Grant Program.
There is no fixed term for nonvoting members of the council. The agencies may, but are not required to, select an alternate for their representative.
A majority of the voting members of the council shall constitute a quorum for the transaction of all business, including the election of officers.
The council shall select annually from its voting members, to serve at its pleasure, a chair and vice chair.
The chair and vice chair, together with four other voting members, selected annually by the council, shall constitute the executive committee of the council. The executive committee shall have and exercise any powers of the council that the council may delegate to it.
If handlers have become subject to this chapter pursuant to Article 9.5 (commencing with Section 76961), the officers and the other members of the executive committee shall be equally divided between commercial salmon vessel operators and handlers.
The council shall hold two regular meetings in each year at times and places which are fixed by the council. The times for regular meetings shall be fixed so that there is an interval of at least four calendar months between the meetings. Consideration shall be given for the commercial fishing season and no regular meeting shall be held during the commercial salmon season. The council may meet in special meetings at any time and place at the call of the chair or upon the written request of five members of the council. The executive committee shall have two regular meetings each year at times and places which are fixed by it, and may meet in special meetings at any time and place at the call of the chair or on call of a majority of the members of the executive committee.
The voting members of the council shall receive forty dollars ($40) per day per diem for each day spent in actual attendance at the meetings or on the business of the council and shall be reimbursed for necessary traveling and other expenses incurred in the performance of their official duties, except, during the first year of council operations, when members shall serve at their own expense. Nonvoting members shall be reimbursed at the same rate as voting members when their agencies do not pay their expenses. Alternates shall only be paid expenses and per diem for meetings at which they serve as the replacement for the voting member.
No member of the council, except members of the executive committee, shall receive compensation for more than three days’ service per month. The chair may receive compensation for not more than seven days per month.
The secretary may require any employee or agent of the council to give a fidelity bond, executed by a surety company that is authorized to do business in this state, in favor of the secretary, in the sum, and containing any terms and conditions, that the secretary may prescribe. The cost of the fidelity bonds of employees or agents of the council shall be paid from the funds that are collected pursuant to this chapter.
No member or employee of the council shall be held responsible individually to any person for liability on any contract or agreement of the council. All salaries, expenses, costs, obligations, and liabilities that arise out of the administration and enforcement of this chapter are payable only from funds that are collected pursuant to this chapter.
An alternate member of the council shall sit as a voting member of the council if the member for whom he or she is an alternate fails for any reason to attend any meeting of the council. The alternate member shall be compensated and reimbursed in the same manner and to the same extent as a voting member when so serving. When so serving, the alternate member has all of the powers, duties, liabilities, and immunities of the member in whose place he or she is serving, except that the alternate to the chair or vice chair shall not succeed to the functions of these offices.
The Legislature finds and declares that commercial salmon vessel operators, receivers, processors, wholesalers, or exporters appointed to the council pursuant to this article are intended to represent and further the interest of a particular agricultural industry concerned, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds and declares that, with respect to persons who are appointed to the council, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 5. Powers and Duties [76750. - 76754.]
The duties of the council shall be advisory, except as to those duties that may be delegated to it by the secretary or as otherwise designated in this chapter. The council may, subject to the approval of the secretary, exercise any of the following powers that may be delegated to the council by the secretary:
Recommend to the secretary administrative regulations that relate to the administration and enforcement of this chapter.
Investigate all matters that affect the administration of this chapter, and to report violations of this chapter to the secretary.
Employ and, at its pleasure, discharge a manager and such clerical help and other employees as it deems necessary, and to prescribe their duties and powers and fix their compensation.
Contract with, or employ, and at its pleasure, discharge any other persons that it deems necessary, and in the cases of those persons it shall employ, to outline their powers and duties and fix their compensation.
Establish offices and incur expenses incidental thereto.
Make contracts and other agreements that may be proper to promote the sale of salmon and salmon products on either a local, state, national, or international basis.
Cooperate with any other local, state, or national commission, organization, or agency, whether voluntary or created by state or federal law, including, but not limited to, the Oregon Salmon Commission, and instrumentalities that are engaged in work or activities similar to the work and activities of the council, and to recommend to the secretary the making of contracts and agreements with those organizations or agencies for carrying on joint programs of education, research, publicity, and advertising.
Recommend to the secretary the making of contracts and agreements with other councils, commodity commissions, or producer organizations for joint programs of publicity and advertising where those products are compatible with the promotion of salmon and salmon products.
In matters of research, cooperate with organizations of recognized professional standing that are adequately equipped with facilities for the research that is contemplated.
Recommend to the secretary the institution and promotion of scientific research to develop or discover, or both, the health, food, therapeutic, dietetic, and other uses of salmon.
Receive, invest, and disburse funds pursuant to Article 8 (commencing with Section 76900).
Allocate funds to agencies not specifically or solely engaged in carrying on research or promotion for salmon, if the council and the secretary are satisfied that those allocations will be beneficial to the California salmon fishery and will tend to effectuate the declared purposes of this chapter.
Present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect this chapter.
The council shall keep books, records, and accounts of all its transactions, dealings, contracts, agreements, funds, and expenditures that it deems necessary. The books, records, and accounts shall at all times be open to inspection and audit by the director.
A member, alternate, agent, or employee of the council shall not do any of the following:
Appear before any legislative committee of the state or federal government as a representative of the council unless requested to do so by that committee.
Lobby in any manner as a representative of the council.
Funds which are collected pursuant to this chapter shall not be used for political contributions.
The council shall prepare, annually, summarized statements of the activities in which it has been engaged in the previous annual period, and of the activities in which it proposes to engage in the ensuing annual period. The statements shall be made available to all marketing associations, organizations of fishermen and receivers, processors, wholesalers, and exporters, and individuals that request them in writing.
ARTICLE 6. Education, Research, and Public Information Programs [76800. - 76802.]
The secretary shall conduct, or may cause the council to conduct, programs of education, research, or public information, that are designed to accomplish the following purposes, among others:
Increase the consumption of salmon and salmon products.
Gather, publicize, and diffuse accurate and scientific information that shows the importance of the use and consumption of salmon and salmon products in relation to the public health, economy, and diet, and proper nutrition of children and adults.
Study means and methods that are employed in harvesting, processing, manufacturing, marketing, and distributing salmon and salmon products in order to comply with the sanitary and other regulations that are imposed by municipalities, this state, and the United States.
Gather and disseminate information regarding the high standards that are observed and imposed to ensure pure and wholesome salmon and salmon products.
Gather and disseminate information regarding the harmful effects on the public health resulting from the breakdown or instability of the salmon fishery, the factors and conditions peculiar to the salmon fishery that tend to cause an unbalanced production, and the price of salmon and salmon products in relation to the cost of other items of food in a balanced diet.
Gather and disseminate information regarding the factors that tend to promote increased consumption of salmon and salmon products, stabilize the fishery, and foster a better understanding and more efficient cooperation among fishermen, receivers, processors, and the consuming public.
No program or activity which is conducted or sponsored pursuant to this chapter shall make false or unwarranted claims, or disparage the quality, value, use, or sale of any commodity authorized by law to be marketed in this state, nor shall any program be conducted with reference to a private brand or trade name which refers to salmon or salmon products.
The council shall not expend council funds for the advertising of brand name salmon products. The council may expend council funds to conduct cost-sharing advertising with nonbrand name salmon products.
ARTICLE 7. Purchase of Allocation Shares [76850. - 76852.]
The Attorney General shall annually review all applicable state and federal laws, regulations, and procedures used to set salmon fishing seasons and shall determine whether allocations of rights to harvest salmon held by users, including tribal interests, may lawfully exist for purchase, trade, or exchange or under what conditions that purchase, trade, or exchange may lawfully be made.
If the Attorney General determines under Section 76850 that selling allocation rights to harvest salmon would be binding and consistent with California public policy and if an agreement for purchase of allocation rights of harvest is determined to be lawful and binding, the Director of Fish and Wildlife may, in consultation with the secretary, develop a program to authorize the transfer of the allocation rights consistent with all other state or federal laws and regulations. Upon authorization by the Director of Fish and Wildlife, the secretary may, at a price and quantity agreed to by the council, and with funds available from the council, enter into an agreement for the purchase of the allocation rights to harvest from another user holding bona fide rights to harvest stocks of salmon.
The council, in any negotiations for the purchase of tribal allocations of rights to harvest, if any, however they may exist, may, with the secretary, seek federal or other funds as may be available to match the council funds for the purchase of allocation rights to harvest in recognition of the federal government’s responsibility to the Indian people and their resources.
ARTICLE 8. Financial Provisions [76900. - 76910.]
Programs and administration of the activities that are conducted pursuant to this chapter shall be funded as follows:
Every fisherman who sells salmon to any person who is required to be licensed as a fish receiver pursuant to Section 8033 of the Fish and Game Code shall pay the fee specified in Sections 76902 and 76905 for each pound, or fraction thereof, of salmon taken and sold by the fisherman to the fish receiver. The fee shall be collected from the fisherman and remitted to the secretary by any person licensed to receive fish to whom the salmon are sold.
Every fisherman licensed pursuant to Section 8033.5 of the Fish and Game Code who sells salmon to the ultimate consumer shall pay the fee specified in paragraph (1) and, if handlers have become subject to this chapter pursuant to Article 9.5 (commencing with Section 76961), shall also pay the fee specified in paragraph (1) of subdivision (b) for each pound, or fraction thereof, of salmon taken and sold by the fisherman to the ultimate consumer. The fees shall be remitted to the secretary by the fisherman.
Every handler subject to this chapter pursuant to Article 9.5 (commencing with Section 76961) shall pay the fee specified in paragraph (1) and shall also pay the fee specified in paragraph (1) of subdivision (a) for each pound, or fraction thereof, of salmon that the handler has caught while conducting the activities of a commercial fisherman for his or her own processing or sale. The fees shall be remitted to the secretary by the handler.
Consistent with Section 8041 of the Fish and Game Code, the following persons shall remit the fees required by subdivision (a) of Section 76900 to the secretary:
Any person who is required to be licensed as a fish receiver by Section 8033 of the Fish and Game Code, and receives salmon in this state from persons conducting the activities of a commercial fisherman.
Any commercial fisherman licensed pursuant to Section 8033.5 of the Fish and Game Code who sells salmon to the ultimate consumer.
Each person who is required by this chapter to collect a fee from fishermen or pay a fee as a handler shall maintain a complete and accurate record of all transactions subject to the fee. These records shall contain any information required by the secretary relating to the collection of fees, shall be preserved for a period of three years, and shall be available for review immediately upon demand by the secretary or the secretary’s duly authorized agent.
Any information obtained by the secretary or the secretary’s duly authorized agent from inspection or audit of records shall be confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
Except as specified in Section 76905, the amount of fees due under this article shall be determined by multiplying the weight in the round of salmon by two cents ($0.02). For the purposes of establishing the weight in the round of salmon brought ashore, a conversion factor of 10 percent shall be applied to the weight of salmon brought ashore in a dressed condition.
The fees imposed under this article shall be paid monthly to the secretary within 60 days after the last day of each month. If fees are not paid within 60 days after the month for which they are due, the secretary shall collect amounts owing under the procedures prescribed for sales and use taxes provided in Chapter 5 (commencing with Section 6451) of Part 1 of Division 2 of the Revenue and Taxation Code, insofar as they may be applicable, and for those purposes, “board” means the department and “the date of which the tax became due and payable,” means that date 60 days after the month for which it is due.
Sections 8058 to 8070, inclusive, of the Fish and Game Code apply to claims for overpayment of fees to the secretary. For purposes of this section, “department,” as used in those sections, means the Department of Food and Agriculture, and “landing fee” means the fees imposed pursuant to this article.
The secretary may consult with and enter into agreements with the Director of Fish and Wildlife where necessary and reasonable, to assist in the administration of this chapter and in enforcing compliance with this chapter. If an agreement is established, the secretary shall reimburse the Department of Fish and Wildlife for administrative costs associated with this chapter.
After one year after the establishment of the council, and not before the commercial salmon season of 1990, the council may recommend to the secretary an increase over and above the two cents ($0.02) per pound fee required by Section 76902 for the council to carry out its duties under this chapter. The council shall consider the budget for the council, funding for activities conducted pursuant to Article 6 (commencing with Section 76800) and Article 7 (commencing with Section 76850), as well as the market price of salmon, landing fees imposed by the Department of Fish and Wildlife, assessments charged by marketing associations, and any other relevant factor affecting the economics of the salmon fishery. The council shall, in making any determination to increase fees, consult with marketing associations and, if the recommended increase would exceed seven cents ($0.07) per pound of salmon sold, the council shall conduct a vote of persons on the secretary’s lists established pursuant to Article 9 (commencing with Section 76950) and, if applicable, Article 9.5 (commencing with Section 76961). The secretary may not increase any fee without a majority approval of the voting members of the council.
All money that is collected by the secretary pursuant to this chapter shall be deposited in any bank, or other depository that is approved by the Director of Finance, allocated to the purposes of this chapter only, and disbursed by the secretary or the council only for the necessary expenses that are incurred by the council and the secretary in carrying out this chapter, including expenses generated by the auditing requirement contained in this section. Money that is so collected shall be deposited and disbursed in conformity with appropriate auditing regulations that are prescribed by the secretary. The expenditure of the money is exempt from Sections 925.6 and 16304 of the Government Code.
All expenditures by the council and the secretary shall be audited at least once every two years by one of the following means:
By contract with a certified public accountant.
By contract with a public accountant holding a valid permit issued by the California Board of Accountancy.
By contract with a public accounting firm.
By agreement with the Department of Finance.
Money that is deposited pursuant to Section 76906 may be invested and reinvested by the Treasurer or the council in any of the securities described in Article 1 (commencing with Section 16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code, or placed in a depository as provided in Chapter 4 (commencing with Section 16500) of Part 2 of Division 4 of Title 2 of the Government Code, and handled in the same manner as money in the State Treasury. For these purposes, the money may also be combined with funds that are determined by the secretary to be available for investment pursuant to Section 58939. Any increment that is received from investment, reinvestment, or deposit made by the Treasurer shall be remitted to the council. The Treasurer may deduct from the remittance an amount equal to the reasonable cost incurred in carrying out this section or may bill the council for the costs and the council shall pay the costs from money that is collected for it pursuant to this chapter.
The secretary, after consultation with the council, shall prepare an annual budget that sets forth in reasonable detail the proposed expenditures that the secretary deems necessary for the performance by him or her and by the department of the duties that are imposed upon them by this chapter. The secretary shall also prepare and submit to the council an annual statement, in reasonable detail, of the secretary’s expenditures pursuant to this chapter.
The secretary may receive funds in amounts that may be reasonable and necessary to defray the initial expenses in making effective this chapter. The secretary shall reimburse those persons from whom those funds are received in the amounts received from any funds that are received by the secretary pursuant to this article.
The secretary may accept contributions to advance the purposes of this chapter. If requested by the donor, the contributions shall be segregated and separately maintained for the use of the council.
ARTICLE 9. Implementation and Voting Procedure for Fishermen [76950. - 76955.]
On or before August 15, 1989, the secretary shall establish a list of commercial salmon vessel operators eligible to vote on implementation of this chapter. In establishing the list, the secretary may require that handlers and commercial salmon vessel operators submit the names and mailing addresses of all commercial salmon vessel operators who harvested salmon during the previous season, as evidenced by receipts prepared under Section 8043 of the Fish and Game Code, together with the volume of salmon landed. The secretary may also request the assistance of the Director of Fish and Wildlife for the names of all commercial salmon vessel operators who landed salmon the previous season and the volume of landings for each vessel. The request for the information shall be in writing and shall be subject to the confidentiality provisions of Section 8022 of the Fish and Game Code. The list shall be filed within 30 days following receipt of the written notice.
Any commercial salmon vessel operator whose name does not appear upon the secretary’s list of commercial salmon vessel operators affected may have his or her name established on the list by filing with the secretary a signed statement, identifying himself or herself as a commercial salmon vessel operator and furnishing evidence of having made landings the previous year through the submission of receipts prepared under Section 8043 of the Fish and Game Code. Failure to be on the list does not exempt a commercial salmon vessel operator from paying assessments under this chapter.
This chapter, except as necessary to conduct an implementation referendum vote under this article, shall not become operative until the secretary finds in an implementation referendum conducted by the secretary under this article that at least 40 percent of the total number of commercial salmon vessel operators from the list established by the secretary have participated by voting in the referendum, and the secretary finds either of the following:
Sixty-five percent or more of the commercial salmon vessel operators who voted in the referendum voted in favor of implementing this chapter, and the commercial salmon vessel operators who voted in the referendum marketed 51 percent or more of the total quantity of salmon landed in the preceding fiscal year by all the commercial salmon vessel operators who voted in the referendum.
Fifty-one percent of the commercial salmon vessel operators who voted in the referendum voted in favor of implementing this chapter, and the commercial salmon vessel operators who voted in the referendum marketed 65 percent or more of the total quantity of salmon landed in the preceding fiscal year by all of the commercial salmon vessel operators who voted in the referendum.
The secretary shall establish a period in which to conduct the implementation referendum that shall not be more than 60 days in duration, and may prescribe additional procedures as may be necessary to conduct the referendum. If the initial period established is less than 30 days, the secretary may extend that period. However, the total referendum period may not exceed 60 days.
Before the referendum vote is conducted by the secretary, the proponents of the council shall deposit with the secretary the amount that the secretary determines is necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum vote.
Any funds not used in carrying out this article shall be returned to the proponents of the council who deposited the funds with the secretary.
Upon establishment of the council, the council may reimburse the proponents of the council for any funds deposited with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in establishing the council.
After approval by the Commercial Salmon Trollers Advisory Committee created pursuant to Section 7862 of the Fish and Game Code, the Department of Fish and Wildlife may expend funds collected pursuant to Section 7861 of the Fish and Game Code, for payment to the secretary to pay necessary costs incurred in conducting the implementation referendum vote. If the commercial salmon vessel operators who voted in the implementation referendum voted in favor of implementing this article, as provided in Section 76952, the council shall reimburse the Commercial Salmon Stamp Account in the Fish and Game Preservation Fund all amounts received from that fund.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given, the secretary shall so certify and give notice of the favorable vote to all commercial salmon vessel operators whose names and addresses may be on file with the secretary.
If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare all provisions of this chapter inoperative.
ARTICLE 9.5. Implementation and Voting Procedure for Handlers [76961. - 76967.]
On or before January 31, 2016, the secretary shall establish a list of handlers eligible to vote on whether they shall be subject to this chapter. In establishing the list, the secretary may require that handlers provide receipts of the quantity of salmon received from commercial salmon vessel operators in the previous season. The secretary may also request the assistance of the Director of Fish and Wildlife in compiling the list. The request for the information shall be in writing and shall be subject to the confidentiality provisions of Section 8022 of the Fish and Game Code. The list shall be filed within 30 days following receipt of the written notice.
Any handler whose name does not appear upon the secretary’s list of handlers may have his or her name established on the list by filing with the secretary a signed statement, identifying himself or herself as a handler. Failure to be on the list does not exempt a handler from paying assessments under this chapter.
This chapter shall not apply to handlers until the secretary finds in a referendum conducted by the secretary under this article that at least 40 percent of the total number of handlers from the list established by the secretary have participated by voting in the referendum, and the secretary finds either of the following:
Sixty-five percent or more of the handlers who voted in the referendum voted in favor of being subject to this chapter, and the handlers who voted in the referendum handled 51 percent or more of the total quantity of salmon landed in the preceding fiscal year by all the handlers who voted in the referendum.
Fifty-one percent of the handlers who voted in the referendum voted in favor of being subject to this chapter, and the handlers who voted in the referendum marketed 65 percent or more of the total quantity of salmon landed in the preceding fiscal year by all of the handlers who voted in the referendum.
The secretary shall establish a period in which to conduct the referendum that shall not be more than 60 days in duration, and may prescribe additional procedures as may be necessary to conduct the referendum. If the initial period established is less than 30 days, the secretary may extend that period. However, the total referendum period may not exceed 60 days.
Before the referendum vote is conducted by the secretary, the proponents of this article shall deposit with the secretary the amount that the secretary determines is necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum vote.
Any funds not used in carrying out this article shall be returned to the proponents of this article who deposited the funds with the secretary.
Upon passage of the referendum, the council may reimburse the proponents of this article for any funds deposited with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in approval of this article.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given, the secretary shall so certify and give notice of the favorable vote to all handlers whose names and addresses may be on file with the secretary.
If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare this article inoperative.
ARTICLE 10. Continuation [76971. - 76974.]
Between January 1, 2019, and February 28, 2019, and in the same period each five years thereafter, the secretary shall, by the public hearing procedure, and if appropriate, the procedure specified in this article, determine whether the council program provided for in this chapter shall continue in effect.
If the secretary finds from evidence received at the hearing that a substantial question exists as to whether the council program is contrary to or does not effectuate the declared purposes or provisions of this chapter or receives in writing a referendum petition with the signatures of 25 percent or more of the number of commercial salmon vessel operators who made landings in the previous year, as evidenced by receipts prepared under Section 8043 of the Fish and Game Code, and, if applicable, 25 percent or more of the handlers who are subject to this chapter, the council program shall be submitted to referendum as provided in this article.
If the secretary determines that a referendum procedure is appropriate, the secretary shall establish a referendum period of not to exceed 30 days during which period ballots shall be submitted to every commercial salmon vessel operator and, if applicable, every handler subject to this chapter on a statewide basis. If the secretary determines that the referendum period does not provide sufficient time for the balloting, the secretary may extend the referendum for an additional period not to exceed 30 days. The ballots shall provide a “yes” or “no” voting alternative to the following question: “Shall the California Salmon Council be continued for the next five fiscal years commencing April 1, following this referendum?”
If the council program is submitted to a referendum as provided in this article, the secretary shall find that commercial salmon vessel operators and, if applicable, handlers subject to this chapter statewide have approved the council program if the secretary finds either of the following:
Sixty-five percent or more of the total number of commercial salmon vessel operators and handlers, who voted in the referendum and who harvested 51 percent or more of the total amount of salmon landed during the previous fiscal year by all commercial salmon vessel operators and handlers who voted in the referendum, approve the program.
Fifty-one percent or more of the total number of commercial salmon vessel operators and handlers, who voted in the review referendum and who harvested 65 percent or more of the total amount of salmon landed during the previous fiscal year by all commercial salmon vessel operators and handlers who voted in the review referendum, approve the program.
This chapter shall continue if commercial salmon vessel operators and handlers vote for continuation in accordance with the requirements of this article.
This chapter shall not continue in operation if commercial salmon vessel operators and handlers vote not to continue in accordance with the requirements of this article.
If commercial salmon vessel operators vote for continuation and handlers do not vote for continuation, or if handlers vote for continuation and commercial salmon vessel operators do not vote for continuation, this chapter shall continue to be operative for the group voting for continuation and shall no longer apply to the group voting against continuation.
ARTICLE 11. Termination [76981. - 76981.]
If the commercial salmon vessel operators and the handlers vote to terminate the council pursuant to Article 10 (commencing with Section 76971), the council shall remain in existence for the purpose of furnishing the secretary with a complete record of its outstanding financial obligations, accrued and to accrue. The secretary shall pay from the money deposited and disbursed any outstanding obligations and any obligations incurred by the secretary and the department under the terms and provisions of this section. Any money that remains shall be retained by the secretary to defray the expenses of formulation, issuance, administration, or enforcement of any subsequent program for salmon promotion. If no such program is undertaken within a period of three years from the date of termination of the council, that money shall be withdrawn from the approved depository and paid into the special account for enhancement and restoration programs established pursuant to Section 7861 of the Fish and Game Code.
CHAPTER 16.5. California Walnut Commission [77001. - 77195.]
ARTICLE 1. Declaration and General Provisions [77001. - 77008.]
The production and handling of walnuts constitute an important industry of this state. This industry not only provides substantial and necessary revenues for the state and employment for its citizens, but also furnishes essential food vital to the public health and welfare.
The maintenance and expansion of the walnut industry of California is necessary to ensure the consuming public of a continuous supply of this vital food and the maintenance of needed levels of income for those engaged in the walnut industry of this state.
It is necessary for human nutrition and public benefit that the public be made aware of accurate and scientific information relative to the beneficial qualities of walnuts and of the production and distribution costs necessary to make walnuts available to the consuming public.
The establishment of the commission is necessary for the efficient development and management of a national and international advertising and promotion program that will enhance the reputation of the California walnut industry, create a more receptive environment for the industry and its products, and increase competitiveness of the California walnut industry within the national and international marketplace. The commission is necessary to carry out the California walnut industry’s commitment to responsible stewardship and increasingly efficient cultural practices.
The successes that the walnut industry of California have enjoyed have come about in part through a commitment to industry-funded research that has led to significant improvements in the quality of the walnuts available to consumers and increasingly efficient cultural practices resulting in increased awareness of, and a more receptive environment for, the production and handling of walnuts in domestic and foreign markets. It has also led to walnuts being a better consumer value. The establishment of the commission will maintain and enhance this research effort and make it possible for the walnut industry to realize its potential, resulting in increased consumer value and enhanced producer returns.
The production and handling of walnuts produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, nor by any individual in accordance with this chapter or with the rules and regulations adopted under this chapter, is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Fair Trade Act (Chapter 3 (commencing with Section 16900) of that Part 2), the Unfair Practices Act (Chapter 4 (commencing with Section 1700) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of a particular agricultural industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are elected or appointed to the commission, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
Opportunity exists for continued growth and expansion of the walnut industry by creating new markets. The success of that expansion program is uniquely dependent upon effective advertising, promotion, and research since the creation of new markets is essentially a matter of educating and informing people of the use, nutritional value, and availability of the commodity and enhancing the reputation of the California walnut industry. The expansion of the walnut industry also provides an important source of jobs for many people in this state, a high proportion of whom reside in historically depressed areas of the state, and serves to ensure the preservation of an agrarian society.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of walnuts the opportunity to avail themselves of the benefits of collective action in the broad fields of development, maintenance, and expansion of markets, advertising, promotion, marketing research, public information and education, and production and processing research necessary to achieve the purposes stated in this chapter.
ARTICLE 2. Definitions [77021. - 77034.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Walnuts” means only walnuts of the English (Juglans regia) varieties grown in California.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Walnut Commission.
“Handle” or “handling” means to market, pack, sell, consign, transport, or ship, except as a common or contract carrier of walnuts owned by another person, or in any other way place walnuts, inshell or shelled, into commerce either within the area of production or from the area of production to any other point outside thereof, or for a manufacturer or retailer within the area of production to purchase directly from a producer. “Handle” or “handling” does not include sales and deliveries within the area of production by producers to handlers, or between handlers.
The districts consist of the following:
District 1 consists of the counties in the state that lie north of a line drawn on the south boundaries of the Counties of San Mateo, Alameda, San Joaquin, Calaveras, and Alpine.
District 2 consists of all other walnut producing counties in the state south of the boundary line set forth in paragraph (1).
The boundaries of any district may be changed by a two-thirds vote of the full commission, which is concurred in by the secretary, when necessary to maintain similar total production among the districts and to ensure proper representation by producers. These boundaries need not coincide with county lines.
“Handler” means any person who handles inshell or shelled walnuts.
“Pack” means to bleach, clean, grade, shell, or otherwise prepare walnuts for market as inshell or shelled walnuts.
“Marketing research” means any research relating to the marketing of walnuts in domestic or foreign markets.
“Marketing year” or “fiscal year” means the period from August 1 of any year to July 31, inclusive, of the next year. Beginning September 1, 2008, “marketing year” or “fiscal year” means the period from September 1 of any year to August 31, inclusive, of the next year.
“Person” means any individual, partnership, limited liability partnership, corporation, limited liability company, or other association or entity doing business in California.
“Producer” means any person in this state who grows walnuts for market and who, upon request, provides proof of commodity sale. “Producer” does not include any person who handles 2,000 pounds or less of walnuts during a market year.
“Ex officio member” means a nonvoting member of the commission.
“Advertising and sales promotion” means, in addition to its ordinarily accepted meaning, any plan directed toward increasing the sale of walnuts in domestic or foreign markets. No advertising or sales promotion plan shall make use of false or unwarranted claims on behalf of any product, or disparage the quality, value, sales, or use of any other commodity.
ARTICLE 3. The California Walnut Commission [77051. - 77069.]
There is in state government the California Walnut Commission. The commission shall be composed of eight walnut producers who are not handlers, four walnut handlers, and one public member.
Eight producer members, four from each district, shall be elected by producers. In accordance with procedures adopted by the commission, no more than two producers from each district who ship the largest percentage of their walnuts in the preceding marketing year to the same handler may be elected to the commission as members. Producers who ship to two or more handlers in equal percentages shall declare which handler they are affiliated with, for purposes of this section. No producer member shall be connected in a proprietary capacity with a handler.
In accordance with procedures adopted by the commission, four handler members shall be elected on a weighted basis by all handlers to serve on the commission. No handler member shall be connected in a proprietary capacity or in any other manner with any other handler member serving on the commission.
The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
The secretary and other appropriate individuals as determined by the commission shall be ex officio members of the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make corrections required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter and the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions. The secretary may make recommendations that will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
When the secretary is required to concur in a decision of the commission, the secretary shall concur, refuse to concur, or request additional information from the commission within 15 working days from notification of the decision.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Each member of the commission, except the ex officio members, shall have an alternate member to be elected in the same manner as the member. An alternate member shall, in the absence of the member for whom he or she is an alternate, serve in place of the member on the commission and shall have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of a change in status making him or her ineligible to serve, or due to death, removal, resignation, or disqualification of a member, the alternate member shall act as a member on the commission until a qualified successor is elected or appointed.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a producer member or alternate producer member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled for the unexpired portion of the term by a majority vote of the remaining producer members of the commission. Any person filling a vacant producer member or alternate producer member position shall meet all the qualifications set forth in this article as required for the member whose office he or she is to fill.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a handler member or alternate handler member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled for the unexpired portion of the term by a majority vote of the remaining handler members of the commission. Any person filling a vacant handler member or alternate handler member position shall meet all the qualifications set forth in this article as required for the member whose office he or she is to fill.
Any vacancy on the commission occurring by the failure of the public member or alternate member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled for the unexpired portion of the term by the secretary from nominees recommended by the commission. That person shall meet all the qualifications set forth in this article as required for the member whose office he or she is to fill.
Any producer member and his or her alternate member on the commission shall be an individual or an employee representing a producer who has a financial interest in producing, or causing to be produced, walnuts for market. The qualifications of producer members and their alternate members shall be maintained during the entire term of office.
Any handler member and his or her alternate member on the commission shall have a financial interest in handling walnuts for market.
The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate member, respectively, on the commission. The public member and his or her alternate member shall not have any financial interest in the walnut industry.
For the 2006 marketing year, the term of office of all members of the commission, except ex officio members, shall be from the beginning of the marketing year that commences in the year of their election and until qualified successors are elected for the 2009 marketing year. Thereafter, the term of office of all members of the commission, except ex officio members, shall be two years from the beginning of the marketing year in which they are elected and until qualified successors are elected. The same selection procedure shall apply to handler members. Terms of office of each member and alternate member of the commission shall be limited to four consecutive two-year terms.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements herein.
A quorum of the commission shall be eight voting members of the commission. Except as provided in Section 77027, a vote in favor of a motion by nine members present at a meeting shall constitute the act of the commission.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission.
No member of the commission or of any committee established by the commission that may include nonmembers of the commission shall receive a salary. Except for ex officio government members, the members may receive an amount not to exceed reasonable and necessary traveling expenses and meal allowances, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission.
All funds received by any person from the assessments levied pursuant this chapter or otherwise received by the commission shall be deposited in banks which the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member of the commission, alternate member, or any employee or agent thereof, is personally liable for the contracts of the commission. No member of the commission, alternate member, or any employee or agent thereof, is responsible individually in any way to any producer, processor, handler, or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent or employee, except for his or her own individual acts of dishonesty or crime. No member of the commission, alternate member, or any employee or agent thereof, is responsible individually for any act or omission of any other member of the commission, alternate member, or any employee or agent thereof. Liability is several and not joint, and no member of the commission, alternate member, or any employee or agent thereof, is liable for the default of any other member of the commission, alternate member, or any employee or agent thereof.
ARTICLE 4. Powers and Duties of the Commission [77081. - 77102.]
The powers and duties of the commission shall include, but are not limited to, all of those contained in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, operating procedures, and orders for carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission. The commission is exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code when acting pursuant to this section.
The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, deemed reasonably necessary for the proper or advisable implementation of this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and any other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter. The commission may retain a management firm or the staff from any board, commission, or committee of the state or federal government to perform the functions prescribed by this section under the control of the commission.
If the person engages in any conduct which the secretary determines is not in the public interest or which is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all producers, copies of which shall also be submitted to the department. In addition, the secretary may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may promote the sale of walnuts by brand and generic advertising and other promotional means, including tie-in advertising, for the purpose of creating, maintaining, and expanding domestic and foreign markets.
The commission may educate and instruct the wholesale and retail trade in domestic and foreign markets with respect to proper methods of handling walnuts.
The commission may make market surveys and analyses.
The commission may present facts to, and negotiate with, local, state, federal, and foreign agencies on matters that affect the walnut industry pursuant to this chapter.
The commission may make, in its name, contracts to receive or render services in formulating and conducting plans and programs and any other contracts or agreements that the commission deems necessary for carrying out this chapter.
The commission may conduct, and contract with others to conduct, research, including the study, analysis, accumulation, and dissemination of information obtained from the research or elsewhere, respecting this chapter.
The commission may accept contributions of, or match, private, state, or federal funds and employ or make contributions of funds to other persons or state or federal agencies for purposes of maintaining, promoting, and enhancing the walnut industry pursuant to this chapter.
The commission may collect information, including, but not limited to, industry crop statistics, and may publish and distribute without charge a bulletin or other communication for dissemination of information to persons subject to this chapter.
The commission shall establish an assessment rate to defray operating costs of the commission.
The commission shall establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to Section 77086.
The commission shall submit to the secretary, for his or her concurrence, an annual statement of contemplated activities authorized pursuant to this chapter.
All lists of producers in the possession of the commission or the secretary are confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
ARTICLE 5. Implementation and Voting Procedures [77121. - 77131.]
The secretary shall establish a list of producers eligible to vote on implementation of this chapter. In establishing the list, the secretary shall require that handlers, producers, and others submit the names and mailing addresses of all producers. The secretary also may require that the information provided include the quantity of walnuts produced by each producer or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 77123. The request for the information shall be in writing. The information shall be filed within 30 days following receipt of the written request.
Any producer whose name does not appear on the secretary’s list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a producer. Failure to be on the list does not exempt the producer from paying assessments.
Proponents and opponents of the commission may contact producers on the list in a form and manner prescribed by the secretary so long as all expenses associated with the contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum vote conducted by the secretary that at least 40 percent of the total number of producers from the list established by the secretary pursuant to this article participate, and that a majority of the producers voting in the referendum voted in favor of this chapter, and the producers so voting handled a majority of the total quantity of walnuts handled in the preceding marketing year by all those producers who voted in the referendum.
The secretary shall establish a period in which to conduct the referendum that shall not be less than 10 days or more than 60 days in duration and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period; however, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 77123, the secretary shall so certify and give notice of the favorable vote to all affected producers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in Section 77123, the secretary shall so certify and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one year or more after the previous vote has been taken.
Subsequent to the first election of members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures which shall be established by the commission with the concurrence of the secretary.
Subsequent to the initial implementation referendum vote and the first election of commissioners, the commission shall establish procedures for the purpose of providing persons subject to this chapter with access to producers on the commission’s list of producers for purposes related to an election or referendum or an act or determination of the commission. Access to producers shall not include actual release or disclosure of the commission’s confidential list of producers.
Prior to the referendum vote conducted by the secretary pursuant to Section 77123, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any funds not used in carrying out Section 77123 shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out Section 77123 and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [77151. - 77158.]
The commission shall establish the assessment for the following marketing year not later than the first day of each marketing year or as soon thereafter as is possible.
The assessment shall not exceed one cent ($0.01) per inshell pound on all walnuts shipped by producers to handlers or handled by producers.
Assessments provided for in this section shall be levied on the producer. The handler shall deduct the assessment from amounts paid by him or her to the producer and shall be a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission.
A fee greater than the amount provided for in subdivision (b) may not be charged unless and until a greater fee is approved by producers pursuant to the procedures specified in Section 77123.
This chapter does not apply to the walnuts produced only for the producer’s home use and to producers who handle 2,000 pounds or less of walnuts in the preceding marketing year. However, the producer shall file an affidavit with the commission establishing that he or she has not handled walnuts. The commission shall then determine whether the affidavit should be approved.
Every handler shall keep a complete and accurate record of all walnuts handled with the name of the producer whose walnuts were handled. The records shall be in simple form and contain information prescribed by the commission. The records shall be preserved by the handler for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from producers or handlers is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter.
Every handler shall be personally liable for the payment of collected assessments to the commission, and the failure of a handler to collect the assessment from any producer does not exempt any handler from liability.
Any assessment which is levied as provided for in this chapter is a personal debt of every producer so assessed. Failure of a handler to collect the assessment does not relieve the producer of the obligation to pay the assessment.
Any producer or handler who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, pay 112 percent interest per month on the unpaid balance.
When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failing to collect or make payment of assessments, of which a corporate handler may be subject to under this chapter, shall also include identical liability upon each director and each officer of the corporation.
ARTICLE 7. Actions and Penalties [77171. - 77174.]
It is unlawful for any person to do any of the following:
Refuse to render a report, statement, or record required by the commission.
Furnish a false report, statement, or record required by the commission.
When engaged in the handling of walnuts, fail or refuse to furnish the commission, or its duly authorized agents, information concerning the names and addresses of persons from whom walnuts have been received and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the rules and regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunction relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding walnuts until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Termination of this chapter shall not affect or waive any right, duty, obligation, or liability which shall have arisen or which may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [77191. - 77195.]
This chapter shall become inoperative at the end of any marketing year in which targeted export assistance funds provided by the federal government have been permanently terminated, unless, pursuant to the procedures described in Section 77193, the producers approve the continuation of the commission. Funds are permanently terminated within the meaning of the previous sentence when the federal government does not provide targeted export assistance funds in three consecutive budget years.
Notwithstanding Section 77191, the secretary shall terminate the commission at the end of the then current marketing year in accordance with Sections 77194 and 77195 if the secretary finds that the termination of the commission is requested in writing, within a 90-day period, by at least 51 percent of the eligible producers that produce at least 51 percent of the total volume of walnuts.
The person or persons originating the request shall file a written notice with the secretary in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the secretary.
The signatures on the petition requesting the termination need not all be appended to one sheet of paper. Each person signing the petition shall specify his or her place of business in a manner that will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention to terminate. Signatures shall be secured within the time limit specified in this section.
Every six years, beginning in the 1992–93 marketing year, the secretary shall hold a hearing to determine whether operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among the producers assessed under this chapter regarding whether operation of this chapter should be continued, the secretary shall cause a referendum vote to be conducted among producers. If a referendum is required, the operation of this chapter shall continue if the secretary finds that a majority of producers voting in the referendum voted in favor of the continuation of this chapter, and those so voting handled a majority of the total quantity of walnuts handled in the preceding marketing years by all such producers voting in the referendum.
If the secretary finds that a favorable vote has been given, the secretary shall so certify and this chapter shall remain in operation. If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare the operation of this chapter suspended upon expiration of the then current marketing year.
After the effective date of suspension of the operation of this chapter, the operation of the commission shall be concluded and any and all funds remaining held by the commission and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing year. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the prorate refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate program conducted by the University of California or the California State University, another state agency, or a federal agency which deals with the purposes of this chapter. If no program exists, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all producers affected by the suspension whose names and addresses are on file.
CHAPTER 17. California Pepper Commission [77201. - 77376.]
ARTICLE 1. Declaration and General Provisions [77201. - 77207.]
The production and marketing of peppers constitute an important industry of this state which not only provides substantial and necessary revenues for the state and employment for its citizens, but also furnishes essential food vital to the public health and welfare.
The maintenance of the pepper industry of California is necessary to assure the consuming public of a continuous supply of this vital food and the maintenance of needed levels of income for those engaged in the industry.
The production and marketing of peppers produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, nor by any individual in accordance with this chapter or with the rules and regulations adopted under this chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Fair Trade Act (Chapter 3 (commencing with Section 16900) of that Part 2), the Unfair Practices Act (Chapter 4 (commencing with Section 1700) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of a particular agricultural industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the legislature finds that, with respect to persons who are elected or appointed to the commission, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
A commission form of administration created by this chapter is designed to deal with the broad field of production research.
ARTICLE 2. Definitions [77221. - 77231.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Pepper” means all types of fruit grown in California from the plant family Solanaceae, Genus Capsicum, including seed.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Pepper Commission.
The commission shall be composed of five districts. The boundaries of each district shall be established by a two-thirds vote of the full commission, that is concurred in by the secretary. District boundaries shall be established to reflect similar total production among the districts in order to ensure proper representation by producers. These boundaries need not coincide with county lines.
The boundaries of any district may be changed by a two-thirds vote of the full commission, that is concurred in by the secretary, when necessary to maintain similar total production among the districts and to ensure proper representation by producers.
“Handler” means any person engaged in marketing of peppers which the person has produced, purchased, or acquired from a producer, or is marketing on behalf of a producer whether as owner, agent, employee, broker, or otherwise. “Handler” does not include any person who handles less than 100 tons of fresh peppers, or the equivalent in dehydrated peppers or pepper seed, in a marketing year.
“Handle” means to engage in the business of a handler.
The tonnage threshold specified in subdivision (a) may be increased by a two-thirds vote of the commission.
The tonnage threshold specified in subdivision (a) may be decreased only if approved by referendum pursuant to Sections 77311 to 77316, inclusive. For purposes of a referendum conducted pursuant to this subdivision, the terms “producer” and “handler” in Section 77311 to 77316, inclusive, includes persons who would become subject to this chapter if the referendum is approved.
“Market” or “marketing” means to sell peppers.
“Production research” means any cultural and biological research relating to field production of peppers.
“Marketing year” or “fiscal year” means the period beginning March 1 of any year and extending through the last day of February of the next year.
“Producer” means any person in this state who grows peppers for market and who, upon request, provides proof of commodity sale. “Producer” does not include any person who grows less than 10 acres of peppers, or produces less than 100 tons of fresh peppers, or the equivalent in dry peppers or pepper seed, in the current marketing year.
The acreage and tonnage thresholds specified in subdivision (a) may be decreased only if approved by referendum pursuant to Section 77311 to 77316, inclusive. For purposes of a referendum conducted pursuant to this subdivision, the terms “producer” and “handler” in Sections 77311 to 77316, inclusive, include persons who would become subject to this chapter if the referendum is approved.
“Ex officio member” means a nonvoting member of the commission.
ARTICLE 3. The California Pepper Commission [77251. - 77268.]
There is in the state government the California Pepper Commission. The commission shall be composed of five pepper producers, five pepper handlers, one public member, and may include two at-large members at the discretion of the commission.
Five producers, one from each district, shall be elected by and from producers within the respective districts. Five handlers, representing the major categories of pepper handling as determined by the commission, shall be elected by and from other qualified handlers engaged in the same activity. The determination of what the major categories of pepper handling activities are, and any subsequent change to the categories shall be made by a two-thirds vote of the full commission that is concurred in by the secretary.
The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
Two at-large members may be elected by the producers and handlers on the commission from among individuals who have a financial interest in the California pepper industry but who are not necessarily producers or handlers as defined in this article.
The secretary and other appropriate individuals as determined by the commission shall be ex officio members of the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make corrections required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and the secretary’s recommendations as to what will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from notification of the decision. The response may be a request that additional information be provided.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Each member of the commission, except ex officio members, shall have an alternate member to be elected in the same manner as the member. Except as provided in Section 77264, an alternate member shall, in the absence of the member for whom he or she is an alternate, serve in place of the member and shall have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of a change in status making a member ineligible to serve, or due to death, removal, resignation, or disqualification of a member, the alternate member shall act as a member on the commission until a qualified successor is elected or appointed.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status making the person ineligible to serve, or due to death, removal, or resignation, shall be filled for the unexpired portion of the term by a majority vote of the remaining members of the commission. That person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to fill.
Any vacancy on the commission occurring by the failure of the public member or alternate member to continue in his or her position due to a change in status making the member ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled for the unexpired portion of the term by the secretary from nominees recommended by the commission. That person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to fill.
Any producer member and his or her alternate member on the commission shall be an individual producer or an employee representing a producer who has a financial interest in producing, or causing to be produced, peppers for market. Qualifications of producer members and their alternate members shall be maintained during their entire term of office.
Any handler member and his or her alternate member on the commission shall have a financial interest in handling peppers for market, or be an employee of a firm which handles peppers.
Any at-large member elected to the commission, and his or her alternate shall have a financial interest in the California pepper industry and shall have all the rights and privileges of any other member or alternate member, respectively, of the commission.
The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate member, respectively, on the commission. The public member and his or her alternate member shall not have any financial interest in the pepper industry.
The term of office of all members and alternate members of the commission, except ex officio members, shall be three years, beginning on the first day of February following his or her election and until qualified successors are elected.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts when authenticated, shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission shall be seven voting members of the commission. An alternate producer or handler member, respectively, may serve in the absence of a member if the member’s alternate is absent and the action is necessary to establish a quorum. Unless specified otherwise in this chapter, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meeting of the commission.
No member of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission or each alternate member serving in place of a member, except ex officio government members, and each member of a committee established by the commission who is a nonmember of the commission, may receive a sum not to exceed one hundred dollars ($100) per day, as established by the commission. This per diem shall be paid to members for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission. Members shall also receive the necessary traveling expenses and meal allowances, as approved by the commission.
All funds received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks which the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member of the commission, alternate member, or any employee or agent thereof, is personally liable for the contracts of the commission. No member of the commission, alternate member, or any employee or agent thereof, is responsible individually in any way to any producer, handler, or any other person for errors in judgment, mistakes, or other acts, either of the commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member of the commission, alternate member, or any employee or agent thereof, is responsible individually for any act or omission of any other member of the commission, alternate member, or any employee or agent thereof. Liability is several and not joint, and no member of the commission, alternate member, or any employee or agent thereof, is liable for the default of any other member of the commission, alternate member, or any employee or agent thereof.
ARTICLE 4. Powers and Duties of the Commission [77281. - 77299.]
The powers and duties of the commission include, but are not limited to, all of those contained in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, operating procedures, and orders for carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, proper or advisable effectuation of this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter. The commission may retain a management firm or the staff from any board, commission, or committee of the state or federal government to perform the functions prescribed by this section under the control of the commission. If the person engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. In the event that the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all producers and handlers, a copy of which shall also be submitted to the department. In addition, the secretary may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may present facts to, and negotiate with state, federal, and foreign agencies on matters which affect this chapter.
The commission may make, in its name, contracts to receive or render services in formulating and conducting plans and programs and any other contracts or agreements that the commission may deem necessary for carrying out this chapter.
The commission may conduct, and contract with others to conduct, production research, including the study, analysis, accumulation, and dissemination of information obtained from the research or elsewhere, regarding this chapter.
The commission may accept contributions or match private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies, for purposes of carrying out this chapter.
The commission may publish and distribute, without charge, a bulletin or other communication for dissemination of information to producers and handlers.
The commission shall establish an assessment rate to defray operating costs of the commission.
The commission shall establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to Section 77286.
The commission shall submit to the secretary for his or her concurrence, an annual statement of contemplated activities authorized pursuant to this chapter.
The commission and the secretary shall keep confidential and shall not disclose, except when required in a judicial proceeding, all lists of producers and handlers in their possession.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
ARTICLE 5. Implementation and Voting Procedures [77311. - 77320.]
Within 30 days of the effective date of this chapter, the secretary shall have established a list of producers and handlers eligible to vote on implementation of this chapter. In establishing the list, the secretary may require that producers, handlers, and others submit the names and mailing addresses of all producers and handlers. The secretary also may require that the information provided include the quantity of peppers produced by each producer and the quantity of peppers handled by each handler, or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 77312. The request for the information shall be in writing and shall be filed within 10 days following receipt of the request.
Any producer or handler whose name does not appear upon the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a producer or handler. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
Proponents and opponents of the commission may contact producers and handlers on the lists in a form and manner prescribed by the secretary so long as all expenses associated with the contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds as follows in a referendum vote conducted by the secretary:
At least 40 percent of the total number of producers from the list established by the secretary pursuant to this article have participated and that either of the following has occurred:
Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed a majority of the total quantity of peppers in the preceding marketing year by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the total quantity of peppers in the preceding marketing year by all of the producers who voted in the referendum.
At least 40 percent of the total number of handlers from the list established by the secretary pursuant to this article, have participated, and that either of the following has occurred:
Sixty-five percent of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled a majority of the total quantity of peppers in the preceding marketing year by all of the handlers who voted in the referendum.
A majority of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled 65 percent or more of the total quantity of peppers in the preceding marketing year by all of the handlers who voted in the referendum.
The secretary shall use fresh weight in calculating the volume voted pursuant to Section 77312. For converting dry weight and seed weight to fresh equivalent weight the secretary shall use the following ratios: 5.3 to 1 for dry weight and 220 to 1 for seed weight.
The secretary shall establish a period in that to conduct the referendum which shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures that may be necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period, however, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 77312, the secretary shall certify and give notice of the favorable vote to all affected producers and handlers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in Section 77312, the secretary shall certify and declare this chapter inoperative. The director may conduct another implementation referendum vote one year or more after the previous vote has been taken.
Upon certification of the commission, the secretary shall do the following:
Contact all producers in each district by mail or call meetings of producers in each district for the purpose of nominating and electing persons to the commission. All producers on the secretary’s list shall be given written notice of any election meetings at least 10 days prior to the meeting date. To be eligible for election to the commission, producer nominees must present to the secretary a nomination petition with the signatures of at least three eligible producers from the district from which the nominee is seeking election.
Contact all handlers by mail or by calling a meeting for the purpose of nominating and electing persons to the commission. All handlers on the secretary’s list shall be given written notice of any election meetings at least 10 days prior to the meeting date. To be eligible for election to the commission, handler nominees must present to the secretary a nomination petition with the signatures of at least two eligible handlers who are engaged in the same type of handler activity as the handler seeking nomination.
Subsequent to the first election of members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures that are established by the commission with the concurrence of the secretary.
Prior to the referendum vote conducted by the secretary pursuant to Section 77312, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any funds not used in carrying out Section 77312 shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon establishment of the commission, the commission is authorized to reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out Section 77312 and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [77331. - 77338.]
The commission shall establish the assessment for the following marketing year not later than March 1 of each year, or as soon thereafter as is possible.
The assessment for the 1989–90 marketing year shall not exceed twenty-five cents ($0.25) per ton for producers and twenty-five cents ($0.25) per ton for handlers on all peppers grown and shipped on a wet pound or ton basis by producers and handled by handlers. Thereafter, the assessment shall not exceed one dollar ($1) per ton for producers and one dollar ($1) per ton for handlers.
The assessment for the 1989–90 marketing year shall not exceed $0.00065 per pound for producers and $0.00065 per pound for handlers on all peppers grown and shipped on a dry pound basis by producers and handled by handlers. Thereafter, the assessment shall not exceed a maximum of $0.0026 per pound for producers and $0.0026 per pound for handlers.
The assessment for the 1989–90 marketing year shall not exceed two cents ($0.02) per pound for producers and two cents ($0.02) per pound for handlers on all planting seed grown by producers and handled by handlers. Thereafter, the assessment shall not exceed a maximum of eight cents ($0.08) per pound for producers and eight cents ($0.08) per pound for handlers.
The handler shall deduct the producer assessment from amounts paid by him or her to the producer and shall be a trustee of these funds and the assessment owed by the handler until they are paid to the commission at the time and in the manner prescribed by the commission.
A fee greater than the amount provided in this section may not be charged unless and until a greater fee is approved pursuant to the procedures specified in Section 77312.
Unless specified otherwise, this chapter does not apply to persons who grow peppers only for the producer’s home use or who grow or produce less than the number of acres or tons established pursuant to Section 77230 of fresh peppers, or the equivalent in dry peppers or pepper seed, in the current marketing year. However, any such person who markets peppers shall file an affidavit with the commission establishing that the person grows less than 10 acres of peppers or produces less than 100 tons of fresh peppers, or the equivalent in dry peppers or pepper seed. The commission shall then determine whether the affidavit should be approved.
Unless specified otherwise, this chapter does not apply to any person who handles less than the number of tons of fresh peppers established pursuant to Section 77226, or the equivalent in dehydrated peppers or pepper seed, in the current marketing year. However, any person who is handling peppers shall file an affidavit with the commission specifying that the person handles less than the number of tons of peppers established pursuant to Section 77226. The commission shall, upon receipt of the affidavit, determine whether this chapter applies to that person.
Every person who handles peppers in California, including persons who handle less than the tonnage threshold established pursuant to Section 77226, shall keep a complete and accurate record of all peppers handled with the name of the producer whose peppers were handled. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be preserved by the handler for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the director from producers or handlers is confidential and shall not be disclosed except when required in a judicial proceeding.
Information on volume shipments, product value, and any other related information which is required for reports to governmental agencies; financial reports to the commission or aggregate sales and inventory information; and any other information which the commission requires that gives only totals, but excludes individual producer and handler information, may be disclosed by the commission.
Any assessment which is levied as provided for in this chapter is a personal debt of every producer and handler so assessed.
Every handler shall be personally liable for the payment of collected assessments to the commission. Failure of a handler to collect the assessment shall not exempt the handler from liability and shall not relieve any person subject to this chapter from the obligation to pay the assessment.
Any producer or handler who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, pay 112 percent interest per month on the unpaid balance.
When the producer or handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
ARTICLE 7. Actions and Penalties [77351. - 77354.]
It is unlawful for any person to do any of the following:
Refuse to render a report, statement, or record required by the commission.
Furnish a false report, statement, or record required by the commission.
When engaged in the handling of peppers, to fail or refuse to furnish the commission or its duly authorized agents, information concerning the names and addresses of persons from whom peppers have been received and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the director shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining for injunctive relief or specific performance regarding this chapter and the rules and regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of that part, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding peppers until there is full compliance and satisfaction of the judgment. Upon a favorable verdict for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Termination of this chapter shall not affect or waive any right, duty, obligation, or liability which has arisen or which may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [77371. - 77376.]
Between May 1, 1993, and April 30, 1994, the commission shall cause a referendum to be conducted among producers and handlers to determine whether the operations of this chapter shall be approved and continued in effect. A favorable vote under this chapter shall be found if the secretary determines from the referendum that a majority of the eligible producers and handlers voting in the referendum voted in favor of continuing the operations of this chapter. If the secretary finds that a favorable vote has been given, the secretary shall so certify and this chapter shall remain effective. If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare the operations of this chapter suspended upon expiration of the marketing season ending April 30, 1994. Thereupon, the operation of the commission shall be concluded and funds distributed in the manner provided in Section 77375. No bond or security shall be required for any such referendum.
Following a favorable referendum conducted prior to April 30, 1994, a referendum shall be conducted by the commission every fifth year thereafter unless a referendum is conducted as the result of a petition pursuant to this article. In that case, the referendum shall be every fifth year following the industry petitioned referendum following the procedures provided in Section 77371.
Upon a finding by a two-thirds vote of the full commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing year.
The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with the director requesting a suspension signed by 20 percent of the producers by number who produced not less than 20 percent of the volume of peppers in the immediately preceding marketing year, and 20 percent of the handlers by number who handled not less than 20 percent of the volume of peppers in the immediately preceding marketing year, hold a referendum among the producers and handlers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows, by the weight of evidence, that the operation of this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period, that shall not be less than 10 days nor more than 60 days in duration. The director may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend operation of this chapter if the director finds either one of the following has occurred:
At least 40 percent of the total number of producers from the list established by the director have participated in the referendum:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed a majority of the total quantity of peppers in the preceding marketing year by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed 65 percent or more of the total quantity of peppers in the preceding marketing year by all of the producers who voted in the referendum.
At least 40 percent of the total number of handlers from the list established by the director have participated in the referendum:
Sixty-five percent or more of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled a majority of the total quantity of peppers in the preceding marketing year by all of the handlers who voted in the referendum.
A majority of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled 65 percent or more of the total quantity of peppers in the preceding marketing year by all of the handlers who voted in the referendum.
The secretary shall terminate the commission at the end of the then current marketing year if the director finds that the termination of the commission is requested in writing, within a 90-day period, by at least 51 percent of the eligible producers that produce at least 51 percent of the total volume of peppers and at least 51 percent of the eligible handlers that handle at least 51 percent of the total volume of peppers.
The person or persons originating the request shall file a written notice with the secretary in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the secretary.
The signatures to the petition requesting the termination need not all be appended to one sheet of paper. Each person signing the petition shall specify his or her place of business in a manner that will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention to terminate. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension, the operation of the commission shall be concluded and any and all funds remaining held by the commission and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing year. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the prorated refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate program conducted by the University of California or the California State University system, another state agency, or a federal agency that deals with the purposes of this chapter. If an appropriate program does not exist, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all persons affected by the suspension whose names and addresses are on file.
CHAPTER 17.5. California Strawberry Commission [77401. - 77500.]
ARTICLE 1. Declaration and General Provisions [77401. - 77407.]
The production and marketing of strawberries constitutes an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
The establishment of the commission is necessary for the efficient creation and management of a research program to develop improved varieties of strawberries, an integrated approach to control pests and diseases common to strawberries, and more efficient cultural practices. The commission is also necessary for the efficient development and management of a national and international advertising and promotion program which, combined with the research program, will enhance the competitiveness of the California strawberry industry within the national and international marketplace.
The maintenance of the strawberry industry of California is necessary to assure the public of a continuous supply of this vital product and the maintenance of needed levels of income for those engaged in the strawberry industry of this state.
The production and marketing of strawberries produced in this state is hereby declared to be affected with the public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
A commission form of administration created by this chapter is designed to deal with the broad fields of advertising, promotion, marketing research, and production research.
No action taken by the commission, or by any individual in accordance with this chapter or with rules and regulations adopted under the chapter, shall be deemed a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any rule of statutory or common law against monopolies or combinations in restraint of trade.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of the particular industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to, and constitutes the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 2. Definitions [77410. - 77425.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Strawberries” mean all strawberries produced in California for commercial purposes.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Strawberry Commission.
“Crate” means a shipping container holding more than six pint baskets, or the equivalent volume thereof, and no more than 12 pint baskets, or the equivalent volume thereof, used in preparing for market or marketing strawberries for fresh consumption. A shipping container holding six pint baskets, or the equivalent volume thereof, shall be considered to be a half-crate. Assessments on a half-crate shall be one-half of the rate for a crate of strawberries. A shipping container holding more than 12 pint baskets, or the equivalent volume thereof, shall be assessed at a rate determined by the commission.
“Director” means the Director of Food and Agriculture.
“Districts” consist of the following:
District 1 consists of San Diego, Imperial, and Riverside Counties.
District 2 consists of Los Angeles, Orange, and San Bernardino Counties.
District 3 consists of Santa Barbara and San Luis Obispo Counties.
District 4 consists of Ventura County.
District 5 consists of Madera, Fresno, Kings, Tulare, Kern, Inyo, Merced, Stanislaus, San Joaquin, and Sacramento Counties and all other counties within the State of California not included in Districts 1 to 4, inclusive, and District 6.
District 6 consists of Alameda, Monterey, San Benito, San Mateo, Santa Clara, and Santa Cruz Counties, and the City and County of San Francisco.
The boundaries of any district may be changed by a two-thirds vote of the commission, which is concurred in by the secretary, to ensure proper representation. The boundaries need not coincide with county lines.
“Ex officio members” are nonvoting members of the commission.
“Market” or “marketing” means to sell or otherwise distribute strawberries into commercial channels or trade resulting in the sale of strawberries.
“Marketing research” means any research relating to the sale of strawberries.
“Marketing season” or “fiscal year” are synonymous terms and mean the period beginning February 1 of any year and extending through the last day of January of the following year.
“Process” and “processing” are synonymous terms and mean the operations of receiving, cleaning, grading, capping, slicing, canning, freezing, preserving, or otherwise changing the form of the strawberries in preparing them for market.
“Processor” means any person who performs any of the functions of processing strawberries within California. When a processor is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments for which a corporate processor may be subject pursuant to this chapter shall include identical liability upon each individual director or officer of the corporation. It does not, however, include a retailer, except a retailer who purchases or acquires from, or processes on behalf of, any producer, strawberries that were not previously subject to assessment by the commission.
“Producer” and “grower” are synonymous terms and mean any person who produces or causes to be produced strawberries for market and who shall, upon request of the commission, provide proof of commodity sale.
“Production research” means any research relating to the production, harvest, and post harvest handling of strawberries.
“Ship” and “shipping” are synonymous terms and mean the operations of receiving, grading, cleaning, transporting, distributing, or otherwise preparing for market or marketing strawberries in other than processed form.
“Shipper” means any person who performs any of the functions of shipping strawberries within California. When the shipper is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments for which a corporate shipper may be subject pursuant to this chapter shall include identical liability upon each individual director or officer of the corporation. It does not, however, include a retailer, except a retailer who purchases or acquires from, or ships on behalf of, any producer, strawberries that were not previously subject to assessment by the commission.
ARTICLE 3. The California Strawberry Commission [77430. - 77447.]
There is in the state government the California Strawberry Commission. Except as provided in subdivision (d), the commission shall be composed of 13 producers, five shippers, five processors, and one public member.
Except as provided in subdivision (d), producers within the respective districts shall elect one member from District 1, two members from District 2, two members from District 3, two members from District 4, one member from District 5, and five members from District 6. Shippers and processors shall be elected by and from shippers and processors, respectively, on a statewide basis without reference to districts. The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
The secretary and other appropriate persons as determined by the commission shall be ex officio members of the commission.
The commission may modify the number of producers in each district, and shippers and processors who serve on the commission, and may elect producers, shippers, and processors to serve as members at large of the commission. The total number of producer, shipper, and processor members shall not exceed 32.
The director may require the commission to correct or cease any existing activity or function that is determined by the director not to be in the public interest or in violation of this chapter. If the commission refuses or fails to cease those activities or functions or to make corrections as required by the director, the director may, upon written notice, suspend all or a portion of the activities or functions of the commission until such time as the cessation or correction of activities or functions as required by the director has been accomplished by the commission.
Actions of the commission in violation of the written notice shall be without legal force or effect. The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice. Upon service of the written notice, the director shall notify the commission in writing of the specific acts that he or she determines are not in the public interest or are in violation of this chapter, and his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and may make recommendations that will make those activities or functions acceptable to the director.
The commission or the director may bring an action for judicial relief from the director’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his or her duties and responsibilities under this chapter. However, a court may, if it finds that the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to that action.
Except for the ex officio members of the commission, an alternate member for each member shall be elected in the same manner as the member. An alternate member, in the absence of the member for whom he or she is an alternate, shall serve in place of the member on the commission. An alternate member may also serve in place of any other absent member of the same classification (producer, shipper, or processor) from the same district if that member’s alternate is also absent. However, an alternate may not serve in place of more than one absent member at a meeting. An alternate member serving in place of a member shall have and be able to exercise all rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or the disqualification of a member, the alternate for that member, or another alternate of the same classification from the same district if the alternate for that member is absent, shall act as a member on the commission until a qualified successor is elected.
Any vacancy on the commission including, but not limited to, the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled by the appointment of another person, for the unexpired portion of the term, by a majority vote of the commission. However, the appointee shall fulfill all the qualifications set forth in this article as required for the office he or she is to occupy. The qualifications of any person to fill a vacancy on the commission shall be certified in writing to the director. The director shall notify the commission if he or she determines that the person is not qualified.
A producer member or his or her alternate on the commission shall be an individual, partner, or employee of a producer who has a financial interest in producing, or causing to be produced, strawberries for market. The producer member or his or her alternate shall be so qualified during the entire term of office.
A shipper member or his or her alternate on the commission shall be an individual, partner, or employee of a shipper who has a financial interest in shipping, or causing to be shipped, strawberries for market. The shipper member or his or her alternate shall be so qualified during the entire term of office.
A processor member or his or her alternate on the commission shall be an individual, partner, or employee of a processor who has a financial interest in processing, or causing to be processed, strawberries for market. The processor member or his or her alternate shall be so qualified during the entire term of office.
The public member or his or her alternate on the commission shall have all the powers, rights, and privileges of any other member on the commission. The public member and his or her alternate shall not have any financial interest in the strawberry industry.
The term of office of all members of the commission and alternates, except any ex officio member, shall be two years from the date of their election and until their successors are elected.
The commission shall be and is hereby declared and created a corporate body. It may sue and be sued, enter into contracts, adopt a corporate seal, and has all of the powers of a corporation. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission is a majority of the voting producer members, a majority of the voting shipper members, and a majority of the voting processor members on the commission. Except as provided in Sections 77481.5 and 77499, the vote of a majority of members present at a meeting at which there is a quorum shall constitute an act of the commission.
The director or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission. However, the director is not entitled to attend an executive session of the commission called for the purpose of discussing potential or actual litigation against the department.
No member of the commission or of any committee established by the commission, which may include nonmembers of the commission, shall receive a salary. Except ex officio government members, the members may receive an amount not to exceed one hundred dollars ($100) per day, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission, together with the necessary traveling expenses and meal allowances, as approved by the commission.
If the director is required to concur in a decision of the commission, he or she shall indicate his or her response to the commission within 15 working days from notification of the decision. The response may be a request that additional information be provided.
All moneys received by any person from assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks designated by the commission and shall be disbursed by order of the commission through an agent or agents designated for that purpose. Any authorized agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in the state, in favor of the commission, in the amount of not less that twenty-five thousand dollars ($25,000).
The state shall not be liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. No member of the commission, alternate member, or any employee or agent thereof, shall be personally liable on the contracts of the commission and no member, alternate member, or employee of the commission shall be responsible individually in any way to any producer, processor, shipper or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or alternate member shall be held responsible individually for any act or omission of any member or alternate member of the commission. The liability of the members and alternate members shall be several and not joint, and no member or alternate member shall be liable for the default of any other member or alternate member.
ARTICLE 4. Powers and Duties of the Commission [77451. - 77451.]
The powers and duties of the commission shall include, but are not limited to, all of the following:
Adopt and from time to time alter, rescind, modify, and amend bylaws, rules, regulations, and orders for carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, or order of the commission. These actions shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
Administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or determined reasonably necessary for, proper or advisable effectuation of the purposes of this chapter.
Appoint its own officers, including a chairperson, one or more vice chairpersons, and any other officers as it determines necessary. The officers shall have the powers and duties delegated to them by the commission.
Employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter. The commission may retain a management firm or the staff from any board, commission, or committee of the state to perform the functions prescribed by this subdivision under control of the commission. If the person engages in any conduct that the director determines is not in the public interest or in violation of this chapter, the director shall notify the commission of the conduct and request that corrective, and if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the person.
Fix the compensation for all employees of the commission.
Appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
Establish offices and incur expenses, invest funds, enter into contracts and agreements, and create liabilities and borrow funds in advance of receipt of assessments as determined necessary by the commission for the proper administration and enforcement of this chapter and the performance of its duties.
Keep accurate books, records, and accounts of all of its dealings, which books, records, and accounts shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the director. The audit shall be made a part of an annual report to all producers, processors, and shippers of strawberries, and copies of the audit shall be submitted to the Legislature and the department. In addition, the director may, as he or she determines necessary, conduct or cause to be conducted, a fiscal and compliance audit of the commission.
Promote the sale of strawberries by advertising and any other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for strawberries, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of strawberries.
Educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling strawberries, make market surveys and analyses, and present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the marketing of strawberries.
Make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements the commission determines necessary for the promotion of the sale of strawberries.
Conduct, and contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, respecting cultural and production practices, and marketing and distribution of strawberries. In connection with the research, the commission shall have the power to accept contributions of, or to match, private, state, or federal funds that may be available for these purposes, and to employ or make contributions of funds to other persons or state or federal agencies conducting the research.
Collect information and publish and distribute, without charge, to producers, processors, and shippers a bulletin or other communication for dissemination of information, including, but not limited to, crop statistics relating to the strawberry industry.
Establish an assessment rate to defray operating costs of the commission.
Establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the director prior to disbursement of funds, except for disbursements made pursuant to subdivision (e).
Submit to the director for his or her concurrence, an annual statement of contemplated activities authorized under this chapter, including advertising, promotion, marketing research, and production research.
Investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
ARTICLE 5. Implementation and Voting Procedures [77461. - 77468.]
Within 90 days after the effective date of this chapter, the director shall establish a list of producers, processors, and shippers eligible to vote on the implementation of this chapter. In establishing the list, the director shall require that processors and shippers of strawberries in California submit the names, mailing addresses, and the volume of strawberries received during the preceding marketing season from each producer of strawberries in California. The request for the information shall be in writing. The information shall be filed within 30 days following receipt of the written request for information.
Any producer, processor, or shipper of strawberries, whose name does not appear upon the director’s list may have his or her name placed on the list by filing with the director a signed statement, identifying himself or herself as a producer, processor, or shipper. Failure to be on the list does not exempt the producer, processor, or shipper from paying assessments under this chapter.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the director finds in a referendum conducted by the director that at least 40 percent of the total number of producers, processors, and shippers from the list established by the director pursuant to this article participate, and that either of the following occurs:
Sixty-five percent or more of the producers, processors, and shippers who voted in the referendum voted in favor of this chapter, and the producers, processors, and shippers so voting each marketed a majority of the total quantity of strawberries in the preceding season by all producers, processors, and shippers who voted in the referendum.
A majority of each of the producers, processors, and shippers who voted in the referendum voted in favor of this chapter, and the producers, processors, and shippers so voting marketed 65 percent or more of the total quantity of strawberries in the preceding season by all producers, processors, or shippers who voted in the referendum.
The director shall establish a period in which to conduct the referendum which shall not be less than 10 days or more than 60 days in duration and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the director may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
In finding whether the commission is approved pursuant to this article, the vote of any nonprofit agricultural cooperative marketing association that is authorized by its members to so vote, shall be considered as being the approval or rejection by the individual members of, or the individual stockholders in, the nonprofit agricultural cooperative marketing association.
If the director finds that a favorable vote has been given as provided in Section 77462, he or she shall so certify and give notice of the vote to all producers, processors, and shippers whose names and addresses are on file with the director.
If the director finds that a favorable vote has not been given as provided in this article, he or she shall so certify and declare this chapter inoperative. The director may conduct another implementation referendum vote one or more years after the previous vote has been taken.
Upon certification of the commission, the members and alternates of anybody operating pursuant to an existing state marketing order affecting the same subject matter of this chapter shall comprise the initial membership of the commission. Thereafter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures established by the commission with the concurrence of the director.
Prior to the referendum vote conducted by the director pursuant to this article, the proponents of the commission shall deposit with the director an amount of funds determined necessary by the director to defray the expenses of preparing the necessary lists and information and conducting the vote. Any funds not used for this purpose shall be returned to the proponents of the commission who deposited the funds with the director. Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the director and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [77481. - 77488.]
The commission shall, not later than February 1 of each year, establish the assessment for the marketing season that begins February 1 and continues through January 31 of the following year. The assessment shall not exceed the following amounts:
Two and one-half cents ($0.025) per crate, or the equivalent, for strawberries delivered for shipping by producers.
Two and one-half cents ($0.025) per crate, or the equivalent, for strawberries received by shippers from producers.
Two and one-half cents ($0.025) per 14 pounds for strawberries delivered for processing by producers.
Two and one-half cents ($0.025) per 14 pounds for strawberries received by processors for processing from producers.
An assessment greater than the amounts in this section may not be charged unless it is approved in accordance with the voting requirements of Section 77462.
An assessment established by the commission shall require a favorable vote of not less than two-thirds of the voting producer members, a majority of the voting shipper members, and a majority of the voting processor members on the commission.
This chapter does not apply to strawberries produced only for a producer’s home use or to strawberries that are used only for ornamental purposes.
Every shipper and processor shall keep a complete and accurate record of all strawberries shipped or processed by him or her with the name of the producer whose strawberries were shipped or processed. A producer who delivers or markets strawberries to persons other than to a shipper or processor shall keep a complete and accurate record of all those strawberries. The records shall contain information required by the commission. The records shall be preserved by the producer, shipper, or processor for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the director from any source, including the names and addresses of producers, shall be confidential and shall not be disclosed except when required by court order in a judicial proceeding. Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission.
Producer assessments shall be upon the producer. The first shipper or processor of strawberries being assessed shall deduct the assessment from amounts paid by him or her to the producer, and shall be a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission. A producer who delivers or markets strawberries to persons other than to a shipper or processor shall pay an assessment directly to the commission at the time and in the manner prescribed by the commission.
Every shipper or processor shall be personally liable for the payment of the collected assessments from producers, and failure to collect the assessment from any producer shall not exempt the processor or shipper from liability.
Any assessment that is levied as provided in this chapter is a personal debt of every producer, processor, or shipper so assessed. Failure of a shipper or processor to make payment of the collected producer assessment to the commission shall not relieve the producer of this obligation.
Any producer, shipper, or processor who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be past due and, in addition, interest on the unpaid balance at the rate of 1.5 percent per month.
In addition to any other penalty imposed, the commission may require any person who fails to pay any assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount and for a period of time specified by the commission as assurance that all payments to the commission will be made when due.
ARTICLE 7. Actions and Penalties [77491. - 77497.]
It is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000) or by both fine and imprisonment, for any person to do any of the following:
Willfully to render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of strawberries in order to avoid payment of assessments on the product’s highest value.
Fail to render or furnish a report, statement, or record required by the commission.
When engaged in the shipping or processing of strawberries or in the wholesale or retail trade of strawberries, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom he or she has received strawberries and the quantity so received.
Secrete, destroy, or alter records required to be kept by this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the director. The determination of the director shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for obtaining injunctive relief or specific performance, relating to this chapter and the rules and regulations adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief. A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required. Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding strawberries until there is full compliance with, and satisfaction of, the judgment. Upon a favorable judgment for the commission, the court may order that the commission be reimbursed for reasonable attorney’s fees and other actual related costs. Venue for these actions is at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any penalty or other remedy that is prescribed under this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the alleged violation.
The commission is not required to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.
This chapter shall be liberally construed. If any section, clause, or part of this chapter is for any reason held unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the remaining portions of this chapter or the application of this chapter to any other persons or under any other circumstance.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [77498. - 77500.]
Every five years, commencing with the 1999–2000 marketing season, the director shall hold a hearing to determine whether the operation of this chapter should be continued. If the director finds after the hearing that a substantial question exists among the producers, processors, and shippers assessed under this chapter regarding whether the operation of this chapter should be continued, the director shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the director finds that a majority of the eligible producers, processors, and shippers voting in the referendum voted in favor of continuing this chapter. In finding whether the commission is continued pursuant to this article, the vote of any nonprofit agricultural cooperative marketing association that is authorized by its members to so vote shall be considered as being the approval or rejection by the individual members of, or the individual stockholders in, the nonprofit agricultural cooperative marketing association.
If the director finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the director shall so certify and this chapter shall remain operative. If the director finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the marketing season ending January 31, 2000. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 77499.5. No bond or security shall be required for any such referendum.
Following a hearing, and favorable referendum if required, conducted prior to January 31, 2000, the process specified in Section 77498 shall be conducted by the commission every fifth year thereafter between February 1 and June 30, unless a referendum is conducted as the result of a petition pursuant to Section 77499. In that case, the hearing, and referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the director that the commission be suspended. Any suspension shall not become effective until the expiration of the current marketing season.
The director shall, upon receipt of a recommendation, or may, after a public hearing to review a petition filed with him or her requesting such suspension, signed by 15 percent of the producers, processors, or shippers by number who produced, processed, or shipped not less than 15 percent of the volume in the immediately preceding season, cause a referendum to be conducted among the listed producers, processors, and shippers to determine if the operations of the commission shall be suspended. However, the director shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not effectuated its declared purposes.
The director shall establish a referendum period, which shall not be less than 10 or more than 60 days in duration. The director may prescribe additional procedures necessary to conduct the referendum. At the close of the established referendum period, the director shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers, processors, and shippers from the list established by the director participate in the referendum, the director shall suspend the operation of this chapter, if the director finds either one of the following:
Sixty-five percent or more of the producers, processors, and shippers who voted in the referendum voted in favor of suspension, and the producers, processors, and shippers so voting marketed a majority of the total quantity of strawberries marketed in the preceding marketing season by all of the producers, processors, and shippers who voted in the referendum.
That a majority of the producers, processors, and shippers who voted in the referendum voted in favor of suspension, and that the producers, processors, and shippers so voting marketed 65 percent or more of the total quantity of strawberries marketed in the preceding season by all of the producers, processors, and shippers who voted in the referendum.
After the effective date of suspension of this chapter and of the commission, the operations of the commission shall be concluded and all moneys held by the commission, and moneys collected by assessment and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding current marketing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the pro rata refund to those persons, any moneys remaining and any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program or used to fund activities related to the subject matter of this chapter.
Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all producers, processors, and shippers affected by the suspension whose names and addresses are on file.
CHAPTER 18. California Forest Products Commission [77501. - 77666.]
ARTICLE 1. Declaration and General Provisions [77501. - 77507.]
The production and marketing of forest products constitute an important industry of this state; the industry provides substantial and necessary revenues for the state and employment for its citizens.
The maintenance of the forest products industry of California is necessary to ensure the public of a continuous supply of forest products and the maintenance of needed levels of income for those persons engaged in the industry.
The production and marketing of forest products produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, or by any individual in accordance with this chapter or with the rules and regulations adopted pursuant to this chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of a particular industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
The forest products industry in this state is expanding. The success and expansion of the industry is uniquely dependent upon effective promotion, public information and education, and research because the creation of new markets is essentially a matter of educating and informing people regarding a previously underrecognized industry. The forest products industry also provides an important source of jobs for many people in this state, a high proportion of whom reside in historically depressed areas of the state, and serves to ensure the preservation of an agrarian society.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of forest products the opportunity to avail themselves of the benefits of collective action in the broad fields of generic product promotion of forest products, public information and education, and research necessary to achieve the purposes stated herein.
ARTICLE 2. Definitions [77521. - 77531.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Forest Products Commission.
“Secretary” means the Secretary of Food and Agriculture.
“Ex officio” means a nonvoting member of the commission.
“Marketing year” or “fiscal year” means the period beginning January 1 of any year and extending through December 31 of the same year.
“Person” means an individual, partnership, corporation, limited liability company, firm, company, or other entity doing business in California.
“Producer” means any person who owns timber in California immediately prior to felling, or the first person who acquires either the legal title or beneficial title to timber after it has been felled from land owned in California by a federal agency, or any other person, agency, or entity exempt from property taxation under federal or state law.
“Producer” includes any person who owns or acquires legal title or beneficial title to downed timber in this state and also includes the seller of timber located on land in the state owned by that seller if the timber sales agreement, contract, or other document provides for the payment of the purchase price on the basis of actual timber volume scaled and does not contain a passage of title clause.
For purposes of this chapter, a person in California that owns, controls, or is affiliated with any other person engaged in the selling or acquiring of timber in California in any marketing year shall be considered to be the producer of all timber sold or acquired by that person.
“Affiliate” or “affiliated with” means a person who directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control of another person.
“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of any person.
“Producer” does not include any person who sells or acquires in any marketing year less than 5,000,000 board feet net Scribner Decimal C log rule, or the equivalent thereof as determined by the commission.
“Product promotion” means the generic promotion of forest products in domestic and foreign markets. “Product promotion” does not include reference to either unprocessed logs sold in foreign markets or to rough-sawn products sold in foreign markets for remanufacture.
“Research” means any economic, cultural, or biological search, inquiry, examination, investigation, or experimentation, or any other search, inquiry, examination, investigation, or experimentation.
“Timber” or “forest products” means trees of any species maintained for eventual harvest whether planted or of natural growth, standing or down, on privately or publicly owned land, and also includes wood products related thereto, but does not mean nursery stock.
ARTICLE 3. The California Forest Products Commission [77541. - 77555.]
There is in the state government the California Forest Products Commission. The commission is composed of 10 members.
Three producers shall be elected by and from producers of 5,000,000 to 20,000,000, inclusive, board feet net Scribner Decimal C log rule, or the equivalent, thereof, in the preceding marketing year; three producers shall be elected by and from producers of between 20,000,001 to 100,000,000, inclusive, board feet net Scribner Decimal C log rule, or the equivalent, thereof, in the preceding marketing year; and three producers shall be elected by and from producers of over 100,000,000 board feet net Scribner Decimal C log rule, or the equivalent, thereof, in the preceding marketing year.
One member shall be either a public member or an industry member, as determined by a majority of the producer members elected pursuant to subdivision (b). If the producer members determine that the member shall be a public member, the public member shall be appointed by the secretary from the nominees recommended by the producer members. If the producer members determine that the member shall be an industry member, the producers shall elect an industry member to the commission by majority vote.
The secretary and other governmental officers, as determined by the commission, shall be ex officio members of the commission.
The ex officio members are nonvoting members of the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make corrections required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the cessation or correction of the activities or functions, as required by the secretary, has been accomplished by the commission.
Any actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
At the same time the written notice is provided to the commission, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and the secretary’s recommendations with respect to any action that will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
When the secretary is required to concur in a decision of the commission, the secretary shall concur, refuse to concur, or request additional information from the commission within 15 working days from the date the secretary receives notification of the decision.
The commission shall reimburse the secretary for all expenses incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary has acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for the payment of the secretary’s legal costs with regard to that action.
An alternate member to each member of the commission, except the ex officio members, shall be elected or appointed in the same manner and for the same term as the member. Except as provided in Section 77551, an alternate member shall, in the absence of the member for whom he or she is an alternate, serve in the place of the member and shall have and exercise all of the rights, privileges, and powers of the member when serving on the commission. In the event the status of a member changes thereby making the member ineligible to serve, or in the event of the death, removal, resignation, or disqualification of a member, the alternate member shall act as a member of the commission until a qualified successor is elected.
Any vacancy on the commission occurring by the failure of any person elected or appointed to or serving on the commission as a member or alternate member to continue in his or her position because of a change in his or her status thereby making the person ineligible to serve, or because of the death, removal, resignation, or disqualification of a member, shall be filled for the unexpired portion of the term by a majority vote of the remaining members of the commission. That person shall possess all of the same qualifications set forth in this article as is required for the person whose office he or she is to occupy.
Any producer member and his or her alternate member shall be a producer or an authorized representative of a producer. Producer members and their alternate members shall maintain their qualifications pursuant to Section 77528 during their term of office.
Not more than one producer member and one alternate member shall be persons employed by, or connected in a proprietary capacity with, the same corporation, firm, partnership, association, or business organization. Any alternate serving on the commission who is employed by, or connected in a proprietary capacity with, a person serving as a member of the commission from the same corporation, firm, partnership, association, or business organization, shall serve as an alternate to the member.
The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate member, respectively, on the commission. The public member and his or her alternate member shall not have any financial interest in the forest products industry.
The industry member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate member, respectively, on the commission. The industry member or his or her alternate member may have a financial interest in the forest products industry. However, the industry member or his or her alternate member shall not be a producer as defined in subdivision (a) of Section 77528, or a person who sells or acquires timber but who is exempt from the meaning of “producer” pursuant to subdivision (c) of that section.
The term of office of each member, except the ex officio members, shall be three years, commencing with the beginning of the following marketing year and until a qualified successor is elected.
However, with respect to the first producer members of the commission, one-third of each category specified in Section 77541 shall serve for one year, one-third shall serve for two years, and one-third shall serve for three years, with the determination of the term of each member within each category to be made by lot.
No member may serve more than three consecutive three-year terms.
The commission shall be and is hereby declared to be a corporate body. It may sue and be sued, enter into contracts, adopt a seal, and have and possess all of the powers of a corporation. Copies of its proceedings, records, and acts when authenticated, shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission shall be six members of whom at least five shall be producer members. Notwithstanding Section 77546, any alternate member may serve in the absence of any member if the member’s alternate is also absent and the action is necessary to establish a quorum. Except as provided in Section 77663, the vote of a majority of the members present at a meeting at which there is a quorum constitutes an act of the commission.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission.
No member, alternate member, or member of a committee established by the commission who is a nonmember of the commission, shall receive compensation. Each member of the commission or each alternate member serving in the place of a member, except ex officio members who are officers or employees of a governmental entity, and each member of a committee established by the commission who is a nonmember of the commission, may receive per diem of not more than one hundred dollars ($100) per day, as established by the commission, and may also receive necessary traveling expenses and meal allowances, as approved by the commission. The per diem, traveling expenses, and allowances may be paid for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission.
All funds received by any person from the assessments levied pursuant to this chapter or otherwise received by the commission shall be deposited in banks that the commission may designate and shall be disbursed by order of the commission through an agent designated by the commission for that purpose. The agent shall be bonded by a fidelity bond that is executed by a surety company authorized to transact business in this state, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission.
No member of the commission, alternate member, or any employee or agent thereof, is personally liable for the contracts of the commission. No member of the commission, alternate member, or any employee or agent thereof, is responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or of omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member of the commission, alternate member, or any employee or agent thereof, is responsible individually for any act or omission of any other member of the commission, alternate member, or any employee or agent thereof.
Liability is several and not joint, and no member of the commission, alternate member, or any employee or agent thereof, is liable for the default of any other member of the commission, alternate member, or any employee or agent thereof.
ARTICLE 4. Powers and Duties of the Commission [77571. - 77590.]
The powers and duties of the commission include, but are not limited to, all of those specified in this article.
The commission may adopt and, from time to time, alter, rescind, modify, and amend bylaws, regulations, operating procedures, and orders for carrying out this chapter, including regulations for appeals from any bylaw, regulation, operating procedure, or order of the commission.
The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, the proper implementation of this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter.
If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may retain a management firm or the staff from any board, commission, or committee of the state or federal government to perform the functions prescribed by this section under the control of the commission.
The commission may fix the compensation for all of its employees.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings that shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary.
A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the secretary. In addition, the secretary may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may present facts to, and negotiate with state, federal, and foreign agencies on matters which affect this chapter.
The commission may enter into contracts to receive or render services in formulating and conducting plans and programs and any other contracts or agreements that the commission may deem necessary for carrying out this chapter.
The commission may conduct, and contract with others to conduct, research, including the study, analysis, accumulation, and dissemination of information obtained from the research or elsewhere, regarding this chapter.
The commission may promote the sale of forest products by advertising and other promotional means, including cost sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for forest products and to educate and instruct the public with respect to the use of forest products. The commission may not promote the sale of unprocessed logs in foreign markets or rough-sawn products for remanufacture in foreign markets. Promotional activities for foreign export markets shall be limited exclusively to value-added forest products in finished manufactured form and may not include cants.
The commission may accept contributions or match private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies, for purposes of carrying out this chapter.
The commission may publish and distribute, without charge, bulletins or other communications to persons subject to this chapter.
The commission shall establish an assessment rate to defray its operating costs.
The commission shall adopt an annual budget according to generally accepted accounting practices. The secretary shall concur in the adoption of the budget prior to the encumbrance of funds, except for any obligations incurred pursuant to Section 77576.
The commission shall submit to the secretary, for his or her concurrence, an annual statement of contemplated activities authorized pursuant to this chapter.
The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding involving this chapter, all lists in their possession of persons subject to this chapter.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
ARTICLE 5. Implementation and Voting Procedures [77601. - 77609.]
Within 60 days after the effective date of this chapter, the secretary shall establish a list of producers eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require producers and others to submit the names and mailing addresses of all known producers. The secretary also may require that the information provided include the volume of timber sold or acquired in the preceding marketing year by persons subject to this chapter or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 77602. The secretary may also request the assistance of the State Board of Equalization in gathering the information. Notwithstanding any other provision of law, the State Board of Equalization shall provide the secretary the information that shall be used only for purposes specified in this chapter. The request for the information shall be in writing.
Any producer whose name does not appear on the list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a producer. The absence of a producer’s name from the list does not exempt the person from paying assessments and does not invalidate any votes conducted pursuant to this chapter.
Proponents and opponents of the commission may contact producers on the lists in a form and manner prescribed by the secretary so long as all expenses associated with the contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds, in a referendum vote conducted by the secretary, that at least 40 percent of the total number of producers from the list established by the secretary pursuant to this article participate and that either of the following has occurred:
Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting sold or acquired a majority of the total volume of timber in the preceding marketing year by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting sold or acquired 65 percent or more of the total volume of timber in the preceding marketing year by all of the producers who voted in the referendum.
The secretary shall establish a period, which shall not be less than 10 days or more than 60 days, to conduct the referendum and may prescribe additional procedures that may be necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period, except that the total referendum period shall not exceed 60 days.
The nonreceipt of a ballot by any producer shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 77602, the secretary shall certify and give notice of the favorable vote to all affected producers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in Section 77602, the secretary shall certify and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one year or more after the previous referendum has been held.
Upon certification of the commission, the secretary shall contact all producers by mail or call meetings of producers for the purpose of nominating and electing persons to the commission. All producers on the secretary’s list shall be provided written notice of any election meetings at least 10 days prior to the meeting date.
To be eligible for election to the commission, nominees shall present to the secretary a nomination petition with the signatures of at least three eligible producers from the category of producers specified in Section 77541 from which the nominee is seeking election.
Subsequent to the first election of members and alternate members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures established by the commission with the approval of the secretary.
Subsequent to the initial implementation referendum vote and the first election of commissioners, the commission shall establish procedures for the purpose of providing persons subject to this chapter with access to producers on the commission’s list of producers for purposes related to an election or referendum or an act or determination of the commission. Access to producers shall not include actual release or disclosure of the commission’s confidential list of producers.
Prior to the referendum vote conducted by the secretary pursuant to Section 77602, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary list and information and conducting the vote.
Any funds which are not used to carry out Section 77602 shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out Section 77602 and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [77621. - 77627.]
The commission shall establish the assessment for the marketing year not later than January 1 of each year or as soon thereafter as is possible.
The assessment shall not exceed one dollar ($1) per thousand board feet net log scale Scribner Decimal C log rule, or the equivalent thereof, as determined by the commission.
The producer shall pay the assessment to the commission at the time and in the manner prescribed by the commission.
An assessment of more than the amount provided for in subdivision (b) may not be charged unless and until a greater assessment is approved pursuant to the vote requirements specified in Section 77602.
Any person requesting an exemption from this chapter shall file an affidavit with the commission attesting that he or she is not a producer. The affidavit shall contain all of the information required by the commission. The commission shall review the affidavit, conduct any additional investigation it deems appropriate, and approve or deny the affidavit. Approval of the affidavit does not exempt the person from the requirements of Section 77623.
Every producer and every person described in subdivision (c) of Section 77528 shall keep a complete and accurate record of all transactions involving the sale or purchase of timber. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be retained by the producer or person for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from producers is confidential and shall not be disclosed except when required by court order after a hearing in a judicial proceeding involving this chapter.
Information on volume shipments, product value, and any other related information that is required for reports to governmental agencies, financial reports to the commission or aggregate sales and inventory information, and any other information that the commission requires that gives only totals, but excludes individual producer information, may be disclosed by the commission.
The commission may request that the Governor, by general or special order, authorize examination by the State Board of Equalization of records maintained by the commission, if a reciprocal arrangement exists between the commission and the State Board of Equalization. The information so obtained pursuant to the order of the Governor shall not be made public except to the extent and in the manner that the order authorizes that it be made public.
Any assessment which is levied pursuant to this chapter is a personal debt of every producer so assessed.
Any producer who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, pay 112 percent interest per month on the unpaid balance.
When the producer is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
ARTICLE 7. Actions and Penalties [77641. - 77644.]
It is a misdemeanor for any person to do any of the following:
Refuse to render a report, statement, or record required by the commission.
Furnish a false report, statement, or record required by the commission.
Fail or refuse to furnish the commission, or its duly authorized agents, information concerning the names and addresses of persons from whom timber has been received and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of granting individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the rules and regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. The commission shall not be required to post a bond as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of that code is not required. Injunctive relief shall be granted pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of that code is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding timber until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it is entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
The repeal or suspension and termination of this chapter shall not do any of the following:
Affect or waive any right, duty, obligation, or liability which has arisen or which may thereafter arise in connection with this chapter.
Release or extinguish any violation of this chapter.
Affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [77661. - 77666.]
Beginning in 2001, and every ten years thereafter, the secretary shall hold a hearing to determine whether operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among the producers assessed under this chapter regarding whether operation of this chapter should be continued, the secretary shall submit the chapter for approval utilizing the voting procedures provided in Sections 77602 to 77604, inclusive.
If the secretary finds that a favorable vote has been given, the secretary shall so certify and this chapter shall remain in operation. If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare the operation of this chapter suspended upon expiration of the then current marketing season.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing year.
The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with the secretary requesting a suspension signed by not less than 20 percent of the producers who sold or acquired not less than 20 percent of the total volume of timber in the immediately preceding marketing year, hold a referendum among the producers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition, unless the petitioner shows, by a preponderance of the evidence, in a manner prescribed by the secretary, that the operation of this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period, that shall not be less than 10 days or more than 60 days. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if the secretary finds either one of the following has occurred:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of suspension, and the producers so voting sold or acquired a majority of the total volume of timber in the preceding marketing year by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting sold or acquired 65 percent or more of the total volume of timber in the preceding marketing year by all of the producers who voted in the referendum.
The secretary shall terminate the commission at the end of the then current marketing year if the secretary finds that the termination of the commission is requested in writing, within a 90-day period, by at least 51 percent of the eligible producers that sold or acquired at least 51 percent of the total volume of timber.
The producer originating the request shall file a written notice with the secretary in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the secretary.
The signatures to the petition requesting the termination need not all be appended to one sheet of paper. Each producer signing the petition shall specify his or her place of business in a manner that will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention to terminate the commission. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension, the operation of the commission shall be concluded and the funds remaining held by the commission and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all producers from whom assessments were collected in the immediately preceding marketing year. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the prorate refund to these producers, the remaining funds shall be withdrawn from the approved depository and paid to an appropriate program conducted by the University of California or the California State University, another state agency, or a federal agency which deals with the purposes of this chapter. If no such program exists, the funds shall be paid to the State Treasury as unclaimed trust funds.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all persons affected by the suspension whose names and addresses are on file.
CHAPTER 19. California Date Commission [77701. - 77885.]
ARTICLE 1. Declaration and General Provisions [77701. - 77710.]
The inability of the date industry to maintain or expand present markets for dates may result in unnecessary economic waste.
The production and marketing of dates constitutes an important industry that provides substantial and necessary revenues for the state and employment for its citizens.
The maintenance of the date industry in California is necessary to assure the public of a continuous supply of this vital product and the maintenance of needed levels of income for those engaged in the marketing of dates.
Opportunity exists for continued growth and expansion of the industry by creating new markets in major portions of this country and abroad. The success of the expansion program is uniquely dependent upon effective advertising, promotion, and research since the creation of new markets is essentially a matter of educating and informing people of the use, nutritional value, and availability of the commodity. The expansion of the date industry also provides an important source of jobs for many people in this state, and serves to ensure the preservation of an agrarian society.
The successes that the date industry has enjoyed have come in part through a commitment to industry funded research that has led to significant improvements in the quality and variety of the dates available to consumers. It has also led to dates being a better consumer value. The establishment of the commission will continue and enhance this research effort and move the date industry toward its potential, resulting in increased consumer value and enhanced grower returns.
The production and marketing of dates in this state is hereby declared to be affected with the public interest. This chapter is enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
It is hereby declared as a matter of legislative determination that commission members and alternates are intended to represent and further the interest of a particular industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to, and constitutes the public generally within the meaning of Section 87103 of the Government Code.
This chapter shall be liberally construed. If any provision of this chapter or application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end, the provisions of this chapter are severable.
A commission form of administration created by this chapter is uniquely situated to provide those engaged in the marketing of dates the opportunity to avail themselves of the benefits of collective action in the broad fields of development, maintenance, and expansion of markets; advertising and promotion; and research necessary to achieve the purposes stated herein.
No action taken by the commission, or by any individual in accordance with this chapter or with the rules and regulations adopted under this chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
ARTICLE 2. Definitions [77721. - 77736.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Date Commission.
“Commissioner” means any member of the commission.
“Date” means any variety of date produced in California, whether handled in whole or processed form.
“Department” means the Department of Food and Agriculture.
“Ex officio member” means a nonvoting member of the commission.
“Handle” means to engage in the business of a handler.
“Handler” means any person engaged in processing and marketing dates that the person has produced, purchased, or acquired from a producer, or is marketing on behalf of a producer, whether as owner, agent, employee, broker, processor, or otherwise. “Handler” also includes a producer who sells, consigns, or otherwise transfers dates to a handler who is not subject to this chapter.
“Market” or “marketing” means to sell, consign, or otherwise distribute dates into commercial channels of trade resulting in the sale of dates. Dates shall also be considered “marketed” when inspected and certified by any third party.
“Marketing research” means any research relating to the sale of dates.
“Marketing year” or “marketing season” means the period from October 1 of any year to September 30, inclusive, of the following year. The marketing year may be changed by a vote of 23 of the membership of the commission.
“Process” and “processing” are synonymous and mean the operations of receiving, cleaning, grading, freezing, drying, preserving, chopping, mashing, pitting, slicing, concentrating, macerating, extruding, or otherwise preparing dates for market in any form.
“Producer” means any person in this state who grows dates of any variety, and who, upon request, provides proof of commodity sale.
“Product research” means any research related to the development of new uses for dates.
“Production research” means any research related to the production, harvest, or post-harvest handling of dates.
“Secretary” means the Secretary of Food and Agriculture.
ARTICLE 3. The California Date Commission [77751. - 77767.]
There is in state government the California Date Commission. Except as otherwise provided in Section 77752.5, the commission is composed of six date handlers from District 1 and may include one public member.
The public member shall be appointed to the commission by the secretary from nominees recommended by the other members of the commission.
The secretary, and other appropriate individuals, as determined by the commission, shall be ex officio members of the commission.
District 1 consists of all of Riverside County. Additional districts may be added pursuant to Section 77752.5, and shall be numbered consecutively beginning with “District 2,” as each new district becomes subject to this chapter.
Handlers of dates who are not subject to this chapter on the date it becomes operative pursuant to Article 5 (commencing with Section 77811) may petition the commission to establish an additional district or districts composed of one or more counties that are not in District 1. If the petition is approved by a 23 vote of the membership of the commission, the secretary shall conduct an implementation vote of the handlers from those districts in accordance with Article 5 (commencing with Section 77811).
If the secretary certifies a favorable vote, all handlers from those districts shall be subject to this chapter. Thereafter, in accordance with procedures established by the commission, the number of handlers serving on the commission from each district shall be modified, if necessary, to ensure proper representation of each district. The commission shall not be composed of more than nine handlers.
The secretary may require the commission to correct or cease any activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make corrections required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions, as required by the secretary, has been accomplished by the commission.
Any action of the commission in violation of the written notice is without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
The secretary shall include in the written notice to the commission the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and the secretary’s recommendations with respect to any action that will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other appropriate relief.
When the secretary is required to concur in a decision of the commission, the secretary shall concur, refuse to concur, or request additional information from the commission within 15 working days from the date the secretary receives notification of the decision.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
An alternate member to each member of the commission, except the ex officio members, shall be elected or appointed in the same manner and for the same term as the member. An alternate member, in the absence of the member for whom he or she is an alternate, shall serve in place of the member and shall exercise all of the rights, privileges, and powers of the member when serving on the commission. In addition, if a member and his or her alternate are absent, any other alternate from the same district may serve in place of the member, and shall exercise all of the rights, privileges, and powers of the member when serving on the commission. If the status of a member changes, thereby making the member ineligible to serve, or in the event of the death, removal, resignation, or disqualification of a member, the alternate member shall act as a member of the commission until a qualified successor is elected or appointed.
Any vacancy on the commission occurring by the failure of any person elected to or serving on the commission as a member or alternate member to continue in his or her position due to a change in his or her status, thereby making the person ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled for the unexpired portion of the term by a majority vote of the remaining members of the commission. The appointee shall meet all of the qualifications set forth in this article as required for the member or alternate whose office he or she is to occupy.
Any member and alternate on the commission shall be an individual, partner, or employee representing a handler who has a financial interest in handling dates for market. The qualifications of a member and alternate shall be maintained during the entire term of office.
Not more than one member and one alternate shall be a person employed by, or connected in a proprietary capacity with, the same corporation, firm, partnership, association, or business organization.
The public member and his or her alternate member on the commission shall have all of the powers, rights, and privileges of any other member or alternate member, respectively, on the commission. The public member and his or her alternate member shall not have any financial interest in the date industry.
The term of office of all members and alternate members of the commission, except any ex officio member, shall be three years from the date of their election and until qualified successors are elected.
The commission is hereby declared and created a corporate body. It may sue and be sued, enter into contracts, adopt a seal, and has all of the powers of a corporation. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission is a majority of the voting members of the commission. Except as otherwise provided in subdivision (b) of Section 77841 and Sections 77731 and 77883, the vote of the majority of the members present at a meeting at which there is a quorum constitutes the act of the commission.
The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meeting of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
No member of the commission, or member of a committee established by the commission who is a nonmember of the commission, shall receive any compensation. Each member of the commission or each alternate member serving in place of a member, except ex officio members, and each member of a committee established by the commission who is a nonmember of the commission, may receive per diem of not more than one hundred dollars ($100) per day, as established by the commission, and may also receive necessary traveling expenses and meal allowances as approved by the commission. If per diem is paid, it shall be paid to members for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission.
All funds received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks which the commission may designate and shall be disbursed by order of the commission through an agent or agents designated by the commission for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member, alternate member, employee, or agent of the commission is personally liable for the contracts of the commission and no such person is responsible individually in any way to any handler or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as a principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member, alternate member, employee, or agent of the commission, is responsible individually for any act or omission of any other member, alternate member, employee, or agent of the commission. Liability is several and not joint, and no member, alternate member, employee, or agent of the commission is liable for the default of any other member, alternate member, employee, or agent of the commission.
ARTICLE 4. Powers and Duties of the Commission [77781. - 77801.]
The powers and duties of the commission include, but are not limited to, all of those specified in this article.
The commission may adopt, and from time to time alter, rescind, modify, and amend all necessary and proper bylaws, rules, regulations, and orders in accordance with commission procedures for purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
The commission may administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, the proper or advisable implementation of the purposes of this chapter. The commission may, in this connection, enter into contracts for services with public and private agencies which the commission determines necessary to carry out this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers it deems necessary. The officers have the powers and duties delegated to them by the commission.
Notwithstanding any other provision of law, the commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including private legal counsel, necessary to carry out this chapter. The commission may retain a management firm or the staff from any board, commission, or agency of the state or federal government to perform the functions prescribed by this section under the control of the commission. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices, incur expenses, enter into contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments that may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all its dealings that shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all handlers and copies of the summary shall also be submitted to the department. In addition, the secretary, as he or she determines necessary, may conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may make, in its name, contracts to receive or render services in formulating and conducting plans and programs and any other contracts or agreements that the commission deems necessary for carrying out this chapter.
The commission may conduct, and contract with others to conduct, marketing research, product research, production research, and any other research related to the purposes of this chapter, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere regarding this chapter. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate, and notwithstanding any other provision of law, may be maintained in confidence by the commission and not disseminated to any person not subject to this chapter.
The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the date industry.
The commission may promote the sale of dates by advertising and other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for dates, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of dates.
The commission may educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling dates, and conduct market surveys and analyses.
The commission may accept contributions of, or match private, state, or federal funds and employ or make contributions of funds to other persons or state or federal agencies for purposes of promoting and maintaining the date industry.
The commission may publish and distribute, without charge, bulletins and other communications for the dissemination of information to handlers.
The commission shall establish an assessment rate to defray the operating costs of the commission to carry out the purposes of this chapter.
The commission shall adopt an annual budget according to accepted accounting practices. The secretary shall concur in the adoption of the budget prior to the disbursement of funds, except for disbursements necessary to pay the compensation of employees of the commission.
The commission shall annually prepare and submit to the secretary, for his or her concurrence, a statement of contemplated activities authorized pursuant to this chapter.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The commission may administer, if requested by an advisory board, a board of directors, or any other authorized agent of a governmental program, any program related to the date industry.
ARTICLE 5. Implementation and Voting Procedures [77811. - 77818.]
Within 15 days of the effective date of this section, the secretary shall establish a list of handlers eligible to vote on implementation of this chapter. In establishing the list, the secretary may require that producers, handlers, manufacturers, county agricultural commissioners, and others submit the names and mailing addresses of all known handlers. The secretary may also require that the information provided include the quantity of dates handled by handlers or, in the alternative, may establish procedures for receiving the information at the time of the vote specified in Section 77812. The request for the information shall be in writing, and the requested information shall be filed within 10 days following receipt of the request.
Any handler whose name does not appear on the list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a handler. The absence of a handler’s name from the list does not exempt the handler from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
Proponents and opponents of the commission may contact handlers on the lists in a form and manner prescribed by the secretary if all expenses associated with those contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds, in a referendum vote conducted by the secretary, that at least 40 percent of the total number of handlers from the list established by the secretary pursuant to this article have participated and that either of the following has occurred:
Sixty-five percent or more of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled a majority of the total quantity of dates in the preceding season by all of the handlers who voted in the referendum.
A majority of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled 65 percent or more of the total quantity of dates in the preceding marketing year by all of the handlers who voted in the referendum.
The secretary shall establish a period to conduct the referendum that shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures that may be necessary to conduct the referendum.
If the initial period established is less than 60 days, the secretary may extend the period to not more than 60 days.
The failure of a handler to receive a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in this article, the secretary shall certify and declare this chapter operative and give notice of the favorable vote to all handlers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in this article, the secretary shall certify and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one or more years after the previous vote was taken.
Upon certification of the commission, the eligible handler members and alternates of any body operating pursuant to an existing federal marketing order for dates comprise the initial membership of the commission. Thereafter, persons to be elected to the commission shall be selected pursuant to nomination and elections procedures that are established by the commission with the concurrence of the secretary. For purposes of elections, the vote of each handler shall be weighted by the pounds of dates handled during the immediately preceding marketing year.
Prior to the secretary holding the referendum pursuant to this article, the proponents of the commission shall deposit with the secretary any amounts that the secretary determines necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum.
Any funds not used in carrying out this article shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [77841. - 77847.]
The commission, prior to the beginning of each marketing year, or as soon thereafter as possible, shall establish the assessment for the following marketing season, which shall not exceed five dollars ($5) per hundredweight for dates handled.
An assessment greater than the amount provided in subdivision (a) may not be imposed unless and until, a greater assessment amount is approved by a 23 vote of the membership of the commission.
This chapter does not apply to any person who handles less than 25,000 pounds of dates per year. However, any such person shall file an affidavit with the commission establishing that he or she is exempt from this chapter. The commission shall determine whether to approve the affidavit. Additional exemptions from this chapter may be approved by a majority vote of the commission.
Every person who handles dates in any quantity shall keep a complete and accurate record of all dates handled. The records shall be in simple form and contain any information that the commission prescribes.
The records shall be retained by the handler for a period of three years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from handlers is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter.
Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission, aggregate sales and inventory information, and any other information that the commission requires that gives only totals, but excludes individual handler information, may be disclosed by the commission.
The assessments shall be levied upon and paid by the handler pursuant to this chapter.
Any assessment that is levied pursuant to this chapter is a personal debt of every handler so assessed.
Any handler who fails to file a return or pay any assessment within the time required by the commission shall pay the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, pay 112 percent interest per month on the unpaid balance.
In addition to any other penalty imposed, the commission may require any person who fails to pay assessments or related charges pursuant to this article to furnish and maintain a surety bond in a form and amount and for a period of time specified by the commission as assurance that all payments to the commission shall be made when due. However, a bond shall not be required until the commission has made a reasonable attempt to obtain compliance from the handler.
ARTICLE 7. Actions and Penalties [77861. - 77865.]
It is unlawful for any person to do any of the following:
Fail to render or furnish a report, statement, or record required by the commission.
Willfully render or furnish a false report, statement, or record required by the commission.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall adopt procedures to grant individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the secretary. After exhaustion of all administrative remedies, the determination of the secretary is subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for obtaining injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of that part, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business involving dates subject to this chapter, until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it is entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any violation of this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
The suspension or termination of this chapter does not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [77881. - 77885.]
Every six years, beginning in the 2001–02 marketing year, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among handlers assessed under this chapter regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter for approval utilizing the voting procedures provided in Sections 77812 to 77814, inclusive.
If the secretary finds that a favorable vote has been given, the secretary shall so certify and this chapter shall remain in operation. If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare the operation of this chapter and the commission suspended upon expiration of the then current marketing year. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 77885.
Upon a finding by a 23 vote of the membership of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing year.
The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with the secretary requesting a suspension signed by not less than 20 percent of the handlers by number who handled not less than 20 percent of the volume in the immediately preceding marketing year, hold a referendum among the handlers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows, by a preponderance of evidence, that the operation of this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of this chapter if the secretary finds that at least 40 percent of the total number of handlers from the list established by the secretary have participated in the referendum and either one of the following has occurred:
Sixty-five percent or more of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled a majority of the total quantity of dates handled in the preceding marketing year by all of the handlers who voted in the referendum.
A majority of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled 65 percent or more of the total quantity of dates handled in the preceding marketing year by all of the handlers who voted in the referendum.
If a referendum is conducted as the result of a petition pursuant to subdivision (b), the costs to conduct the referendum shall be paid by the petitioners.
After the effective date of suspension, the operation of the commission shall be concluded and any and all funds remaining held by the commission and not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing year. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid to the University of California for continued research on dates. If no such program exists, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all handlers whose names and addresses are on file with the commission and to the appropriate policy committees in both the Assembly and Senate.
CHAPTER 20. California Cut Flower Commission [77901. - 78007.]
ARTICLE 1. Declaration and General Provisions [77901. - 77907.]
The production and marketing of cut flowers and cut greens products constitute an important industry of this state which not only provides substantial and necessary revenues for the state and employment for its citizens, but also furnish cut flowers and cut greens products to the public.
The maintenance of the cut flowers and cut greens industry of California is necessary to assure the consuming public of a continuous supply of this product and the maintenance of needed levels of income for those engaged in the industry.
The production and marketing of cut flowers and cut greens produced in this state are hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, or by any individual in accordance with this chapter or with regulations adopted under this chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of a particular agricultural industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are elected or appointed to the commission, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
A commission form of administration created by this chapter is designed to deal with the broad field of production research, education, advertising, market research, promotion, and trade of flowers.
ARTICLE 2. Definitions [77910. - 77924.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Flower” means all types of cut flowers and cut greens grown in California for decorative purposes.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Cut Flower Commission.
“Districts” shall be based on the gross dollar value of the product grown in a geographical area as follows:
District 1 consists of the Counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Glenn, Humboldt, Lake, Lassen, Marin, Mendocino, Modoc, Mono, Napa, Nevada, Placer, Plumas, Sacramento, San Francisco, San Joaquin, San Mateo, Santa Clara, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba.
District 2 consists of the Counties of Fresno, Inyo, Kings, Madera, Mariposa, Merced, Monterey, San Benito, Santa Cruz, and Tulare.
District 3 consists of the Counties of Kern, Los Angeles, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura.
District 4 consists of the Counties of Imperial, Orange, Riverside, and San Diego.
The boundaries of any district or the number of board members, or both, may be changed by a two-thirds vote of the membership of the commission, which is concurred in by the director, when necessary to maintain similar total production that represents a gross dollar value among the districts and to ensure proper representation by producers. These boundaries need not coincide with county lines.
“Market” or “marketing” means to sell flowers.
“Production research” means any cultural and biological research relating to field production of flowers.
“Marketing year” means the period beginning January 1 of any year and extending through the last day of December of that year.
“Producer” means any person in this state who grows flowers for market and who, upon request, provides proof of commodity sale. “Producer” does not include any person who has grown less than a gross value of two hundred fifty thousand dollars ($250,000) of flowers in the preceding marketing year.
The dollar amount specified in subdivision (a) may be increased by vote of two-thirds of the membership of the commission.
The dollar amount specified in subdivision (a) may be decreased only if approved by referendum pursuant to Sections 77970 to 77974, inclusive. For purposes of a referendum conducted pursuant to this subdivision, the term “producer” in Sections 77970 to 77974, inclusive, includes persons who would become subject to this chapter if the referendum is approved.
“Market analysis” means any marketing, sales, promotion, health, and social research relating to the marketing of flowers in this state and nationally and internationally.
“Market development” means trade promotion, public information, dissemination of information on health and social issues and other matters, and activities related to the production of flowers in this state and nationally and internationally.
“Market research” means any investigation, development, analysis, or use of information relating to the marketing, sales, or promotion of flower products in this state and nationally and internationally, including, but not limited to, trade practices, consumer trends, promotion, sales, and advertising.
“Shipping research, analysis, and development” means the investigation, development, analysis, or use of information relating to the shipping of flower products and the development of shipping opportunities, practices, and methods in this state, nationally, and internationally.
“Ship” means to transport flowers.
“Advertising and sales promotion” means, in addition to its ordinarily accepted meaning, trade promotion and activities for the prevention, modification, or removal of trade barriers which restrict the free flow of flowers to market, including the presentation of facts to, and negotiations with, state, federal, and foreign governmental entities on matters which affect the marketing of flowers, to the extent permitted by federal law.
ARTICLE 3. The California Cut Flower Commission [77925. - 77941.]
There is in the state government the California Cut Flower Commission. The commission shall be composed of nine members.
Eight producers, two each from Districts 1 to 4, inclusive, shall be elected by and from producers within the respective districts.
One member shall be either a public member or a producer member, as determined by a majority of the producer members elected pursuant to subdivision (b).
If the producer members determine that the member shall be a public member, the public member shall be appointed by the secretary from the nominees recommended by the producer members.
If the producer members determine that the member shall be a producer, the producer members shall appoint a producer to the commission, who shall be known as the producer member-at-large.
The secretary and other governmental officers, as determined by the commission, shall be ex officio members of the commission.
The ex officio members are nonvoting members of the commission.
Notwithstanding subdivision (b), a person who serves on the commission on January 1, 2021, and was elected by a district pursuant to that subdivision as that subdivision read on December 31, 2020, shall serve until the expiration of their term.
The amendments made to this section during the second year of the 2019–20 Regular Session of the Legislature do not affect the term of office held by any producer serving on the commission.
The director may require the commission to correct or cease any activity or function which is determined by the director not to be in the public interest or which is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make corrections required by the director, the director may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions, as required by the director, has been accomplished by the commission.
Any action of the commission in violation of the written notice is without legal force or effect. The director, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
At the same time the written notice is provided to the commission, the director shall notify the commission in writing of the specific acts which the director determines are not in the public interest or are in violation of this chapter, the director’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and the director’s recommendations with respect to any action that will make the activities or functions acceptable.
The commission or the director may bring an action for judicial relief from the director’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other appropriate relief.
When the director is required to concur in a decision of the commission, the director shall concur, refuse to concur, or request additional information from the commission within 15 working days from the date the director receives notification of the decision.
The commission shall reimburse the director for all expenditures incurred by the director in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the director acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the director’s legal costs with regard to that action.
An alternate member to each member of the commission, except the ex officio members, shall be elected in the same manner and for the same term as the member. Except as provided in Section 77937, an alternate member shall, in the absence of the member for whom he or she is an alternate, serve in place of the member and shall exercise all of the rights, privileges, and powers of the member when serving on the commission. If the status of a member changes, thereby making the member ineligible to serve, or in the event of the death, removal, resignation, or disqualification of a member, the alternate member shall act as a member of the commission until a qualified successor is elected or appointed.
Any vacancy on the commission occurring by the failure of any person elected to or serving on the commission as a member or alternate member to continue in his or her position due to a change in his or her status, thereby making the person ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled for the unexpired portion of the term by a majority vote of the remaining members of the commission. The appointee shall meet all of the qualifications set forth in this article as required for the member or alternate whose office he or she is to occupy.
Any vacancy on the commission occurring by the failure of the public member or his or her alternate member to continue in his or her position due to a change in his or her status, thereby making the member or alternate ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled for the unexpired portion of the term by the director from nominees recommended by the commission. The appointee shall meet all of the qualifications set forth in this article as required for the member or alternate whose office he or she is to occupy.
Any producer member and his or her alternate member on the commission shall be an individual producer or an authorized representative of a producer who has a financial interest in producing, or causing to be produced, flowers for market. Qualifications of producer members and their alternate members shall be maintained during their entire term of office.
The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate member, respectively, on the commission. The public member and his or her alternate member shall not have any financial interest in the flower industry.
The term of office of all members and alternate members of the commission, except ex officio members, is three years commencing in the month of December before the beginning of the marketing year in the year of their election and until qualified successors are elected.
The commission is hereby declared and created a corporate body. It may sue and be sued, enter into contracts, adopt a seal, and has all of the powers of a corporation. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission is a majority of the voting members of the commission. Any alternate member to any producer member may serve in the absence of any other member if that member’s alternate is also absent, if that action is necessary to establish a quorum. Except as provided in Sections 77914 and 78002, the vote of a majority of the members present at a meeting at which there is a quorum shall constitute the act of the commission.
The director or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission.
Members and alternate members of the commission and members of committees established by the commission shall not receive any compensation but shall receive the per diem established by Section 11564.5 of the Government Code. Ex officio members who are state officers or employees and who are compensated by the state are not eligible for per diem pursuant to this section. In addition, members and alternate members of the commission and members of committees established by the commission shall be reimbursed for actual and necessary travel expenses under the rules of the Department of Human Resources. The per diem and reimbursement for travel expenses shall be paid to those members for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission.
All funds received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks that the commission may designate and shall be disbursed by order of the commission through an agent or agents designated by the commission for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The commission may maintain a separate bank account in order to create a permanent research fund. The account shall be named the Kee Kitayama Memorial Research Foundation Account.
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member, alternate member, employee, or agent of the commission is personally liable for the contracts of the commission nor is that person responsible individually in any way to any producer or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as a principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member, alternate member, employee, or agent of the commission, is responsible individually for any act or omission of any other member, alternate member, employee, or agent of the commission. Liability is several and not joint, and no member, alternate member, employee, or agent of the commission is liable for the default of any other member, alternate member, employee, or agent of the commission.
ARTICLE 4. Powers and Duties of the Commission [77945. - 77965.]
The powers and duties of the commission include, but are not limited to, all of those specified in this article.
The commission may adopt, amend, and repeal regulations and operating procedures necessary to carry out this chapter, including regulations governing appeals from actions taken by the commission pursuant to any of its regulations or operating procedures.
The commission may administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, the proper or advisable effectuation of this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter. The commission may retain a management firm or the staff from any board, commission, or agency of the state or federal government to perform the functions prescribed by this section under the control of the commission. If any person employed by the commission engages in any conduct which the director determines is not in the public interest or which is in violation of this chapter, the director shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the director, the director may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, borrow funds in advance of receipt of assessments, and repay producers for costs incurred during the initial formation of the commission, as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all its dealings which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the director. A summary of the audit shall be reported to all producers and a copy of the summary shall also be submitted to the department. In addition, the director may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters which affect this chapter, to the extent permitted by federal law.
The commission shall not expend more than 10 percent of its annual budget during the 1991 to 1995, calendar years, inclusive, on activities for the modification or removal of trade barriers that restrict the free flow of flowers to market, including litigation involving trade practices, to the extent permitted by federal law.
The commission may make, in its name, contracts to receive or render services in formulating and conducting plans and programs and any other contracts or agreements that the commission deems necessary for carrying out this chapter.
The commission may conduct, and contract with others to conduct, production research, including the study, analysis, accumulation, and dissemination of information obtained from that research or otherwise, regarding this chapter.
The commission may implement and conduct, and contract with others to implement and conduct, market analysis, market development, market research, and shipping research, analysis, and development. The commission may study, analyze, accumulate, and disseminate any and all information obtained from those activities.
The commission may accept contributions or matching private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies, for purposes of this chapter.
The commission may publish and distribute, without charge, bulletins and other communications for the dissemination of information to producers.
The commission shall establish an assessment rate to defray the operating costs of the commission.
The commission shall adopt an annual budget according to accepted accounting practices. The director shall concur in the adoption of the budget prior to the encumbrance of funds, except for encumbrances necessary to pay the compensation of employees of the commission.
The commission may advertise or otherwise promote the sale of flowers.
The commission may jointly advertise or otherwise promote the sale of flowers with any other corporation or organization advertising or otherwise promoting the sale of any other product or commodity.
The commission may work, and cooperate with others, to develop and arrange for shipping alternatives for producers in order to improve the quality of flowers and access to markets.
The commission shall annually prepare and submit to the director, for his or her concurrence, a statement of contemplated activities authorized pursuant to this chapter.
The commission and the secretary shall keep confidential and shall not disclose, except when required by court order in a judicial proceeding, all lists of producers in their possession.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
To prevent unfair trade practices that are detrimental to California’s cut flower industry, including, but not limited to, deception and misinformation, the commission shall annually specify the types and varieties of cut flowers for which it shall collect from producers who participate, and disseminate to these producers, market price information based on sales that have occurred.
The identity of each producer reporting the information and the information reported pursuant to this section and the provisions listed in Section 7920.505 of the Government Code shall be kept confidential and not made public under any circumstances. Information that gives industry totals, averages, and other similar data may be disclosed by the commission.
The procedure for the collection and dissemination of the information specified in this section shall be adopted by the commission and approved by the secretary.
ARTICLE 5. Implementation and Voting Procedures [77970. - 77978.]
Within 45 days of the effective date of this chapter, the director shall establish a list of producers eligible to vote on the implementation of this chapter. In establishing the list, the director may require that producers submit the names and mailing addresses of all known producers. The director shall receive suggestions for inclusion on that list from any organization of producers, and may verify the eligibility of any person so suggested. The director also may require that the information provided include the quantity of flowers produced by each producer or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote conducted pursuant to Section 77971. The request for the information shall be in writing, and the requested information shall be filed within 10 days following receipt of the request.
Any producer whose name does not appear upon the appropriate list may have his or her name placed on the list by filing with the director a signed statement identifying himself or herself as a producer. The absence of a producer’s name from the list does not exempt the producer from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
Proponents and opponents of the commission may contact producers on the lists in a form and manner prescribed by the director so long as all expenses associated with the contacts are paid in advance.
Any proponent or opponent of the commission may submit to the director a statement of his or her position on the matter, and the director shall include these statements with the referendum ballots.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the director finds, in a referendum vote conducted by the director that at least 40 percent of the total number of producers from the list established by the director pursuant to this article have participated and that either of the following has occurred:
Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed a majority of the gross dollar value of flowers in the preceding marketing year by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the total gross dollar value of flowers in the preceding marketing year by all of the producers who voted in the referendum.
The director shall establish a period to conduct the referendum which shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures that may be necessary to conduct the referendum. If the initial period established is less than 60 days, the director may extend the period to not more than 60 days.
The failure of a producer to receive a ballot shall not invalidate a referendum.
If the director finds that a favorable vote has been given as provided in Section 77971, the director shall certify and give notice of the favorable vote to all producers whose names and addresses are on file with the director.
If the director finds that a favorable vote has not been given as provided in Section 77971, the director shall certify and declare this chapter inoperative. The director may conduct another implementation referendum vote one or more years after the previous vote has been taken.
Upon certification of the commission, the director shall contact all producers in each district by mail, or call meetings of producers in each district, for the purpose of nominating and electing persons to the commission. All producers on the director’s list shall be given written notice of any election meetings at least 10 days prior to the meeting date. To be eligible for election to the commission, producer nominees shall present to the director a nomination petition with the signatures of at least three eligible producers from the district from which the nominee is seeking election.
Subsequent to the first election of members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures which are adopted by the commission with the concurrence of the director.
Prior to the director holding the referendum pursuant to Section 77971, the proponents of the commission shall deposit with the director the amount that the director determines necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum.
Any funds not used in carrying out Section 77971 shall be returned to the proponents of the commission who deposited the funds with the director.
Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the director which were used in carrying out Section 77971 and for any legal expenses and other costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [77985. - 77990.]
The commission shall establish the assessment for the following marketing year not later than January 1 of each year, or as soon thereafter as is possible. The commission shall adopt bylaws that indicate when payment is due.
The assessment for the 1991 marketing year shall not be less than one-half of 1 percent, nor more than 1 percent, of the gross dollar value of flowers grown and shipped by a producer. In any subsequent marketing year, the assessment shall not be more than 1 percent of the gross dollar value of flowers grown and shipped by a producer.
A fee greater than the amount specified in subdivision (b) may not be charged unless approved by the vote specified in Section 77971.
No producer shall be assessed more than one hundred thousand dollars ($100,000) for any marketing year, except that this limitation shall not be applicable for the entire marketing year in which a producer does not comply with the assessment collection requirements established in this article and as prescribed by the commission.
This chapter does not apply to any person who grows flowers only for his or her own home use or who is not a producer. However, any such person who markets flowers shall submit all required reports and shall file an affidavit with the commission establishing that the person grows flowers valued at less than the gross value established pursuant to Section 77918. The commission shall then determine whether the affidavit should be approved.
The commission may terminate the collection of assessments directly from producers and, instead, collect producer assessments from shippers or handlers who shall deduct the assessment from amounts paid by the shippers or handlers to the producers and who shall be trustees of the funds until they are paid to the commission at the time and in the manner prescribed by the commission.
Every person in this state who grows flowers for market, whether or not the flowers grown are valued at less than the gross value established pursuant to Section 77918, shall keep a complete and accurate record of the gross dollar value of all flowers grown and cut. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be retained by the person for two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
The commission may specify, by regulation, the conditions under which proprietary information obtained from producers may be disclosed. Otherwise, all proprietary information obtained by the commission or the secretary from producers is confidential and shall not be disclosed except when required by court order in a judicial proceeding.
Information on volume shipments, product value, and any other related information that is required for reports to governmental agencies; financial reports to the commission or aggregate sales and inventory information; and any other information that the commission requires that gives only totals, but excludes individual producer information, may be disclosed by the commission.
Any assessment that is levied pursuant to this chapter is a personal debt of every producer so assessed. If the producer is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments for which a corporate producer may be subject pursuant to this chapter shall include identical liability upon each individual director or officer of the corporation.
Any producer who fails to file a return or pay any assessment within the time required by the commission shall pay the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, pay 112 percent interest per month on the unpaid balance.
ARTICLE 7. Actions and Penalties [77995. - 77998.]
It is unlawful for any person to do any of the following:
Fail or refuse to render a report, statement, or record required by the commission.
Furnish a false report, statement, or record required by the commission.
When engaged in the handling of flowers, to fail or refuse to furnish the commission or its duly authorized agents, information concerning the names and addresses of persons from whom the flowers have been received and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall adopt procedures to grant individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the director. The determination of the director shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for obtaining injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any regulation of the commission, including, but not limited to, the nonpayment of assessments, the failure or refusal to submit required records to the commission, or the intentional submission of false information to the commission. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of that part, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business involving flowers until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it is entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
The suspension or termination of this chapter shall not affect or waive any right, duty, obligation, or liability which has arisen or which may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [78000. - 78007.]
From January 1, 1995, to December 30, 1995, inclusive, the commission shall conduct a referendum among the producers to determine whether the operations of this chapter shall be approved and continued in effect. There is a favorable vote under this chapter if the director determines from the referendum that a majority of the eligible producers voting in the referendum voted in favor of continuing the operations of this chapter. If the director finds that a favorable vote has been given, the director shall so certify and this chapter shall remain effective. If the director finds that a favorable vote has not been given, the director shall so certify and declare the operations of this chapter suspended on December 31, 1995. Thereupon, operation of the commission shall be concluded and funds distributed in the manner provided in Section 78004. No bond or security shall be required for any such referendum.
Following a favorable referendum conducted prior to December 31, 1995, the commission shall conduct a referendum every fifth year thereafter, unless a referendum is conducted as the result of a petition filed pursuant to this article. In that case, the referendum shall be held pursuant to procedures provided in Section 78000 every fifth year following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing year.
The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with the secretary requesting a suspension signed by not less than 20 percent of the producers by number who produced not less than 20 percent of the gross dollar value of flowers in the immediately preceding marketing year, hold a referendum among the producers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows, by a preponderance of evidence, that the operation of this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 days nor more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of this chapter if the secretary finds that at least 40 percent of the total number of producers from the list established by the secretary have participated in the referendum and either one of the following has occurred:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed a majority of the total gross dollar value of flowers in the preceding marketing year by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed 65 percent or more of the total gross dollar value of flowers in the preceding marketing year by all of the producers who voted in the referendum.
The director shall terminate the commission at the end of the then current marketing year if the director finds that the termination of the commission is requested in writing, within a 90-day period, by at least 51 percent of the eligible producers that produce at least 51 percent of the total gross dollar value of flowers.
The person or persons originating the request shall file a written notice with the director in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the director.
The signatures to the petition requesting the termination need not all be appended to one sheet of paper. Each person signing the petition shall specify his or her place of business in a manner that will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention to terminate the commission. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension, the operation of the commission shall be concluded and any and all funds remaining held by the commission and not required to defray the expenses of concluding and terminating operations of the commission may be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing year. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations may be withdrawn from the approved depository and paid into the Kee Kitayama Research Foundation, or an appropriate program conducted by the University of California or the California State University, another state agency, or a federal agency that deals with the purposes of this chapter. If no such program exists, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all producers whose names and addresses are on file with the commission and to the appropriate policy committees in both the Assembly and Senate.
Upon the suspension of the operation of this chapter, the commission shall appoint a committee of cut flower producers to oversee and manage the Kee Kitayama Research Foundation Account and, notwithstanding Section 78004, the funds in that account shall not be returned to the persons from whom collected.
On and after one year after the commission is suspended or terminated pursuant to this article, the secretary may conduct a vote to reconvene the commission consistent with Article 5 (commencing with Section 77970).
CHAPTER 21. California Asparagus Commission [78201. - 78305.]
ARTICLE 1. Declaration and General Provisions [78201. - 78207.]
The production and marketing of asparagus constitutes an important industry of this state which not only provides substantial and necessary revenues for the state and employment for its citizens, but also furnishes food vital to the public.
The maintenance of the asparagus industry of California is necessary to assure the consuming public of a continuous supply of this product and the maintenance of needed levels of income for those engaged in the industry.
The production and marketing of asparagus produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, or by any individual in accordance with this chapter or with regulations adopted under this chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of that Part 2), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of a particular agricultural industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are elected or appointed to the commission, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
Opportunity exists for continued growth and expansion of the industry by creating new markets in major portions of this country. The success of such an expansion program is uniquely dependent upon effective advertising, promotion, and research because the creation of new markets is essentially a matter of educating and informing people of the use, nutritional value, and availability of the commodity. The expansion of the asparagus industry also provides an important source of jobs for many people in this state, a high proportion of whom reside in historically depressed areas of the state, and serves to ensure the preservation of an agrarian society.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of asparagus the opportunity to avail themselves of the benefits of collective action in the broad fields of development, maintenance, and expansion of markets, marketing research, advertising and promotion, and production and processing research necessary to achieve the purposes stated herein.
ARTICLE 2. Definitions [78210. - 78222.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Asparagus” means all types of vegetables grown from the plant family Liliaceae or Lily; Genus, Asparagus officinalis.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Asparagus Commission.
This chapter is applicable to the Counties of Alameda, Alpine, Amador, Calaveras, Contra Costa, Sacramento, San Joaquin, San Mateo, Sutter, Yolo, the City and County of San Francisco, and all other counties north of those counties to the Oregon border; and the Counties of Fresno, Inyo, Kern, Kings, Los Angeles, Madera, Mariposa, Merced, Mono, Monterey, San Benito, San Bernardino, San Luis Obispo, Santa Barbara, Santa Clara, Santa Cruz, Stanislaus, Tuolumne, Tulare, and Ventura.
“Handler” means any person engaged in marketing of asparagus which the person has produced, purchased, or acquired from a producer, or is marketing on behalf of a producer whether as owner, agent, employee, broker, processor, or otherwise.
“Market” or “marketing” means to sell asparagus.
“Market research” means any investigation, development, analysis, or use of information relating to the marketing, sales, or promotion of asparagus in this state and nationally and internationally, including, but not limited to, trade practices, consumer trends, promotion, sales, and advertising.
“Marketing year” means the period beginning January 1 of any year and extending through December 31 of that same year.
“Production research” means any cultural and biological research relating to field production of asparagus.
“Producer” means any person in this state who grows asparagus for market, including landlords who own a percentage of the crop, and who, upon request, provide proof of commodity sale. “Producer” does not include any person who has grown less than five acres of asparagus in the preceding marketing year.
“Processing research” means any research relating to the processing of asparagus.
“Advertising and promotion” means, in addition to its ordinarily accepted meaning, trade promotion and activities for the prevention, modification, or removal of trade barriers which affect the marketing of asparagus.
ARTICLE 3. The California Asparagus Commission [78225. - 78241.]
There is in the state government the California Asparagus Commission. The commission shall be composed as follows:
Twelve producers who shall be elected by producers subject to this chapter as members-at-large.
One public member, who shall be appointed by the secretary from the nominees recommended by the commission.
The secretary and other appropriate individuals, as determined by the commission, shall be nonvoting ex officio members of the commission.
The commission may modify the number of producers who serve on the commission by a two-thirds vote of the members of the commission present at the meeting at which there is a quorum when the action is taken and is concurred in by the secretary, so long as proper notice is provided to all persons subject to this chapter prior to the action.
Producers in counties that are not subject to this chapter may petition the commission to be subject to this chapter. If the petition is approved by a two-thirds vote of the members of the commission, the secretary shall conduct an implementation vote of the producers from those counties in accordance with Article 5 (commencing with Section 78270).
If the secretary certifies a favorable vote, all producers from those counties shall be subject to this chapter.
The secretary may require the commission to correct or cease any activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease these activities or functions or to make corrections required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions, as required by the secretary, has been accomplished by the commission.
Any action of the commission in violation of the written notice is without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions which are the subject of the written notice.
At the same time the written notice is provided to the commission, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and the secretary’s recommendations with respect to any action that will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other appropriate relief.
When the secretary is required to concur in a decision of the commission, the secretary shall concur, refuse to concur, or request additional information from the commission within 15 working days from the date the secretary receives notification of the decision.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Except for the ex officio members of the commission, an alternate member for each producer member shall be elected, and for the public member shall be appointed, in the same manner and for the same term as the member. Except as provided in Section 78237, an alternate member shall, in the absence of the member for whom he or she is an alternate, serve in place of the member and shall exercise all of the rights, privileges, and powers of the member when serving on the commission. If the status of a member changes, thereby making the member ineligible to serve, or in the event of the death, removal, resignation, or disqualification of a member, the alternate member shall act as a member of the commission until a qualified successor is elected or appointed.
Any vacancy on the commission occurring by the failure of any person elected to or serving on the commission as a producer member or alternate member to continue in his or her position due to a change in his or her status, thereby making the person ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled for the unexpired portion of the term by a majority vote of the remaining members of the commission. The appointee shall meet all of the qualifications set forth in this article as required for the member or alternate whose office he or she is to occupy.
Any vacancy on the commission occurring by the failure of the public member or his or her alternate member to continue in his or her position due to a change in his or her status, thereby making the member or alternate ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled for the unexpired portion of the term by the secretary from nominees recommended by the commission. The appointee shall meet all of the qualifications set forth in this article as required for the member or alternate whose office the appointee is to occupy.
Any producer member and his or her alternate member on the commission shall be an individual producer or an employee representing a producer who has a financial interest in producing, or causing to be produced, asparagus for market. Qualifications of producer members and their alternate members shall be maintained during their entire term of office.
The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate member, respectively, on the commission. The public member and his or her alternate member shall not have any financial interest in the asparagus industry.
The term of office of all members and alternate members of the commission, except ex officio members, is three years commencing with the first day of December before the beginning of the marketing year in the year of their election and until qualified successors are elected.
The commission may sue and be sued, and may enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission is a majority of the voting members of the commission. Any alternate member to any producer member may serve in the absence of any other member if that member’s alternate is also absent and if that action is necessary to establish a quorum. Except as provided in Sections 78214, 78231, and 78302, the vote of a majority of the members present at a meeting at which there is a quorum shall constitute the act of the commission.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission.
Members and alternate members of the commission, and members of committees established by the commission, shall not receive any compensation, but notwithstanding Section 11564.5 of the Government Code, shall receive the per diem established by the commission, not to exceed one hundred dollars ($100) per day. Ex officio members who are state officers or employees are not eligible for per diem pursuant to this section. In addition, members and alternate members of the commission, and members of committees established by the commission, shall be reimbursed for actual and necessary travel expenses under the rules of the Department of Human Resources. The per diem and reimbursement for travel expenses shall be paid to those members for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission, as approved by the commission.
All funds received by any person from the assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks which the commission may designate and shall be disbursed by order of the commission through an agent or agents designated by the commission for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission.
No member, alternate member, employee, or agent of the commission is personally liable for the contracts of the commission nor is any such person responsible individually in any way to any producer or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as a principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member, alternate member, employee, or agent of the commission, is responsible individually for any act or omission of any other member, alternate member, employee, or agent of the commission.
Liability is several and not joint, and no member, alternate member, employee, or agent of the commission is liable for the default of any other member, alternate member, employee, or agent of the commission.
ARTICLE 4. Powers and Duties of the Commission [78245. - 78263.]
The powers and duties of the commission include, but are not limited to, all of those specified in this article.
The commission may adopt, amend, and repeal regulations and operating procedures necessary to carry out this chapter, including regulations governing appeals from actions taken by the commission pursuant to any of its regulations or operating procedures.
The commission may administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, the proper or advisable effectuation of this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter.
The commission may retain a management firm or the staff from any board, commission, or agency of the state or federal government to perform the functions prescribed by this section under the control of the commission. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, borrow funds in advance of receipt of assessments, and repay producers for costs incurred during the initial formation of the commission, as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all its dealings that shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all producers, and a copy of the summary shall also be submitted to the department. In addition, the secretary may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters which affect this chapter, to the extent permitted by federal law.
The commission may make, in its name, contracts to receive or render services in formulating and conducting plans and programs and any other contracts or agreements that the commission deems necessary for carrying out this chapter.
The commission may conduct, and contract with others to conduct, any of the following:
Programs for the development, maintenance, and expansion of foreign and domestic markets, including initiating and participating in trade and tariff related hearings and proceedings.
Programs for promotion of asparagus sales, including marketing research and advertising and promotion.
Programs for production and processing research.
Any other programs or actions in furtherance of the production and sale of asparagus.
The commission may accept contributions or matching private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies, for purposes of this chapter.
The commission may publish and distribute, without charge, bulletins and other communications for the dissemination of information to producers.
The commission shall establish an assessment rate to defray the operating costs of the commission.
The commission shall adopt an annual budget according to accepted accounting practices. The secretary shall concur in the adoption of the budget prior to the encumbrance of funds, except for encumbrances necessary to pay the compensation of employees of the commission.
The commission shall annually prepare and submit to the secretary, for his or her concurrence, a statement of contemplated activities authorized pursuant to this chapter.
The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding involving this chapter and except as otherwise provided in subdivision (c) of Section 78270, all lists of producers in their possession.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
ARTICLE 5. Implementation and Voting Procedures [78270. - 78278.]
Within 30 days of the effective date of this chapter, the secretary shall establish a list of producers eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require that handlers submit the names and mailing addresses of all known producers. The secretary also may require that the information provided include the quantity of asparagus produced by each producer or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote conducted pursuant to Section 78271. The request for the information shall be in writing, and the requested information shall be filed within 10 days following receipt of the request.
Any producer whose name does not appear upon the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a producer. The absence of a producer’s name from the list does not exempt the producer from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
Proponents and opponents of the commission may contact producers on the lists in a form and manner prescribed by the secretary if all expenses associated with the contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds, in a referendum vote conducted by the secretary, that at least 40 percent of the total number of producers from the list established by the secretary pursuant to this article have participated and that either of the following has occurred:
Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed a majority of the total quantity of asparagus in the preceding marketing year by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the total quantity of asparagus in the preceding marketing year by all of the producers who voted in the referendum.
The secretary shall use fresh weight in calculating the quantity of asparagus for purposes of the voting in subdivision (a).
The secretary shall establish a period to conduct the referendum that shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures that may be necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period to not more than 60 days.
The failure of a producer to receive a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 78271, the secretary shall certify and give notice of the favorable vote to all producers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in Section 78271, the secretary shall certify and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one or more years after the previous vote has been taken.
Upon certification of the commission, the secretary shall contact all producers by mail, or call meetings of producers, for the purpose of nominating and electing persons to the commission. All producers on the secretary’s list shall be given written notice of any election meetings at least 10 days before the meeting date. To be eligible for election to the commission, producer nominees shall present to the secretary a nomination petition with the signatures of at least three eligible producers.
Subsequent to the first election of members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures that are adopted by the commission with the concurrence of the secretary.
Subsequent to the initial implementation referendum vote and the first election of commissioners, the commission shall establish procedures for the purpose of providing persons subject to this chapter with access to producers on the commission’s list of producers for purposes related to an election or referendum or an act or determination of the commission. Access to producers shall not include actual release or disclosure of the commission’s confidential list of producers.
Prior to the secretary holding the referendum pursuant to Section 78271, the proponents of the commission shall deposit with the secretary the amount that the secretary determines necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum.
Any funds not used in carrying out Section 78271 shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out Section 78271 and for any legal expenses and other costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [78285. - 78292.]
The commission shall establish the assessment for the following marketing year not later than January 1 of each year, or as soon thereafter as possible. The commission shall adopt bylaws which establish the date for payment of the assessment.
The assessment shall not exceed one cent ($0.01) per pound of all sales of asparagus by producers in the marketing year.
The handler shall deduct the producer assessment from amounts paid by him or her to the producer and shall be a trustee of these funds until they are paid to the commission at the time and in the manner prescribed by the commission.
A fee greater than the amount specified in subdivision (b) shall not be charged unless approved by the vote specified in Section 78271.
This chapter does not apply to any person who grows asparagus only for his or her own home use or who is not a producer. However, any such person who markets asparagus shall file an affidavit with the commission establishing that the person grows less than five acres of asparagus. The commission shall then determine whether the affidavit should be approved.
Every handler shall keep a complete and accurate record of all asparagus handled with the name of the producer whose asparagus was handled. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be retained by the handler for two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
The commission may specify the conditions under which proprietary information obtained from producers may be disclosed. Otherwise, all proprietary information obtained by the commission or the secretary from producers is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter.
Information on volume shipments, product value, and any other related information that is required for reports to governmental agencies, financial reports to the commission or aggregate sales and inventory information, and any other information that the commission requires that gives only totals, but excludes individual producer information, may be disclosed by the commission.
Any assessment which is levied pursuant to this chapter is a personal debt of every producer so assessed.
Every handler shall be personally liable for the payment of collected assessments to the commission. A failure by a handler to collect the assessment shall not exempt the handler from liability and shall not relieve any person subject to this chapter from the obligation to pay the assessment.
Any producer or handler who fails to file a return or pay any assessment within the time required by the commission shall pay the commission a penalty of 10 percent of the amount of the assessment determined to be due and, in addition, pay 112 percent interest per month on the unpaid balance.
If the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments to which a corporate handler may be subject pursuant to this chapter shall include identical liability upon each individual director or officer of the corporation.
ARTICLE 7. Actions and Penalties [78295. - 78298.]
It is a misdemeanor for any person to do any of the following:
Refuse to render a report, statement, or record required by the commission.
Furnish a false report, statement, or record required by the commission.
When engaged in the handling of asparagus, to fail or refuse to furnish the commission, or its duly authorized agents, information concerning the names and addresses of persons from whom the asparagus have been received and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall adopt procedures to grant individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for obtaining injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any regulation of the commission, including, but not limited to, the nonpayment of assessments or the intentional submission of false information to the commission. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of that part, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business involving asparagus until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it may receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
The suspension or termination of this chapter shall not affect or waive any right, duty, obligation, or liability which has arisen or which may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [78300. - 78305.]
From January 1, 1995, to December 30, 1995, inclusive, the commission shall conduct a referendum among the producers to determine whether the operations of this chapter shall be approved and continued in effect. There is a favorable vote under this chapter if the secretary determines from the referendum that a majority of the eligible producers voting in the referendum voted in favor of continuing the operations of this chapter. If the secretary finds that a favorable vote has been given, the secretary shall so certify and this chapter shall remain effective. If the secretary finds that a favorable vote has not been given, the secretary shall so certify and declare the operations of this chapter suspended on December 31, 1995. Thereupon, operation of the commission shall be concluded and funds distributed in the manner provided in Section 78304. No bond or security shall be required for this referendum.
Following a favorable referendum conducted prior to December 31, 1995, the commission shall conduct a referendum every fifth year thereafter, unless a referendum is conducted as the result of a petition filed pursuant to this article. In that case, the referendum shall be held pursuant to procedures provided in Section 78300 every fifth year following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing year.
The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with the secretary requesting a suspension signed by not less than 20 percent of the producers by number who produced not less than 20 percent of the volume of asparagus in the immediately preceding marketing year, hold a referendum among the producers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows, by a preponderance of evidence, that the operation of this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period that shall not be less than 10 days nor more than 60 days in duration. The secretary may prescribe additional procedures necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of this chapter if the secretary finds that at least 40 percent of the total number of producers from the list established by the secretary have participated in the referendum and either one of the following has occurred:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed a majority of the total quantity of asparagus in the preceding marketing year by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting marketed 65 percent or more of the total quantity of asparagus in the preceding marketing year by all of the producers who voted in the referendum.
The secretary shall terminate the commission at the end of the then current marketing year if the secretary finds that the termination of the commission is requested in writing, within a 90-day period, by at least 51 percent of the eligible producers that produce at least 51 percent of the total quantity of asparagus.
The person or persons originating the request shall file a written notice with the secretary in a manner that establishes the date the request is initiated. Any person may withdraw his or her name from the petition requesting the termination prior to the time the request is presented to the secretary.
The signatures on the petition requesting the termination need not all be appended to one sheet of paper. Each person signing the petition shall specify his or her place of business in a manner that will enable the location to be readily ascertained.
The petition shall bear a copy of the notice of intention to terminate the commission. Signatures shall be secured within the time limit specified in this section.
After the effective date of suspension, the operation of the commission shall be concluded and any and all funds remaining held by the commission and not required to defray the expenses of concluding and terminating operations of the commission shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing year. However, if the commission finds that the amounts so returnable are so small as to make impractical the computation and remitting of the pro rata refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate program conducted by the University of California or the California State University, another state agency, or a federal agency which deals with the purposes of this chapter. If no such program exists, the funds shall be paid into the State Treasury as unclaimed trust funds.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all producers whose names and addresses are on file with the commission and to the appropriate policy committees in both the Assembly and Senate.
CHAPTER 23. California Seafood Council [78401. - 78588.]
ARTICLE 1. Short Title and Definitions [78401. - 78415.]
This chapter shall be known and may be cited as the “California Seafood Marketing, Research, and Development Act.”
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Council” means the California Seafood Council.
“Exporter” means any person who is engaged, or who works for a person who is engaged, in the export to a foreign nation or nations of seafood landed in California.
“Fiscal year” means from April 1 of a year to March 31, inclusive, of the next succeeding year.
“Fisherman” means any person licensed to commercially harvest fish or shellfish pursuant to Sections 7850 to 7852, inclusive, of the Fish and Game Code who lands any species of fish or shellfish for commercial purposes included in, and not excepted from, a fishery, as defined in Section 78407, or who is the registered owner or lessee of a vessel that is used to land any species of fish or shellfish included in, and not excepted from, a fishery, as defined in Section 78407, if the registered owner or lessee has a financial interest in the fish or shellfish and pays or has assessments paid on his or her behalf.
“Fishery” means:
Each species or group of fish or shellfish harvested in ocean waters landed in California that are treated as a unit for purposes of research, development, promotion, or marketing, except abalone, anchovy, dungeness crab, herring and herring roe, pink shrimp, salmon, sea urchins, all fish or shellfish collected for scientific experiment or aquaria, all fish classified as groundfish taken by use of trawl nets, and all tuna landed for canning in this state or for transshipment for canning in other states or nations.
Any economic activity involving the harvesting, receiving, processing, manufacturing, or distributing of fish or shellfish described in, and not excepted by, subdivision (a) and products therefrom.
Each species or group of fish or shellfish excepted by subdivision (a) or any other species of fish or shellfish landed in California after the addition of the fishery for that species of fish or shellfish pursuant to Section 78582.
“Handler” means any of the following:
A processor engaged in the California fishery.
A receiver engaged in the California fishery.
A wholesaler engaged in the California fishery.
An exporter engaged in the California fishery.
A person is licensed or who works for any person who is licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code and engaged in the California commercial fisheries.
“Marketing association” means any commercial fishermen’s organization established on either a local, county, or statewide level, incorporated in this state, to enable fishermen to collectively negotiate and issue orders and agreements with receivers for the purchase of their catches, or to otherwise engage in activities permitted of agricultural cooperatives, and whose members are involved in the California commercial fisheries.
“Person” has the same meaning as that term is defined by Section 38.
“Processor” means any person who is licensed or who works for any person who is licensed pursuant to Section 8034 of the Fish and Game Code and engaged in the California commercial fisheries.
“Receiver” means any person who is licensed or who works for a person who is licensed pursuant to Section 8033 of the Fish and Game Code and engaged in the California commercial fisheries.
“Wholesaler” means any person who is licensed or who works for a person who is licensed pursuant to Section 8035 of the Fish and Game Code and engaged in the California commercial fisheries.
“Ex-vessel price” means the price paid to fishermen for fish or shellfish by receivers at the point of first sale.
“Sponsor” means a person or company that is not a member of the council but who supports and wishes to contribute to programs established by the director on behalf of the council for a specified voluntary contribution and benefit, as authorized by Section 78563.
ARTICLE 2. General Provisions [78425. - 78430.]
The Legislature finds and declares that this chapter is enacted in the exercise of the police power of this state for the purposes of protecting and furthering the public health and welfare.
The Legislature further finds and declares that the fisheries of this state are affected with a public interest, in that, among other things:
The harvesting, processing, manufacturing, and distributing of fishery products constitute a paramount industry of this state, which not only provides substantial and required revenues for the state and its political subdivisions and employment and a means of livelihood for many residents, but which also furnishes essential foods that are vital to the public health and welfare.
It is through commercial fishermen and receivers that more than 90 percent of this state’s citizens have access to these healthful foods which are resources that belong to all of the residents of the state and country.
The stabilization, maintenance, and expansion of the California commercial fisheries, and of the state, nationwide, and foreign markets for its products are necessary to ensure the consuming public access to, and an adequate supply of foods which are indispensable in, a proper human diet, to protect, for the state and its political subdivisions, a necessary source of tax revenue, to provide and maintain an adequate standard of living for a segment of the population of this state, to maintain proper wage scales for those engaged in the California commercial fisheries, and to maintain existing employment.
The essentiality of fish, low in fat and calories, to proper human nutrition and to the maintenance of a high level of public health is such as to require that the public be made thoroughly aware thereof, and be protected against misrepresentation and deception, through the dissemination of accurate and scientific information relative to the healthful qualities of fishery and seafood products, their various classifications and the food values and industrial and medicinal uses thereof, the methods, care, and precautions necessary to their proper harvesting, processing, manufacturing, and distributing, and the necessary costs and expenses thereof, and the necessity and desirability on the part of the public of using and consuming fishery products of the highest standards of quality.
The Legislature declares that the purposes of this chapter are as follows:
To enable the seafood industry, with the aid of the state, to educate the public on the nutritional and economic value and importance of California seafood and the fishing industry and to develop, maintain, and expand the state, nationwide, and foreign markets for seafood products that are harvested, processed, manufactured, sold, or distributed in this state.
In aid, but not in limitation, of the purposes in subdivision (a), to authorize and enable the secretary to formulate and effectuate, directly or in cooperation with other agencies, organizations, and other instrumentalities , sales stimulation and consumer or other educational and research programs, designed to inform the public about California seafood and to increase the use and consumption of seafood and seafood products landed in California.
To promote the continued viability of fisheries and thereby promote continued access to California’s seafood resources.
To present facts to and negotiate with state, federal, and other agencies on matters that affect the availability and marketing of California seafood.
To provide funds for the administration and enforcement of this chapter by the collection of mandatory fees in the manner prescribed in this chapter.
This chapter shall be liberally construed.
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, that invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
A violation of this chapter is a misdemeanor.
ARTICLE 3. Administration [78450. - 78452.]
The director shall administer and enforce this chapter, and may exercise any of the administrative powers which are conferred by Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code upon a head of a department.
In order to effectuate the declared purposes of this chapter, the director may contract to carry out the declared intent and purposes of this chapter.
Upon recommendation by the council, the director may adopt, consistent with this chapter, any regulations relating to the administration and enforcement of this chapter necessary to carry out the purposes and attain the objectives of this chapter. However, the director shall not engage in any seafood education, research, or promotion activity without the approval of a majority of the voting members of the council.
Upon the adoption of any regulations under this chapter, a copy of the regulations shall be posted on a bulletin board which shall be maintained by the director in his or her office. The director shall mail a copy of the notice of the adoption of the regulations to commercial fishermen and every receiver that is directly affected by the regulations whose name and address is on file in the office of the director and to every person who files in the office of the director a written request for that notice. No regulation shall become effective until five days after the date of that posting and mailing.
ARTICLE 4. California Seafood Council [78475. - 78496.]
There is in the State of California the California Seafood Council. The council shall be composed of not less than 11 voting members and their alternates, and six nonvoting members. The number of voting members shall be adjusted in accordance with subdivision (e) of Section 78476. The council may include nonvoting, ex officio members representing interests allied to California’s fishing industry upon recommendation of the executive committee of the council and approval by the secretary.
The voting members of the council shall be appointed by the secretary, giving due consideration to proper geographic distribution. The voting members shall include:
Four receivers or processors or their representatives, and their alternates.
Five fishermen who are licensed commercial fishing vessel owners, commercial fishermen or their representatives, and their alternates. The fishermen appointed pursuant to this subdivision shall each represent the users of one of the following types of fishing gear:
Gill and trammel nets.
Hook and line.
Trawl nets.
Round-haul nets.
Traps.
One representative of a handler who is an exporter or a wholesaler, and an alternate.
One public member, and an alternate.
One representative of fishermen and receivers, or his or her representative, and his or her alternate, for each fishery described in subdivision (c) of Section 78407, commencing with the favorable vote in a referendum relating to that fishery. If the species to be included is taken by one of the gear types specified in subdivision (b), such as “groundfish trawl nets,” the species and gear type shall be added to the list of fishing gear types in subdivision (b) by regulation adopted by the secretary. If the gear type is not specifically listed in subdivision (b), it shall be included in the list by regulation adopted by the secretary upon a favorable vote in a referendum, a request from the new gear group, and a recommendation by the council.
If, pursuant to Section 78577, the fishermen vote in favor of the council and the receivers do not, the council shall be implemented with eight members and the number of receiver or processor representatives appointed pursuant to subdivision (a) of Section 78476 shall be reduced to one, and the alternate.
The fishermen and their alternates shall be selected from lists of nominees submitted by marketing associations and any organization deemed by the director to represent the majority of organized California commercial fishermen harvesting species of fish and shellfish included under this chapter and from nominations by individual fishermen.
The receivers, processors, wholesalers, or exporters and their alternates shall be selected from lists of nominees submitted by an organization deemed by the director to represent the majority of those organized groups in the state, and from individual receivers, processors, wholesalers, and exporters.
The public member and alternate shall be selected by the director from a list submitted by the receiver, handler, and fishermen members of the council.
The voting members of the council shall each be appointed to a three-year term, except that in the first year of the council, four members shall be appointed to one-year terms; four members shall be appointed to two-year terms; and three shall be appointed to three-year terms.
If, pursuant to Section 78577, either the fishermen or the receivers, but not both, vote in favor of the council, the voting members of the council shall each be appointed to a three-year term, except in the first year of the council when three members shall be appointed to one-year terms, three members shall be appointed to two-year terms, and the remaining members shall be appointed to three-year terms.
The term of office of a member of the council shall begin on April 1 and expire on March 31.
Any vacancy in the membership of the council which occurs during the unexpired term shall be filled by the director for the unexpired term from the eligible nominees. No council member or alternate shall serve more than two consecutive three-year terms. Service as an alternate does not disqualify a person to then serve two additional terms as a member, and a member who was appointed for a one-year or a two-year term may serve two additional three-year terms.
The director may remove any member of the council or alternate for cause, and, upon that removal, there is a vacancy which shall be filled in the manner provided in Section 78482.
The director shall give notice, not later than January 31 of each year, of the vacancies that will exist upon the expiration of terms on March 31, in writing, to all marketing associations and organizations deemed by the director to represent the majority of organized fishermen, or receivers, processors, wholesalers, and exporters, and shall issue any press releases and public statements requesting nominations that the director deems appropriate.
The notice requesting nominations shall indicate that nominations shall be mailed to the director at his or her office in Sacramento and that the director will consider nominations received by mail postmarked no later than March 1.
Each nomination shall set forth all of the following information:
The name and address of the nominee.
Whether the nominee is being nominated as a member or alternate member.
The type of category for which the nominee is being nominated.
The list of qualifications and supporters, if any, for the nominee.
The name and address of the nominating association, organization, or individual.
One nonvoting member of the council may be appointed by the secretary to represent each of the following entities:
The department.
The Department of Fish and Game.
The California Sea Grant Program.
The State Department of Health Services.
There is no fixed term for nonvoting members of the council. The agencies listed in Section 78486 may select an alternate for their representative.
A majority of the voting members of the council shall constitute a quorum for the transaction of all business, including the election of officers.
The council shall select annually from its voting number, to serve at its pleasure, a president, vice president, and treasurer. The immediate past president shall serve as the president emeritus of the council.
The president, vice president, treasurer, and president emeritus, together with three other voting members, selected annually by the council, shall constitute the executive committee of the council. The executive committee may exercise any powers of the council that the council delegates to the executive committee.
The council shall hold at least two regular meetings in each year at times and places that are fixed by the council. The council may meet in special meetings at any time and place at the call of the president or upon the written request of five members of the council. The executive committee may meet at any time and place at the call of the president or on call of a majority of the members of the executive committee.
The voting members of the council shall receive forty dollars ($40) per day per diem for each day spent in actual attendance at the meetings or on the business of the council and shall be reimbursed for necessary traveling and other expenses incurred in the performance of their official duties, as approved by the secretary. Nonvoting members shall be reimbursed for necessary traveling and other expenses, as approved by the secretary, at the same rate as voting members if the agency they represent does not reimburse them for those expenses. Alternates shall be reimbursed for traveling and other expenses, as approved by the secretary, and shall receive per diem at the same rate as voting members for meetings which they attend. Any member may refuse to accept per diem or expenses, or any portion thereof, to which he or she is entitled.
No member of the council, except a member of the executive committee, shall receive per diem for more than seven days per month, except the chairperson, who may receive per diem for not more than 10 days per month.
The director may require any employee or agent of the council to give a fidelity bond, executed by a surety company which is authorized to do business in this state, in favor of the director, in the sum, and containing any terms and conditions, that the director may prescribe. The cost of the fidelity bonds of employees or agents of the council shall be paid from the funds which are collected pursuant to this chapter.
No member or employee of the council shall be held responsible individually to any person for liability on any contract or agreement of the council. All salaries, expenses, costs, obligations, and liabilities which arise out of the administration and enforcement of this chapter are payable only from funds which are collected pursuant to this chapter.
An alternate member of the council shall sit as a voting member of the council if the member for whom he or she is an alternate does not attend any meeting of the council. When so serving, the alternate member has all of the powers, duties, liabilities, and immunities of the member in whose place he or she is serving, except that the alternate to the chair or vice chair shall not perform the functions of those offices.
The Legislature finds and declares that fishermen, receivers, processors, wholesalers, or exporters appointed to the council pursuant to this article are intended to represent and further the interest of the California commercial fisheries industry, and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds and declares that, with respect to persons who are appointed to the council, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 5. Powers and Duties [78500. - 78504.]
The duties of the council shall be advisory, except as to those duties that may be delegated to it by the secretary or as otherwise designated in this chapter. The council may, subject to the approval of the secretary, exercise any of the following powers that may be delegated to the council by the secretary:
To recommend to the secretary regulations that relate to the administration and enforcement of this chapter.
To investigate all matters that affect the administration of this chapter, and to report violations of this chapter to the secretary.
To employ and, at its pleasure, discharge, a manager and any other employees it deems necessary, and to prescribe their duties and powers and fix their compensation.
To contract for the services of any person.
To establish offices and incur expenses incidental thereto.
To make contracts and other agreements to research, develop, market, and promote the sale of seafood and seafood products from fisheries, as defined in Section 78407, and landed in California, on either a local, state, national, or international basis.
To cooperate with any other local, state, or national commission, organization, or agency, whether voluntary or created by state or federal law, which is engaged in work or activities similar to the work and activities of the council, and to recommend to the secretary the making of contracts and agreements with those organizations or agencies for carrying on joint programs of education, communication, research, publicity, and advertising.
To recommend to the secretary the making of contracts and agreements with other councils, commodity commissions, or producer organizations for joint programs of publicity and advertising where those products are compatible with the promotion of seafood and seafood products from fisheries, as defined in Section 78407, and landed in California.
In matters of research, to cooperate with organizations of recognized professional standing that are adequately equipped with facilities for the research that is contemplated.
To recommend or contract for scientific research to effectuate the declared purposes of this chapter.
To recommend or contract for the development of voluntary product quality standards.
To promote accurate labeling of California seafood as a means to educate consumers and the public about the benefits of California seafood.
To receive, invest, and disburse funds pursuant to Article 7 (commencing with Section 78550).
To allocate funds to agencies not specifically or solely engaged in carrying on research or promotion for seafood, if the council and the secretary are satisfied that those allocations will be beneficial to the California commercial fisheries and will tend to effectuate the declared purposes of this chapter.
To establish and regulate the permissive use of an official brand, service mark, trade name, label, or other distinctive designation of grade, quality, condition, or other promotional or educational description. Permissive use of any such official designation shall be limited to producers, handlers, or other persons designated by the council who are in compliance with all regulations or rules established by the council for use of the designation. Any designation established pursuant to this section shall not be construed as a private brand or trade name.
The council shall keep books, records, and accounts of all of its transactions, dealings, contracts, agreements, funds, and expenditures that it deems necessary. The books, records, and accounts shall at all times be open to inspection and audit by the director.
A member, alternate, agent, or employee of the council shall not do any of the following:
Appear before any legislative committee of the state or federal government as a representative of the council unless requested to do so by that committee.
Lobby in any manner as a representative of the council.
Funds which are collected pursuant to this chapter shall not be used for political contributions.
The council shall prepare, annually, summarized statements of the activities in which it has been engaged in the previous annual period, and of the activities in which it proposes to engage in the ensuing annual period. The statements shall be made available to all marketing associations, organizations of fishermen and receivers, processors, wholesalers, and exporters, and individuals that request them in writing.
ARTICLE 6. Education, Research, and Public Information Programs [78525. - 78527.]
The secretary shall conduct, or may cause the council to conduct, programs of education, research, or public information, that are designed to accomplish any of the following purposes, among others:
Publicize the positive contribution of California’s fishing industry and its people as providers of fresh, wholesome seafood products.
Educate the public to the value of California seafood as high quality, nutritious, and desirable.
Ensure the long-term availability of California-caught commercial seafood products by working with public and private organizations to preserve, protect, and enhance aquatic habitat and species.
Enhance the quality of seafood products from fishermen to consumers.
Support research and development to achieve the purposes of this chapter.
No program or activity which is conducted or sponsored pursuant to this chapter shall make false or unwarranted claims, or disparage the quality, value, use, or sale of any commodity authorized by law to be marketed in this state. No program or activity shall be conducted with reference to a private brand or trade name which refers to seafood and seafood products from the California commercial fisheries.
The council shall not expend council funds for advertising brand name seafood products as determined by the council, except for promotions carried out on behalf of the council in markets outside of the State of California. The council may expend council funds to conduct cost-sharing advertising with nonbrand name seafood products from the California commercial fisheries.
ARTICLE 7. Financial Provisions [78550. - 78564.]
In order to carry out the programs and administer the activities that are conducted pursuant to this chapter, except as specified in Section 78557, a fee shall be established by the director and, thereafter, shall be recommended to the director by the council, based on an amount which is four-tenths of 1 percent of the ex-vessel price per pound paid for each pound of fish or shellfish specified in subdivision (a) of Section 78407 sold to a receiver, or sold by a fisherman directly to the public pursuant to Section 8033.5 of the Fish and Game Code. The fee shall be paid by the receiver or the fisherman, or both, and remitted to the director as specified in Section 78552. The amount of the fee for each species shall be established annually by the council for recommendation to the director, calculated to the nearest 110,000 of one cent ($0.0001) based on the formulation in this section. Individual fees shall be established for species identified in subdivision (a) of Section 78407. The council, with assistance from the Department of Fish and Game, may determine the fee structure for individual species and may average or consolidate fees for similar species to simplify landing fee reporting and accounting requirements. The amount of the fee shall be based on the landed weight of the fish or shellfish, as reported on the fish landing receipt made under Section 8043 of the Fish and Game Code. A fisherman selling to the public pursuant to Section 8033.5 of the Fish and Game Code shall remit the fee directly to the director as specified in Section 78552.
To facilitate collection of fees from receivers or fishermen who handle a small volume of fish and shellfish specified in subdivision (a) of Section 78407, receivers or fishermen whose estimated monthly fee payments do not exceed ten dollars ($10) may file reports and submit fees on a quarterly basis. Payments are delinquent if not submitted within 60 days following the end of the quarter in which they are due.
The fisherman and the receiver shall each pay one-half of the fee established pursuant to Section 78550 for each pound of fish landed. If the fishermen vote, pursuant to Article 8 (commencing with Section 78575), not to participate in the council, a fisherman is not required to pay any fees pursuant to this chapter. If the receivers vote, pursuant to Article 8 (commencing with Section 78575), not to participate in the council, a receiver is not required to pay any fees pursuant to this chapter. If either fishermen or receivers, but not both, vote in favor of the council, the fee charged the group voting in favor of the council shall not exceed one-half of the fee established pursuant to Section 78550.
The fees, whether from fishermen or receivers, or both, that are collected pursuant to this article shall be forwarded by the receivers, except as provided under Section 78552.5, directly to the council on behalf of the secretary. The administrative office of the council shall supply forms necessary for the remittance of the fees. The secretary may consult with the Director of Fish and Wildlife and enter into agreements with the Department of Fish and Wildlife, when he or she deems it necessary and reasonable, to assist in the administration of this article and to ensure compliance with this article. The secretary and the Director of Fish and Wildlife may enter into an interagency agreement on behalf of the council to provide names and addresses of commercial fish businesses selected annually by the Department of Fish and Wildlife for fish landing fee examinations. The listing of names and addresses is a confidential document.
Notwithstanding any other provision of this article, in any calendar year in which a fisherman who is selling to the public lands, or a receiver receives, less than 10,000 pounds in the aggregate of fish or shellfish in all fisheries combined or for which the annual fees that would otherwise be due by that fisherman or receiver to the council for those fish or shellfish totals less than twenty-five dollars ($25), the fisherman selling to the public or the receiver shall not pay any fees pursuant to this chapter.
In any calendar year in which a fisherman who is selling to the public lands, or a receiver receives, 10,000 pounds or more in the aggregate of fish or shellfish in all fisheries combined, or for which the annual fees that are due by that fisherman or receiver to the council for those fish or shellfish totals twenty-five dollars ($25) or more, the fisherman selling to the public or the receiver shall remit the fees on or before February 28 of the year following the landing or receipt. Any fees that are not received on or before February 28 of the year following the landing or receipt of fish or shellfish for which the fees are due is delinquent and subject to collection pursuant to Section 78554.
If, in any calendar year, a fisherman lands less than 10,000 pounds in the aggregate of fish or shellfish in all fisheries combined, and has paid fees to the council, the fisherman may apply for a refund of the amount paid, not to exceed a total of twenty-five dollars ($25). An application for refund shall be submitted on a form supplied by the council and shall include documentation in the form of landing receipts submitted to the Department of Fish and Game pursuant to Section 8046 of the Fish and Game Code for all species landed and proof of fees paid. Applications for refunds shall be received at the council office on or before March 31 of the year following the landing or receipt of fish or shellfish for which the fees were paid.
Each receiver who is required by this chapter to pay a fee or collect a fee from fishermen shall maintain a complete and accurate record of all transactions subject to the fee. These records shall contain any information required by the director relating to the collection of fees, shall be preserved for a period of three years, and shall be available for review upon demand by the director or the director’s duly authorized agent.
Any information obtained by the director or the director’s duly authorized agent from inspection or audit of records shall be confidential and shall not be disclosed except when required in a judicial proceeding.
The collection of funds from anyone who does not pay or remit fees due and payable shall be conducted as follows:
Pursuant to Section 8053 of the Fish and Game Code.
When the secretary makes a determination that fees due pursuant to this chapter are deficient, the secretary may determine the amount of the deficiency, including any applicable penalty. Section 59234.5 shall apply to deficiency determinations made pursuant to this section.
This subdivision is supplemental to any other provisions for collection and imposition of fees and penalties provided by this chapter. In lieu of proceeding pursuant to this section, the secretary may file a complaint for collection of unpaid fees as provided by law.
A person who violates any provision of this chapter is guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000), by imprisonment in the county jail for not less than 10 days or more than six months, or by both that fine and imprisonment. Each violation during any day is a separate offense.
A person who violates any provision of this chapter is liable civilly in an amount of not more than two thousand five hundred dollars ($2,500) for each violation. Each violation during any day is a separate offense.
Every claim or refund for credit for overpayment of fees shall be in writing and shall state the specific ground upon which the claim is based.
Sections 8058 to 8070, inclusive, of the Fish and Game Code apply to claims for overpayment of fees to the secretary. For purposes of this section, “department,” as used in those sections, means the Department of Food and Agriculture, and “landing fee” means the fees imposed pursuant to this article.
One year after the establishment of the council, the council may recommend to the secretary an increase over and above four-tenths of 1 percent of the price per pound paid to the fisherman for each pound of fish or shellfish specified in subdivision (a) of Section 78407 for the council to carry out its duties under this chapter. The council shall consider the budget for the council, funding for activities conducted pursuant to Article 6 (commencing with Section 78525), as well as the market prices of seafood landed in California, landing fees imposed by the Department of Fish and Wildlife, and any other relevant factor affecting the economics of the fisheries. The council shall, in making any determination to increase fees, consult with fishermen and receivers and, if the recommended increase would exceed eight-tenths of 1 percent of the market price per pound paid to the fisherman for each pound of fish or shellfish sold, conduct a ballot poll of the fishermen and receivers on the secretary’s list established pursuant to Article 8 (commencing with Section 78575). The secretary may not increase any fee without the approval of two-thirds the voting members of the council.
All money that is collected by the council pursuant to this chapter shall be deposited in any bank, or other depository that is approved by the Director of Finance, allocated to the purposes of this chapter only, and disbursed by the council, upon approval of the secretary, only for the necessary expenses that are incurred by the council and the secretary in carrying out the purposes and provisions of this chapter, including expenses generated by the auditing requirement contained in this section. Money that is so collected shall be deposited and disbursed in conformity with appropriate auditing regulations adopted by the secretary. The expenditure of the money is exempt from Sections 925.6 and 16304 of the Government Code.
All expenditures by the council and the secretary shall be audited at least once every two years by one of the following means:
By contract with a certified public accountant.
By contract with a public accountant holding a valid permit issued by the California Board of Accountancy.
By contract with a public accounting firm.
By agreement with the Department of Finance.
A copy of the audit shall be delivered by the auditor to the council within 30 days after completion of the audit. Upon receipt, the council shall deliver a copy of the audit to the Governor, the secretary, the Controller, and to any member of the public requesting a copy.
Money that is deposited pursuant to Section 78558 may be invested and reinvested by the council in any of the securities described in Article 1 (commencing with Section 16430) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code.
The director, after consultation with the council, shall adopt an annual budget which sets forth the proposed expenditures which the director deems necessary for the performance by him or her and by the department of the duties which are imposed upon the director and the department by this chapter. The director shall also prepare and submit to the council an annual statement of the director’s expenditures pursuant to this chapter.
The council may allocate a percentage of the contribution from one or a series of species and gear types to conduct species and gear specific programs. In developing specific programs, the council may form advisory committees comprised of harvesters and processors whose primary income is derived from the species considered for specific programs. The funds expended for any program directly benefiting a specific gear type or species of fish or shellfish shall not exceed that proportion of funds expended for general programs benefiting all the species and gear types under this chapter during each five-year term of the council. Proportional funding of species specific programs shall not be required in the annual budget for the year in which the program is first adopted, but proportional funding shall be required in the budget for each subsequent year that each such program is included in the annual budget.
To the extent that programs for specific species of fish or shellfish are included in the budget, as opposed to programs to benefit generally all the species covered by this chapter, there shall be reflected in that same year’s budget, or in budgets prepared for the following years, programs for other species of fish and shellfish covered under this chapter. The funds expended pursuant to the council’s budget for any program for a specific species of fish and shellfish shall be in the same proportion, based on the fees collected from that species of fish or shellfish, as that expended for each of the other species of fish and shellfish covered under this chapter. Proportional funding of species-specific programs are not required in the annual budget for the year in which the program is first adopted, but proportional funding shall be required in the budget for each subsequent year that each such program is included in the annual budget.
The secretary may accept contributions from any source or may receive grants or contracts for funds pursuant to subdivision (b) of Section 35062 of the Public Resources Code to advance the purposes of this chapter. If requested by the donor, the contributions shall be segregated and separately maintained for the use of the council. The secretary may also establish categories of voluntary contributions paid by sponsors, as defined by Section 78415. Categories of voluntary contributions, suggested voluntary contributions, and benefits may be recommended to the secretary by the council.
The council may develop guidelines for the establishment and operation of a “credit-back” program for receivers and fishermen, which authorizes the reimbursement of a percentage of individual contributions to the council, not to exceed 50 percent, for specified individual expenditures benefiting the fishing industry. Individual expenditures eligible for reimbursement may include, but are not necessarily limited to, promotion, research and development, and advertising. The council shall appoint a review committee from its membership and from the fishing industry to review and approve applications for the credit. Any guidelines that require the assistance of, or impact the operation of, the Department of Fish and Game are subject to Section 78552.
Upon submittal of a statement of completion of a credit-back program, and its acceptance by the review committee, the review committee may direct the council to reimburse a percentage of individual contributions, not to exceed 50 percent, at the end of the fiscal year for which the credit-back application and expenditure were made.
ARTICLE 8. Implementation, Voting Procedure, and Termination [78575. - 78588.]
On or before February 1, 1991, the director shall establish a list of receivers and fishermen eligible to vote on the implementation of this chapter. In establishing the list, the director may request, in writing, the assistance of the Director of Fish and Game and associations representing fishermen or receivers in gathering the names of all fishermen and receivers who sold or received specified seafood species landed the previous season. The list shall be filed within 30 days following receipt of the written notice from the director. All information on the volume of landings shall be kept confidential.
Any fisherman or receiver whose name does not appear on the director’s list of receivers may have his or her name included on the list by filing with the director a signed statement, identifying himself or herself as a fisherman or receiver and furnishing evidence of having sold or received landings the previous year through the submission of receipts prepared under Section 8043 of the Fish and Game Code. The failure to include a fisherman’s or a receiver’s name on the list does not exempt a fisherman or a receiver from paying assessments under this chapter.
This chapter, except as necessary to conduct a referendum vote under this article, shall not apply to a fishery defined in subdivision (c) of Section 78407 until the secretary conducts and finds in the referendum that either:
At least 40 percent or more of the total number of fishermen from the list established by the secretary pursuant to Section 78582 have participated by voting in the referendum, and the secretary finds either of the following:
Sixty-five percent or more of the fishermen who voted in the referendum, who landed in California 51 percent or more of the species in the fishery defined in subdivision (c) of Section 78407 that is the subject of the referendum in the previous year, voted in favor of implementing this chapter for that fishery.
Fifty-one percent of the fishermen who voted in the referendum, who landed in California 65 percent or more of the species in the fishery defined in subdivision (c) of Section 78407 that is the subject of the referendum in the previous year, voted in favor of implementing this chapter for that fishery.
Forty percent or more of the total number of receivers from the list established by the secretary pursuant to Section 78582 have participated by voting in the referendum, and the secretary finds either of the following:
Sixty-five percent or more of the receivers, who received 51 percent or more of the species in the fishery defined in subdivision (c) of Section 78407 that is the subject of the referendum landed in California in the previous year, voted in favor of implementing this chapter for that species.
Fifty-one percent or more of the receivers, who received 65 percent or more of the fish of the species in the fishery defined in subdivision (c) of Section 78407 that is the subject of the referendum landed in California in the previous year, voted in favor of implementing this chapter for that species.
If both lists of fishermen and receivers vote in favor of the implementation of this chapter, the secretary shall add, by regulation, the fishery to the fisheries subject to this chapter, and both fishermen and receivers shall be subject to assessment pursuant to this article. If only fishermen or receivers, but not both, vote in favor of implementation of this chapter, the secretary shall add, by regulation, the fishery to the fisheries subject to this chapter, however, only the group voting in favor of that implementation shall be subject to the fees imposed pursuant to Sections 78550 to 78557, inclusive.
The secretary shall establish a period in which to conduct the referendum which shall not be less than 30 days or more than 60 days in duration, and may prescribe additional procedures as necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend that period. However, the total referendum period may not exceed 60 days.
Unless funds are otherwise provided by the Secretary for Environmental Protection, before the referendum vote is conducted by the secretary, the proponents of the council shall deposit with the secretary the amount that the secretary determines is necessary to defray the expenses of preparing the necessary lists and information and conducting the referendum vote.
Any funds not used in carrying out this article shall be returned to the proponents of the council who deposited the funds with the secretary.
Upon the establishment of the council, the council may reimburse the proponents of the council for any funds deposited by the proponents with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in establishing the council.
The nonreceipt of a ballot by any fisherman or receiver shall not invalidate a referendum.
If the director finds that a favorable vote has been given, the director shall certify and give notice of the favorable vote to all receivers whose names and addresses are on file with the director.
If the director finds that a favorable vote has not been given, the director shall so certify and declare this chapter inoperative. The director shall also notify the appropriate policy committees in both the Assembly and Senate that the chapter is inoperative.
Fisheries for fish and shellfish species excepted by subdivision (a) of Section 78407 and not previously included in the list of fisheries subject to this chapter may be added to the fisheries subject to this chapter, including the payment of fees pursuant to Sections 78550 to 78557, inclusive, upon receipt by the secretary of a written request by proponents for inclusion, who shall represent either fishermen or receivers, or both, who are engaged in the fishery proposed for inclusion. The fishery shall be included under this chapter after all of the following occur:
The council recommends to the secretary the inclusion of the fishery, subject to the request by proponents for inclusion.
Unless alternative funding is recommended by the council, the proponents for inclusion deposit funds with the secretary in an amount the secretary determines is necessary to defray the expenses of preparing necessary lists and information and conducting inclusion referenda votes of fishermen or receivers, or both, engaged in the fishery proposed for inclusion.
A list of fishermen or receivers, or both, engaged in the fishery proposed for inclusion is established. The secretary shall establish a list not later than 60 days after the earlier of the following:
The receipt of the deposit pursuant to subdivision (b).
The receipt on an accurate list from the council.
An inclusion referendum, which is not more than 60 days in duration is conducted within 90 days following the receipt of the deposit pursuant to subdivision (b) or the receipt of an accurate list from the council, whichever is earlier, under the regulations that the secretary established, consistent with all other provisions for carrying out a referendum under this chapter.
A favorable vote, consistent with the percentage requirements of Section 78577 for a favorable vote of either fishermen or receivers, or both, engaged in the fishery proposed for inclusion and eligible to vote, is received.
Fisheries for species of fish and shellfish, that are subject to this chapter pursuant to subdivision (c) of Section 78407 that are added to the list of fisheries subject to this chapter pursuant to Section 78582, shall be treated the same as all other species of fish and shellfish subject to this chapter, and fishermen and receivers engaged in the fishery of that included species shall be appointed to the council in accordance with subdivision (e) of Section 78476.
Between January 1, 1996, and February 28, 1996, and in the same period each five years thereafter, or pursuant to subdivision (b) of Section 78578, the director shall, by the public hearing procedure, and if appropriate, the review referendum procedure provided for in Sections 78585 and 78586, determine whether the council program provided for in this chapter shall continue in effect.
If the director finds from evidence received at the hearing that a substantial question exists as to whether the council program is contrary to or does not effectuate the declared purposes or provisions of this chapter or receives in writing a referendum petition with the signatures of 25 percent or more of the number of fishermen or receivers, as evidenced by receipts prepared under Section 8043 of the Fish and Game Code, the council program shall be submitted to referendum as provided in Section 78585.
If the secretary determines that a review referendum procedure is appropriate or, pursuant to subdivision (b) of Section 78584, required, the secretary shall establish a referendum period of not to exceed 30 days during which period ballots shall be submitted to every fisherman or receiver on official membership lists in the possession of the council and the department. If the secretary determines that the referendum period does not provide sufficient time for the balloting, the secretary may extend the referendum for an additional period not to exceed 30 days. The ballots shall provide a “yes” or “no” voting alternative to the following question:
“Shall the California Seafood Council be continued for the next five fiscal years commencing April 1, following this referendum?”
If the council program is submitted to a review referendum under Section 78585, the director shall find that fishermen or receivers statewide have approved the council program if the director finds either of the following:
Sixty-five percent or more of the fishermen who voted in the review referendum, who landed in California 51 percent or more of the fish of the species listed in subdivision (a) of Section 78407 in the previous fiscal year, approve the program; or 51 percent or more of the fishermen, who landed in California 65 percent or more of the fish of the species listed in subdivision (a) of Section 78407 in the previous fiscal year, approve the program.
Sixty-five percent or more of the receivers who voted in the review referendum, who received 51 percent or more of the fish of the species listed in subdivision (a) of Section 78407 landed in California in the previous fiscal year, approve the program; or 51 percent or more of the receivers, who received 65 percent or more of the fish of the species listed in subdivision (a) of Section 78407 landed in California in the previous fiscal year, approve the program.
If the director finds that only the fishermen or only the receivers vote to approve the program in a review referendum, the director shall reconstitute the council pursuant to Section 78477. To reduce the membership on the council of either the fishermen or the receivers, whichever did not vote to approve the program, the director shall conduct a lottery of those choosing to remain from the nonapproval group to determine who shall remain on the council.
On the termination of the council pursuant to this article, the council shall remain in existence until the end of the marketing season then current for the purpose of furnishing the secretary with a complete record of its outstanding financial obligations. The secretary shall pay from the money collected pursuant to Article 7 (commencing with Section 78550) any outstanding obligations and any obligations incurred by the secretary and the department under this section. Any money that remains shall be retained by the secretary to defray the expenses of formulation, issuance, administration, or enforcement of any subsequent program for seafood promotion. If no seafood promotion program is undertaken within a period of three years from the date of termination of the council, that money shall be withdrawn from the approved depository and paid into the special account for enhancement and restoration programs established pursuant to Section 7861 of the Fish and Game Code. The secretary may also specifically designate any money that remains for expenditure for research on commercial fishery resources or fisheries, the improvement of commercial fishery resources or fisheries, or both.
CHAPTER 24. California Tomato Commission [78601. - 78725.]
ARTICLE 1. Declaration and General Provisions [78601. - 78611.]
The production and marketing of tomatoes constitutes an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
The maintenance of the tomato industry of California is necessary to assure the public of a continuous supply of this vital product and the maintenance of needed levels of income for those engaged in the tomato industry.
The production of tomatoes in California has the potential to be one of the leading segments of the state’s agricultural industry. To realize this potential, there is a need to make consumers aware of the nutritional value of tomatoes, the high quality of tomatoes produced by the industry, and the versatility of tomatoes as part of a well-balanced diet. The activities made possible by the establishment of the commission will meet this need and further the interests of the industry and the state.
The establishment of the commission is necessary for the efficient creation and management of a research program to develop improved varieties of tomatoes, an integrated approach to control pests and diseases common to tomatoes, and more efficient cultural practices. In addition, the commission is necessary to carry out the California tomato industry’s commitment to the efficient development and management of a national and international advertising and promotion program which, combined with the research program, will enhance the competitiveness of the California tomato industry within the national and international marketplace.
The successes that the tomato industry of California have enjoyed have come in part through a commitment to industry funded production research that has led to significant improvements in the quality and variety of the tomatoes available to consumers. It has also led to tomatoes being a better consumer value. The establishment of the commission will continue and enhance this research effort and move the tomato industry toward its potential, resulting in increased consumer value and enhanced grower returns.
The production and marketing of tomatoes in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, or by any individual in accordance with this chapter or with the regulations adopted under this chapter, is a violation of the so-called Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that commission members and alternates are intended to represent and further the interest of a particular industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to, and constitutes the public generally within the meaning of Section 87103 of the Government Code.
Opportunity exists for continued growth and expansion of the tomato industry by creating new markets in major portions of this country. The success of such an expansion program is uniquely dependent upon effective advertising, promotion, and research, since the creation of new markets is essentially a matter of educating and informing people of the use, nutritional value, and availability of the commodity. The expansion of the tomato industry also provides an important source of jobs for many people in this state, a high proportion of whom reside in historically depressed areas of the state, and serves to ensure the preservation of an agrarian society.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of tomatoes the opportunity to avail themselves of the benefits of collective action of the broad fields of development, maintenance, and expansion of markets, marketing research, advertising and promotion, and production and processing research necessary to achieve the purposes stated herein.
ARTICLE 2. Definitions [78620. - 78636.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Tomato Commission.
“Districts” shall consist of the following:
District 1 consists of Imperial and Riverside Counties.
District 2 consists of Los Angeles, Orange, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties.
District 3 consists of Fresno, Kern, Kings, and Tulare Counties.
District 4 consists of Monterey County.
District 5 consists of Madera, Merced, and Stanislaus Counties.
District 6 consists of San Joaquin County.
District 7 consists of all counties in the State of California.
The boundaries of any district may be changed by a two-thirds vote of the commission, which is concurred in by the secretary. These boundaries need not coincide with county lines.
“Ex officio member” means a nonvoting member of the commission.
“Fresh” means tomatoes, in any form, which have not been subject to heat processing.
“Handle” means to engage in the operation of selling, marketing, or distributing fresh market tomatoes that have been produced, or purchased or acquired from a producer, or which are marketed on behalf of a producer, whether as owner, agent, employee, broker, or otherwise, but shall not include retailing except for fresh market tomatoes not previously subject to this chapter.
“Handler” or “shipper” means any person, other than a common carrier, who handles a quantity of 250,000 pounds or more of tomatoes during a marketing season.
“Market” or “marketing” means to sell or otherwise distribute tomatoes into commercial channels or trade resulting in the sale of tomatoes.
“Marketing research” means any research relating to the sale of tomatoes.
“Marketing season” or “fiscal year” are synonymous terms and mean the period beginning March 1 of any year and extending through the last day of February of the following year.
“Person” means any individual, partnership, corporation, firm, company, or other entity doing business in California.
“Producer” and “grower” are synonymous terms and mean any person who produces, or causes to be produced, tomatoes in a quantity of 250,000 pounds or more delivered to handlers during the marketing season.
“Production research” means any research relating to the production, harvest, and post harvest handling of tomatoes.
“Secretary” means the Secretary of Food and Agriculture.
“Ship” and “shipping” are synonymous terms and mean the operations of receiving, grading, cleaning, transporting, distributing, or otherwise preparing for market or marketing, tomatoes for fresh consumption.
“Tomatoes” means all tomatoes that are produced for commercial purposes and are handled within the state in fresh form, except cherry tomatoes and tomatoes grown in a greenhouse.
For purposes of this section, “tomatoes grown in a greenhouse” means tomatoes grown in a fixed steel structure using irrigation and climate control, in an artificial medium that substitutes for soil.
Cherry tomatoes and tomatoes grown in a greenhouse may be included in the definition of tomatoes in subdivision (a) if approved by the producers and handlers of those tomatoes pursuant to a referendum conducted in accordance with the procedures in Article 5 (commencing with Section 78690) of Part 2 of Division 22.
ARTICLE 3. The California Tomato Commission [78640. - 78657.]
There is in the state government the California Tomato Commission. The commission shall be composed of 10 producers, seven handlers, and may include one public member, at the discretion of the commission.
Producers within the respective districts shall elect one producer from District 1, one producer from District 2, one producer from District 3, one producer from District 4, one producer from District 5, one producer from District 6, and four at-large producers from District 7.
Handlers within Districts 1 to 6, inclusive, shall elect one handler from each district and one at-large handler from District 7.
The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
The secretary and other appropriate individuals, as determined by the commission, shall be ex officio members of the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from notification of the decision. The secretary’s response may be a requirement that additional information be provided.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Except for ex officio members, an alternate for each member shall be elected in the same manner as the member. An alternate shall, in the absence of the member for whom he or she is an alternate, serve in place of the member and shall have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of a change in status making a member ineligible to serve, or due to death, removal, resignation, or disqualification of a member, the alternate shall act as a member of the commission until a qualified successor is elected or appointed.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal or resignation, shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
Any producer member and his or her alternate on the commission shall be an individual producer or an employee or representative of a producer who has a financial interest in producing or causing to be produced, tomatoes for market. Qualifications of producer members and their alternates shall be maintained during their entire term of office.
Any handler member and his or her alternate on the commission shall be an individual handler or an employee or representative of a handler who has a financial interest in handling tomatoes for market. Qualifications of handler members and their alternates shall be maintained during their entire term of office.
The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have any financial interest in the tomato industry.
The term of office of all members and alternates on the commission, except ex officio members, shall be two years from the beginning of the marketing season in the year of their election and until qualified successors are elected.
The commission shall be, and is hereby declared and created, a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission shall be six voting producer members and four voting handler members. Except as provided in Section 78723, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
No member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.
All funds received by any person from the assessments levied under this chapter or otherwise received by the commission shall be deposited in banks that the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member or alternate of the commission, or any employee or agent thereof, is personally liable for the contracts of the commission. No member or alternate of the commission, or any employee or agent thereof, is responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or alternate of the commission, or any employee or agent thereof, is responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and no member or alternate of the commission, or any employee or agent thereof, is liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
ARTICLE 4. Powers and Duties of the Commission [78660. - 78682.]
The powers and duties of the commission shall include, but are not limited to, all of those contained in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the tomato industry.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and such other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may retain a management firm or the staff from any board, commission, or committee of the state or federal government to perform the functions prescribed by this section under the direction of the commission.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the tomato industry.
The commission may promote the sale of tomatoes by advertising and any other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for tomatoes, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of tomatoes.
The commission may educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling tomatoes, and conduct market surveys and analyses.
The commission may conduct, and contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, respecting cultural and production practices, and marketing and distribution of tomatoes. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
The commission may make in its name, contracts to receive and render services in formulating and conducting plans and programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
The commission may solicit and accept contributions of, or match private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies for purposes of promoting and maintaining the tomato industry.
The commission may collect information, including, but not limited to, industry crop statistics, and publish and distribute without charge, a bulletin or other communication to persons subject to this chapter.
The commission shall establish an assessment rate to defray operating costs of the commission.
The commission shall establish an annual budget according to generally accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to Section 78665.
The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
The commission and the secretary shall keep confidential and shall not disclose, except when required by court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide producers and handlers access to communication with other producers and handlers regarding noncommercial matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the list of the names and addresses of producers and handlers in the possession of the commission or the secretary.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
In order to prevent unfair trade practices that are detrimental to California’s tomato industry, including, but not limited to, deception and misinformation, the commission may collect and disseminate to any and all interested persons, historical handler packout information, including, but not limited to, tomato grade and size.
The identity of each handler reporting information and the information reported under this section shall be kept confidential and shall not be made public under any circumstances. Information that gives industry totals, averages, and other similar data may be disclosed by the commission.
The procedure for the collection and dissemination of information pursuant to this section shall be approved by the secretary.
The commission may administer any government program that is engaged in the activities authorized by this chapter and that directly and exclusively affects the fresh tomato industry, upon the request of an authorized agent of the program.
ARTICLE 5. Implementation and Voting Procedures [78690. - 78698.]
Within 15 days of the effective date of this chapter, the secretary shall establish a list of producers and handlers eligible to vote on implementation of this chapter. In establishing the list, the secretary may require that producers and handlers submit the names and mailing addresses of all producers and handlers. The secretary also may require that the information provided include the quantity of tomatoes produced by each producer and the quantity of tomatoes handled by each handler, or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 78691. The request for the information shall be in writing and shall be filed within 10 days following receipt of the request.
Any producer whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement, identifying himself or herself as a producer or handler. Failure to be on the list does not exempt the person from paying assessments, and does not invalidate any industry votes conducted pursuant to this article.
Proponents and opponents of the commission may contact producers on the lists in a form and manner prescribed by the secretary if all expenses associated with those contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds the following in a referendum vote conducted by the secretary:
At least 40 percent of the total number of producers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting sold a majority of the total quantity of tomatoes in the preceding marketing season by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting sold 65 percent or more of the total quantity of tomatoes in the preceding marketing season by all of the producers who voted in the referendum.
At least 40 percent of the total number of handlers from the list established by the secretary pursuant to this article participate and that either of the following occurs:
Sixty-five percent of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled a majority of the total quantity of tomatoes in the preceding marketing season by all of the handlers who voted in the referendum.
A majority of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled 65 percent or more of the total quantity of tomatoes in the preceding marketing season by all of the handlers who voted in the referendum.
In finding whether the commission is approved pursuant to this article, the vote of any nonprofit agricultural cooperative marketing association that is authorized by its members to so vote, shall be considered as being the approval or rejection by the individual members of, or the individual stockholders in, the nonprofit agricultural cooperative marketing association.
The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot by an eligible person shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 78691, the secretary shall certify and give notice of the favorable vote to all affected producers and handlers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in Section 78691, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct other implementation referendum votes one year or more after the previous vote has been taken.
Upon certification of the commission, the members and alternates of any entity operating pursuant to an existing state marketing order affecting the same subject matter as this chapter shall comprise the initial membership of the commission. Thereafter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures established by the commission with the concurrence of the secretary.
Prior to the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any funds not used in carrying out Section 78690, shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [78700. - 78714.]
The commission shall establish the assessment for the marketing season not later than March 1 of each year or as soon thereafter as is possible. The assessment shall not exceed twenty cents ($0.20) per 100 pounds, or the equivalent, for tomatoes delivered to handlers by producers. Of the assessment, not more than ten cents ($0.10) per 100 pounds prepared for market, or the equivalent, shall be assessed against producers, and not more than ten cents ($0.10) per 100 pounds shall be assessed against handlers.
An assessment greater than the amount provided for in this section may not be charged unless and until a greater fee is approved by a majority of the commission and by eligible producers and handlers pursuant to procedures specified in Section 78691.
This chapter does not apply to tomatoes produced only for a producer’s home use or tomatoes that are used only for ornamental purposes.
Any person requesting an exemption from this chapter shall file an affidavit with the commission attesting that he or she is not an eligible producer or handler. The affidavit shall contain all the information required by the commission. The commission shall review the affidavit, conduct any additional investigation it deems appropriate, and approve or deny the affidavit.
Every person who handles tomatoes in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of tomatoes. The records shall be in a simple form and contain such information as the commission shall prescribe. The records shall be preserved by the handler for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of producers, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission.
Any assessment that is levied as provided for in this chapter is a personal debt of every person assessed.
The first handler of tomatoes being assessed shall deduct the assessment from amounts paid by him or her to the producer, and shall be a trustee of these assessments and assessments required to be paid by the handler until they are paid to the commission at the time and in the manner prescribed by the commission. Failure to collect the assessment from any producer shall not exempt the handler from liability. In addition, failure of a handler to remit the collected producer assessments to the commission shall not relieve the producer of this obligation.
When the producer or handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
Any person who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 112 percent interest per month on the unpaid balance.
In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
It is a misdemeanor for any person to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of tomatoes with the intent to avoid payment of assessments on the product’s highest value.
Fail to render or furnish a report, statement, or record required by the commission.
When engaged in the shipping of tomatoes or in the wholesale or retail trade of tomatoes, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom he or she received tomatoes, and the quantity so received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for that purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding tomatoes until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any violation of this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 7. Continuation or Suspension and Termination [78720. - 78725.]
Every five years, commencing with the 2001–02 marketing season, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum, voted in favor of continuing this chapter. In finding whether the commission is continued pursuant to this article, the vote of any nonprofit agricultural cooperative marketing association that is authorized by its members to so vote, shall be considered as being the approval or rejection by the individual members of, or the individual stockholders in, the nonprofit agricultural cooperative marketing association.
If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall so certify and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the marketing season ending the last day of February 2002. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 78724. No bond or security shall be required for any such referendum.
Following a hearing, a favorable referendum if required, conducted prior to the last day of February 2002, the process specified in Section 78720 shall be conducted by the commission every fifth year thereafter between March 1 and February 28, unless a referendum is conducted as the result of a petition pursuant to Section 78723. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing season.
The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the producers and handlers by number who sold or handled not less than 20 percent of the total quantity of tomatoes in the immediately preceding marketing season, hold a referendum among the producers and handlers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers and handlers from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
Sixty-five percent or more of the producers and handlers who voted in the referendum voted in favor of suspension, and the producers and handlers so voting sold or handled a majority of the total quantity of tomatoes in the preceding marketing season by all of the producers and handlers who voted in the referendum.
A majority of the producers and handlers who voted in the referendum voted in favor of suspension, and the producers and handlers so voting sold or handled 65 percent or more of the total quantity of tomatoes in the preceding marketing season by all of the producers and handlers who voted in the referendum.
After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the prorate refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all eligible persons affected by the suspension whose names and addresses are on file.
CHAPTER 24.5. Mendocino County Winegrape and Wine Commission [78801. - 78965.]
ARTICLE 1. Declarations and General Provisions [78801. - 78811.]
The production and distribution of winegrapes and wine in Mendocino County constitute important industries that provide substantial and necessary revenues for the county and state, and employment for citizens of the state. It also furnishes an important food product that benefits the public health and welfare.
The maintenance and expansion of the winegrape and wine industries of Mendocino County and of its local, national, and foreign markets is necessary to assure the consuming public of a continuous supply of these products and needed levels of income for those engaged in the winegrape and wine industries in Mendocino County.
Opportunity exists for continued growth and expansion of the Mendocino County winegrape and wine industries by creating new markets in the state, the county, and abroad. The success of an expansion program is uniquely depending upon effective education, advertising, promotion, and research, since the creation of new markets is essentially a matter of educating and informing people of the use and availability of the commodity. The expansion of the Mendocino County winegrape and wine industries also provides an important source of jobs for many people in the area, and serves to ensure the preservation of an agrarian society.
The production of winegrapes, wine, and winegrape products in Mendocino County has the potential to be one of the leading segments of the state’s winegrape and wine industries. To realize this potential, there is a need to make consumers aware of the high quality of winegrapes, wine, and winegrape products produced in Mendocino County. The activities made possible by the establishment of the commission will meet this need and further the interests of the industries and the state.
The Mendocino County winegrape and wine industries have enjoyed much success due to a commitment by the industries to fund research that has led to significant improvements in the quality and variety of winegrapes and wine available to consumers. It has also led to winegrapes and wine being a better consumer value. The establishment of the commission will continue to enhance this research effort and move the Mendocino County winegrape and wine industries toward its potential, resulting in increased consumer value and enhanced returns to growers and vintners.
The production and marketing of winegrapes, wine, and winegrape products produced in Mendocino County is hereby declared to be of public interest, therefore it is necessary and appropriate that these provisions be specifically applicable to Mendocino County. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
It shall be the policy of this state to preserve and encourage agricultural activities in the state, promote consumption of agricultural commodities produced and harvested in California, provide for research, governance, and accountability, including the ability for agriculture to act collectively and to assess itself through the process of referenda.
It shall also be the policy of this state that the program authorized in this chapter shall engage in activities that are not more extensive in scope than is necessary to accomplish its purposes, and that the powers and duties of this program are designed to directly and materially advance the state’s interest in a stable, thriving agricultural industry. Further, this policy can be implemented most effectively by the collective actions authorized in this chapter while not preventing individuals from additionally engaging in self-help activities.
No action taken by the commission, or by any individual in accordance with this chapter or with the regulations adopted under this chapter, is a violation of the Cartwright Act, Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code, the Unfair Practices Act, Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code, or any statutory or common law against monopolies or combinations in restraint of trade. Proof that any action complained of was done in compliance with this chapter shall be a complete defense to the action or proceeding. The Legislature intends this program to be among those contemplated by Congress in the enactment of Section 610(i) of Title 7 of the United States Code.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of winegrapes, wine, and other winegrape products in Mendocino County the opportunity to avail themselves of the benefits of collective action in the broad fields of development, maintenance, and expansion of markets, production, marketing, processing, and health-related research, public and trade education, and advertising and promotion necessary to achieve the purposes stated herein.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of the particular agricultural industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that, with respect to persons who are elected or appointed to the commission, the particular agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 2. Definitions [78821. - 78842.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Brandy” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of whole, sound, ripe grapes or from the residue thereof, distilled at not over 170 degrees proof.
“Commission” means the Mendocino Winegrape and Wine Commission.
“Department” means the Department of Food and Agriculture.
“Grape concentrate” or “concentrate” means unfermented grape juice from which the major portion of the original water content has been removed.
“Grape juice” or “juice” means unfermented crushed grapes without solids containing the major portion of the original water content.
“Ex officio member” means a nonvoting member of the commission.
“High proof” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of fresh winegrapes or from the residue thereof.
“Market” means to sell, barter, trade, purchase, acquire, or otherwise distribute wine, winegrapes, or winegrape products.
“Market development” includes, but is not limited to, trade, promotion, public education, dissemination of information on health and social issues, and other matters, and activities for the prevention, modification, or removal of trade barriers that restrict the free flow of winegrapes, wine, or winegrape products to market and may include, but is not limited to, the presentation of facts to local, state, federal, or foreign governmental agencies on matters that affect this chapter.
“Market research” means any investigation, development, analysis, or implementation of information relating to the marketing of winegrapes, wine, and winegrape products including, but not limited to, trade practices, consumer trends, promotion, sales, and advertising.
“Marketing season” or “fiscal year” means the period beginning July 1 of any year and extending through June 30 of the following year.
“Must” means a mixture of unfermented crushed grapes, solid grape particles, and grape juice.
“Person” means any individual, firm, partnership, corporation, limited liability company, association, or any other business entity.
“Process” or “processed” means producing must, grape juice, grape concentrate, wine, or other winegrape products, including high proof and brandy from winegrapes.
“Producer” or “grower” means any person who is engaged within Mendocino County in the business of producing, or causing to be produced, winegrapes for market. Producer also includes any person who receives winegrapes as a payment for the use of his or her property in the production of winegrapes.
“Production research” means research relating to the production and processing of winegrapes, including, but not limited to, the development of new winegrape products and uses for these products.
“Secretary” means the Secretary of Food and Agriculture.
“Vintner” and “processor” are synonymous and, except as otherwise specifically provided in this chapter, mean any person engaged in Mendocino County in producing or causing to be produced must, grape juice, grape concentrate, wine, or other winegrape products, including high proof and brandy, and includes a “winegrower” in Mendocino County as that term is defined in Section 23013 of the Business and Professions Code, who produces wine from winegrapes. However, a producer does not become a vintner solely by the act of field crushing winegrapes before delivering the winegrapes as must to another person.
“Wine” means the product obtained by the fermentation of winegrapes or juice therefrom, with or without addition or abstracting, and includes any product made from winegrapes that is defined as a wine and permitted under Part III (commencing with Section 5381) of Subchapter E of Chapter 51 of Title 26 of the United States Code, and in the statutes of this state and regulations issued thereunder defining wine produced from grapes.
“Winegrapes” means grapes produced in Mendocino County that are intended to be converted from their fresh form into grape juice, grape concentrate, wine, or products thereof, including, but not limited to, high proof brandy produced from winegrapes.
“Winegrape products” include, but are not limited to, must, grape juice, grape concentrate, wine, high proof, and brandy produced from winegrapes.
ARTICLE 3. The Mendocino Winegrape and Wine Commission [78851. - 78867.]
There is in the state government the Mendocino Winegrape and Wine Commission. The commission shall be composed of six producers who are not vintners, four vintners, and one public member.
The public member and his or her alternate shall be appointed to the commission by the secretary from nominees recommended by the commission.
The secretary shall be a nonvoting, ex officio member of the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the committee.
Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
The commission or secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, that may issue a temporary restraining order, permanent injunction, or other applicable relief.
When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from notification of the decision. The secretary’s response may be a requirement that additional information be provided.
The commission shall reimburse the secretary for all expenditures incurred in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to the that action.
Each member, except the ex officio members, shall have an alternate member selected by the member, subject to approval by the commission. An alternate shall, in the absence of the member for whom he or she is an alternate, serve in place of the member and shall have and be able to exercise all the rights, privileges, and powers of the member when serving on the commission. In the event of a change in status making a member ineligible to serve, or due to death, removal, resignation, or disqualification, of a member, the alternate shall act as a member of the commission until a qualified successor is elected or appointed.
Any individual serving as a producer member and his or her alternate member shall be a producer who is not also a vintner, or a management-level employee or representative of a producer who is not also a vintner, who has a financial interest in producing, or causing to be produced, winegrapes for market. The qualifications of producer members and alternate members shall be maintained during the entire term of office. No more than one member and his or her alternate member shall be employed by, represent, or be connected in a proprietary capacity with the same producer. However, producer membership in an agricultural nonprofit cooperative association or trade organization shall not be considered employment or being in a proprietary capacity.
Any individual serving as a vintner member and his or her alternate member shall be a vintner, or a management-level employee or representative of a vintner, who has a financial interest in producing winegrapes for market. The qualifications of vintner members and alternate members shall be maintained during the entire term of office. No more than one member and his or her alternate member shall be employed by, represent, or be connected in a proprietary capacity with the same vintner. However, vintner membership in an agricultural nonprofit cooperative association or trade organization shall not be considered employment or being in a proprietary capacity.
The public member and his or alternate member shall have all the rights, privileges, and powers of any other member of the commission. The public member shall not have any financial interest in the winegrape or wine industries.
The term of office of members and alternate members shall be for two years or until their successors have been elected and have qualified. However, of the first members of the commission, a portion of the producer members and their alternate members, and a portion of the vintner members and their alternate members, shall serve for one year so that the terms shall be staggered. The determination of the term of each member and his or her corresponding alternate member shall be made by lot. The commission may establish term limits for members and alternate members pursuant to procedures established by the commission and concurred in by the secretary.
Not less than six voting members shall constitute a quorum of the commission.
The vote of a majority of the members present at a meeting at which there is a quorum shall constitute an act of the commission.
The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state and shall be prima facie evidence of the truth of all statements therein.
The secretary or his or her representatives shall be notified and may attend meetings of the commission and any committee meetings of the commission.
No member or alternate member of the commission, or member of a committee established by the commission who is not a member of the commission, shall receive a salary. Each member of the commission and any alternate member serving in place of his or her member, except ex officio members, and each member of a committee established by the commission who is not a member of the commission, shall receive necessary traveling expenses and meal allowances, as approved by the commission, and may receive an amount not to exceed one hundred dollars ($100) per day, as established by the commission. This amount shall be paid for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on assignment for the commission, as approved by the commission.
All funds received by the assessments levied pursuant to this chapter or otherwise received by the commission shall be deposited in banks that the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission.
No member, alternate member, or any employee or agent of the commission, is personally liable for the contracts of the commission or for errors in judgment, mistakes, or other acts, either of commission or omission, except for their own individual act of dishonesty or crime. Liability is several and not joint, and no member, alternate member, or any employee or agent of the commission is liable individually for the default, act, or omission of any other member, alternate member, or any employee or agent of the commission.
ARTICLE 4. Powers and Duties of the Commission [78881. - 78882.]
The powers and duties of the commission shall include, but not be limited to, the following:
Elect a chairperson and other officers as it may deem advisable, and delegate duties as may be advisable.
Adopt and from time to time alter, rescind, modify, and amend all proper and necessary rules, procedures, and orders for the exercise of its powers and the performance of its duties, including rules of procedure for appeals from any rule, procedure, or order of the commission.
Administer and enforce this chapter, and do and perform all acts and exercise all powers incidental to or in connection with or deemed reasonably necessary, proper, or advisable to effectuate the purposes of this chapter.
Employ or retain a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including private legal counsel of its choice, necessary to carry out this chapter. The commission may fix the compensation for all employees of the commission. The commission may retain a management firm or the staff from any board, commission, or committee of the state or federal government to perform the functions prescribed by this section under the direction of the commission.
Establish offices and incur expenses, and enter into any and all contracts and agreements, and create liabilities and borrow funds in advance or receipt of assessments as may be necessary, at the discretion of the commission, for the proper administration and enforcement of this chapter and the performance if its duties.
Maintain accurate books, records, and accounts of all its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
Present facts to, and negotiate with, local, state, federal, and foreign agencies on matters affecting the winegrape, wine, and winegrape products industries.
Appoint committees composed of both members and nonmembers of the commission.
Promote the sale of winegrapes, wine, and winegrape products by advertising and other similar means for the purpose of maintaining and expanding present markets and creating new and larger intrastate and foreign markets for winegrapes, assess and address the impact of local, state, federal and foreign regulations on the winegrape products industries, and seek the elimination of tariff and nontariff trade barriers.
Educate and instruct the consuming public with respect to winegrapes, wine, and winegrape products, including, but not limited to, the uses, healthful properties and dietetic value of these commodities, and the environmental protection and conservation issues relating to the production of winegrapes.
Educate and instruct the wholesale, food service, and retail trade with respect to proper methods of handling and marketing of winegrapes, wine, and winegrape products, arrange for the performance of merchandising work providing display and other promotional materials, conduct market surveys and analysis, assist local, state, and federal agencies in negotiating with foreign governments regarding issues affecting market access, including, but not limited to, resolving phytosanitary issues, developing shipping protocols, limiting chemical residues, and addressing packaging, labeling, and other issues raised by countries imposing trade barriers on the import of agricultural products into their markets, and undertake any other similar activities that the commission may determine appropriate for the maintenance and expansion of present markets and the creation of new and larger markets for winegrapes, wine, and winegrape products.
Conduct, and contract with others to conduct, scientific and other research, including the study, analysis, dissemination and accumulation of information obtained from research or elsewhere respecting the production, cultural practices, nutritional and dietetic value, processing, storage, refrigeration, inspection, transportation, marketing and distribution of winegrapes, wine, and winegrape products.
Accept contributions of private, local, state, or federal funds, and make contributions of commission funds, or match contributions, to other persons or to local, state, or federal agencies for purposes of promoting, enhancing and maintaining the Mendocino County winegrape, wine, and winegrape products industries.
Cooperate with governmental or private entities in the resolution of emergencies arising in the industry and impacting the health and safety of the public or the continued stability of the industry.
Collect information, including, but not limited to, industry crop statistics, and publish and distribute without charge, a bulletin or other communication to persons subject to this chapter.
Establish an assessment rate to defray operating costs of the commission.
Establish an annual budget according to generally accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made for the payment of employees.
Submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
Keep confidential and not disclose, except when required by a court order after a hearing in a judicial proceeding involving this chapter, all information deemed proprietary or trade secret by the commission. The Legislature finds and declares that this provision is required to ensure that producer and vintner proprietary and trade secret information shall not be disclosed. The commission shall establish procedures to provide producers and vintners access to communicate with other producers and vintners regarding noncommercial matters affecting the commission so long as the access does not directly or indirectly release proprietary or trade secret information in the possession of the commission.
Investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
Administer any program that is engaged in activities authorized by this chapter upon the request of an authorized agent of the program.
The commission may collect and disseminate to any and all interested parties, vintner market price information based on sales that have occurred in order to prevent unfair trade practices that are detrimental to the Mendocino County winegrape, wine, and winegrape products industries, including, but not limited to, deception and misinformation.
The information reported under this section shall be kept confidential and shall not be made public under any circumstances. Only information that gives industry totals, averages, and other similar data in aggregate, nonindividualized form may be disclosed by the commission. The Legislature finds and declares that this provision is required to ensure that vintner proprietary information shall not be disclosed.
The procedure for the collection and dissemination of information pursuant to this section shall be concurred in by the secretary.
ARTICLE 5. Referendum on Implementation of this Chapter [78901. - 78909.]
Within 90 days of the effective date of this chapter, the secretary shall establish a list of producers and vintners in Mendocino County eligible to vote on implementation of this chapter. In establishing the list, the secretary may require that all producers and vintners in Mendocino County submit their names and mailing addresses.
The secretary may also require that the information provided include the quantity of winegrapes, wine, or winegrape products produced by each producer and vintner or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 78903. The request for information shall be in writing and shall be submitted to the secretary within 10 days following the receipt of the request.
Any producer or vintner in Mendocino County whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a producer or vintner. Failure to be on the list does not exempt the person from paying assessments, and does not invalidate any industry votes conducted pursuant to this chapter.
Proponents and opponents of the commission may contact producers and vintners on the lists in a form and manner prescribed by the secretary if all expenses associated with those contacts are paid in advance.
In determining whether this chapter is approved by producers, the secretary shall find both of the following:
That at least 40 percent of the total number of producers from the list established by the secretary participated in the referendum, and that either one of the following has occurred:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting market a majority of the volume of winegrapes in the preceding market season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted in the referendum.
That at least 40 percent of the total number of vintners from the list established by the secretary participated in the referendum, and that either one of the following has occurred:
Sixty-five percent or more of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting either acquired or processed their own production, or a combination thereof, that represents a majority of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the vintners who voted in the referendum.
A majority of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting either acquired or processed their own production, or a combination thereof, that represents 65 percent or more of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the vintners who voted in the referendum.
The secretary shall establish a period in which to conduct the referendum that shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
The secretary shall certify and give notice of a favorable vote to all producers and vintners whose names and addresses are on file with the secretary if he or she finds that a favorable vote has been given as provided in this chapter. The secretary shall certify and declare this chapter inoperative if he or she finds that a favorable vote has not been given as provided in this chapter.
Upon certification of the commission, the secretary shall call meetings of producers and vintners in Mendocino County for the purpose of nominating and electing persons to the commission, or in the alternative, may conduct the elections by mail ballot. All producers and vintners on the secretary’s list shall be given written notice of the election meetings at least 15 days prior to the meeting date, or reasonable notice of elections by mail ballot and a reasonable time period in which to return ballots. In any election of producer and vintner members to the commission, only producers who are not also vintners may vote for producer members and alternate members, and only vintners may vote for vintner members and alternate members.
Subsequent to the first members and alternate members elected to the commission, persons to be elected and appointed to the commission shall be selected pursuant to the nomination and election procedures established by the commission with the concurrence of the secretary.
Prior to the implementation referendum conducted by the secretary, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses in creating the commission, including, but not limited to, preparing the necessary producer and vintner lists and conducting the referendum.
Any funds remaining after paying expenses shall be returned to the proponents of the commission who deposited the funds with the secretary.
The commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out this article and for any legal or other professional fees and costs incurred in establishing the commission.
ARTICLE 6. Assessments [78921. - 78928.]
Prior to the beginning of each marketing season, or as soon as possible thereafter, the commission shall establish assessment rates for the marketing season, as follows:
An annual assessment on producers of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000), as determined by the commission, based on the number of tons of winegrapes marketed during the preceding marketing season.
In addition, producers shall pay an assessment not less than one dollar ($1) and not greater than twelve dollars ($12) per ton of winegrapes marketed by producers. In the discretion of the commission, the producer assessment may be established as a percent of the gross dollar value received by producers for winegrapes rather than on a per ton basis. The assessment shall be established on a sliding scale that decreases the assessment by two dollars ($2) per ton, or the percentage equivalent if the assessment is a percent of gross dollar value, for every 500 tons of winegrapes marketed by producers in excess of 1000 tons.
An annual assessment on vintners of not less than three hundred fifty dollars ($350) and not more than seven thousand five hundred dollars ($7,500), as determined by the commission, based on the number of tons of winegrapes processed and marketed by vintners during the preceding marketing season.
In addition, vintners shall pay an assessment not less than one dollar ($1) and not greater than twelve dollars ($12) per ton of winegrapes processed by vintners for which an assessment has not already been paid by a producer. The assessment shall be established on a sliding scale that decreases the assessment by two dollars ($2) per ton for every 500 tons of winegrapes processed by vintners in excess of 1000 tons.
An assessment greater than the amount provided for in this section may not be charged unless and until a greater amount is approved by a majority of the commission and by eligible producers and vintners pursuant to the referendum procedures specified in Section 78903.
This chapter shall not apply to winegrapes produced for a producer’s home or ornamental use, or processed for a vintner’s home use. A producer growing winegrapes commercially on three acres or less shall be exempted from the base assessment in subdivision (a) of Section 78921. Any producer or vintner requesting an exemption from the payment of assessments shall provide an affidavit approved by the commission containing information required by the commission. The commission shall review the affidavit, conduct any additional investigation it deems appropriate, and approve or deny the exemption. If granted, the exemption shall be valid for one marketing season and a new affidavit shall be filed and approved prior to each marketing season in order to retain an exemption from this chapter.
Every producer and vintner shall keep complete and accurate records of winegrapes produced, processed, and marketed, including, but not limited to, the number of tons of winegrapes delivered to or received by vintners, whether within or outside of Mendocino County, the names of the producers from which vintners receive winegrapes, and records related to the sale of winegrapes, wine, or winegrape products. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be preserved by producers and vintners for a period of five years and shall be offered and submitted for inspection at any reasonable time upon demand of the commission or its duly authorized agent.
For purposes of this section and for any other section of this chapter that relates to recordkeeping or the collection and remittance of assessments from producers, including any section dealing with confidentiality of information received from vintners, the term “vintner” shall include persons in this state outside Mendocino County who otherwise meet the definition of vintner in Section 78839. Those persons shall not be required to pay the vintner assessment established by the commission, but shall collect and remit assessments and reports regarding winegrapes received that were produced in Mendocino County.
All proprietary and trade secret information obtained by the commission from producers and vintners shall be confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter. The Legislature finds and declares that this provision is required to ensure that producer and vintner proprietary and trade secret information shall not be disclosed.
In addition, and notwithstanding any other provision of law, all proprietary or trade secret information developed or gathered pursuant to this chapter by the commission, or by the department on behalf of the commission, from any source is confidential, shall not be considered a public record as that term is defined in Section 7920.530 of the Government Code, and shall not be disclosed by the commission or the secretary except when required by a court order after a hearing in a judicial proceeding involving this chapter.
Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and other information that give only totals, but excludes individual information, may be disclosed by the commission.
The commission shall determine whether information is proprietary or trade secret and not subject to disclosure. If the commission denies a request for disclosure of this information, the commission shall provide written justification for its decision to the person requesting the information who may appeal the decision of the commission to the secretary.
Any assessment levied by the commission, pursuant to this chapter, is a personal debt of every person so assessed and is due and payable in the time and manner prescribed by the commission. Failure of a vintner to collect the assessment from a producer shall not exempt the vintner from liability nor relieve the producer of the obligation to pay the assessment.
When the producer or vintner is a corporation, general or limited partnership, or trust, all of the directors and officers of the corporation, all of the members and managers of the limited liability company, all of the general and limited partners in the partnership, and all of the trustees of the trust, in their capacity as individuals shall be included, and any liability for violating this chapter, including, but not limited to, failing to pay assessments or file required reports, shall also include identical liability upon each director and officer of the corporation, each member and manager of the limited liability company, each general and limited partner in the partnership, and each trustee of the trust. Title to the assessments, shall pass immediately to the commission. When collecting and remitting producer assessments, vintners shall hold the assessments in trust for the benefit of the commission until remitted in the time and manner specified by the commission.
Any person who fails to file a return, or remit or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and in addition, 1.5 percent interest per month on the unpaid balance.
In addition to any other penalty imposed, the commission may require any person who fails to submit records or pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
ARTICLE 7. Violations [78941. - 78945.]
It is unlawful for any person to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission or to in any way to affect the delivery, receipt, processing, or marketing of winegrapes with the intent to avoid payment of assessments.
Fail to render or furnish a report, statement, or record required by the commission.
When engaged in the production, delivery, processing, marketing, or other activities related to winegrapes, wine, or winegrape products, to fail or refuse to furnish the commission, or its duly authorized agents, information concerning the name and address of the persons to whom winegrapes were delivered or from whom winegrapes have been received, and the quantity delivered.
Secrete, destroy, or alter records required to be maintained under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its action or determinations an informal hearing before the commission, or before a committee of the commission designated for that purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil action and use all remedies provided in law or equity for the enforcement of this chapter, including, but not limited to, the collection of assessments, penalties, and interest, and for obtaining injunctive relief or specific performance regarding this chapter and the procedures adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other procedure of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 484.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding winegrapes, wine, or winegrape products until there is full compliance and satisfaction of the judgment.
Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any violation of this chapter shall be commenced within three years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within three years from the date of the act of which the person complains.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Reapproval of Chapter [78961. - 78965.]
Every five years, commencing with the 2011-2012 marketing season, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds, after the hearing, that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall continue in effect if the secretary finds that a majority of the eligible producers voting in the referendum voted in favor of continuing this chapter and a majority of the eligible vintners voting in the referendum voted in favor of continuing this chapter. In finding whether the commission is continued pursuant to this article, the vote of any nonprofit agricultural cooperative marketing association that is authorized by its member to so vote, shall be considered to be the approval or rejection by the individual members thereof, or the individual stockholders therein. No bond or security shall be required for any referendum required by this chapter however, this shall not apply to advance deposit of funds required by the department to cover the actual cost of a referendum.
If the secretary finds, after conducting a hearing pursuant to Section 78961, that no substantial question exists, or that a favorable vote has been given after a referendum, the secretary shall so certify and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given after a referendum vote, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the then current marketing season. Thereupon, the operations of the committee shall be wound up and concluded and funds distributed in the manner provided in Section 78964.
Upon a finding by a two-thirds vote of the commission that this chapter has not tended to effectuate its declared purpose, the commission may recommend to the secretary that this chapter be suspended. However, any suspension shall not become effective until the expiration of the then current marketing season.
Alternatively, the secretary may be petitioned to suspend this chapter. The petition must be signed by 2 percent of the producers, by number, who produced not less than 20 percent of the volume of winegrapes in the immediately preceding marketing season and 20 percent of the vintners, by number, who acquired not less than 20 percent of the volume of winegrapes in the immediately preceding marketing season.
The secretary shall, upon receipt of the recommendation to suspend this chapter from the commission, and may, after holding a hearing on the petition to suspend this chapter, hold a referendum among the producers and vintners to determine if the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by a preponderance of the evidence that this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period that shall not be less than 10 days nor more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers and 40 percent of the total number of vintners from the lists established by the secretary participate in the referendum, the secretary shall suspend this chapter if he or she finds either of the following has occurred:
Sixty-five percent or more of the producers and vintners who voted in the referendum voted in favor of suspension, the producers so voting marketed the majority of the total quantity of winegrapes marketed in the preceding marketing season by all of the producers who participated in the referendum, and the vintners so voting acquired the majority of the total quantity of winegrapes acquired in the preceding marketing season by all of the vintners who participated in the referendum.
A majority of the producers and vintners who voted in the referendum voted in favor of suspension, the producers so voting marketed 65 percent or more of the total quantity of winegrapes marketed in the preceding marketing season by all of the producers who voted in the referendum, and the vintners so voting acquired 65 percent or more of the total quantity of winegrapes acquired in the preceding marketing season by all of the vintners who voted in the referendum.
After the effective date of suspension of this chapter, the operation of the commission shall be wound up and concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating the operations of the committee shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission finds that the amounts returnable are such that it would be impractical or administratively burdensome to calculate and refund the moneys to the assessment payers, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid to another program conducted or used to fund activities related to the subject matter of this chapter.
Upon suspension of this chapter, the commission shall mail a copy of the notice of suspension to all producers and vintners affected by the suspension whose names and addresses are on file.
CHAPTER 25. Sea Urchins [79000. - 79145.]
ARTICLE 1. Declarations and General Provisions [79000. - 79009.]
The sea urchin fishery includes both divers and processors working together to provide a sustainable sea urchin resource and to ensure a reliable supply of quality seafood product for domestic consumption and export, thereby maintaining strong local coastal economies, fair levels of income to the thousands of persons engaged directly and indirectly in commercial fishing enterprises, and historically significant cultural and community resources of California’s coast.
The production and marketing of seafood, including sea urchin, constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
The production of sea urchin for domestic consumption and export is one of the leading segments of the state’s commercial fishing industry. To maintain this significant contribution to the state’s economy and public well-being, there is a need to make regulators aware of unique economic factors affecting the sea urchin fishery and how these factors can be integrated with appropriate management measures to protect a sustainable sea urchin resource. In addition, there is a need to make consumers and the general public aware of the nutritional value of seafood, the high quality of sea urchin produced by the industry, and the opportunities available to balance sea urchin production and protection of the natural marine resources of California. The activities made possible by the establishment of a commission will meet this need and further the interests of the industry and the state.
The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring and protection tools.
The successes that the sea urchin fishery in California has enjoyed have come in large part through a commitment by the industry to support appropriate management regulations guiding the harvesting of sea urchin and to fund research into resource assessment and enhancement methodology that has led to significant improvements in understanding the biology of the sea urchin resource. The establishment of a commission will continue and enhance this research effort and the ability of the industry to promote responsible fishery management regulations, all of which will move the industry toward a sustainable position, resulting in increased consumer value and enhanced economic returns.
The harvesting, processing, and marketing of sea urchin in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, or by any individual in accordance with this chapter or with the regulations adopted under this chapter, is a violation of the Cartwright Act, Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code, the Unfair Practices Act, Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code, or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
Opportunity exists for increasing the stability and reliability of the sea urchin fishery. The success of those efforts is uniquely dependent upon effective fishery and resource management, fishery biological research, industry engagement in management decisions, and fishery promotion. A stable and reliable sea urchin fishery provides an important source of jobs for many people in this state and economic activity in many small coastal communities, and serves to ensure the preservation of historically and culturally significant coastal dependent industry.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the sea urchin fishery the opportunity to avail themselves of the benefits of collective action within the broad fields of fishery management, resource protection and enhancement, harvesting and processing practices, and market development, expansion, and research necessary to achieve the purposes of this act.
ARTICLE 2. Definitions [79020. - 79026.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Commission” means the California Sea Urchin Commission.
“Fiscal year” means from April 1 of a year to March 31 of the next succeeding year.
“Diver” means an individual licensed to commercially harvest fish pursuant to Section 7850 of the Fish and Game Code, and who in addition holds a valid sea urchin diving permit.
“Handler” means any individual or person working for any individual or business entity licensed as one of the following who can document that they are substantially engaged in the California commercial sea urchin fishery:
A receiver licensed pursuant to Section 8033 of the Fish and Game Code.
A processor licensed pursuant to Section 8034 of the Fish and Game Code.
A wholesaler licensed pursuant to Section 8035 of the Fish and Game Code.
A business entity or organization licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code.
“Sea urchin” means the following species of fish:
Red sea urchin (Strongylocentrotus franciscanus).
Purple sea urchin (Strongylocentrotus purpuratus).
Any other species of sea urchin authorized for commercial landing in the state.
“Sea urchin fishery” means any activity, including economic activity, involved in the harvesting, receiving, processing, manufacturing, or distributing of sea urchin, parts of sea urchin, or products therefrom, for commercial purposes.
ARTICLE 3. The California Sea Urchin Commission [79040. - 79057.]
There is in the state government the California Sea Urchin Commission. The commission shall be composed of 11 voting members, including five sea urchin handlers, five sea urchin divers, and one public member, and may include any number of nonvoting members, at the discretion of the commission.
Handlers shall elect five commission members from among those persons qualified pursuant to this act and licensed pursuant to the Fish and Game Code to engage in the sea urchin fishery or a person specifically representing one or more handlers.
Divers statewide shall elect five persons from among those persons qualified pursuant to this act and licensed pursuant to the Fish and Game Code to engage in the sea urchin fishery.
One diver member shall be elected from each of the following areas:
San Diego County.
Orange or Los Angeles County.
Ventura County.
Santa Barbara County.
Sonoma or Mendocino County.
Persons nominated for election to the commission as a diver member shall be nominated by a petition signed by not less than five divers eligible to vote pursuant to this chapter.
The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
The secretary and other appropriate individuals, as determined by the commission, shall be nonvoting members of the commission.
If the secretary finds, pursuant to Section 79103, that either the divers or handlers, but not both, have voted in favor of the referendum, the number of commission voting members shall be six, composed of either five divers or five handlers, depending on which portion of the industry voted in favor of the referendum, elected pursuant to this section and one public member.
If the composition of the commission is determined by subdivision (e) it shall also include at least one nonvoting member appointed by the commission representing either divers or handlers, whichever did not vote in favor of the referendum.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from notification of the decision. The secretary’s response may be a requirement that additional information be provided.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Except for nonvoting members, alternates for regular members may be elected in the same manner as members. An alternate shall, in the absence of the member for whom he or she is substituting, serve in place of a member and shall have and be able to exercise all the rights, privileges, and powers of a member when serving on the commission. In the event of a change in status making a member ineligible to serve, or due to death, removal, resignation, or disqualification of a member, an alternate shall act as a member of the commission until a qualified successor is elected or appointed.
Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal or resignation, shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, resignation, or disqualification, shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
Any handler member and his or her alternate on the commission shall be an individual handler or an employee or representative of one or more handlers who have an ownership interest in a handling facility or who can document a substantial financial interest in processing or causing to be processed sea urchin for market.
Qualifications of handler members and their alternates shall be maintained during their entire term of office.
Any handler member or his or her alternate shall not have been convicted within the two years prior to election to the commission of a violation of any law related to the business of commercially handling any fish or seafood products, not including any technical reporting or paperwork violation.
Any diver member and his or her alternate on the commission shall be an individual diver who has documented landings of sea urchin in the previous commercial fishing license year. Qualifications of diver members and their alternates shall be maintained during their entire term of office.
Any diver member or his or her alternate shall not have been convicted within the two years prior to election to the commission of a violation of any law related to commercial fishing, not including any technical reporting or paperwork violation.
The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have any financial interest in the sea urchin fishery.
The term of office of all members and alternates on the commission, except nonvoting members, shall be two years from the beginning of the fishery season in the year of their election and may serve not more than two consecutive terms. Following the final term, a member may serve up to 12 months or until a qualified successor is elected, whichever occurs first.
A member or alternate who has served the maximum number of sequential years authorized by this section shall be again eligible for election to the commission following a period of not less than 12 months during which he or she has not served as either a member or an alternate.
The commission shall be, and is hereby declared and created, a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission shall be six voting members, including at least two handlers and two divers. Except as provided in Section 79143, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
No member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission and each alternate serving in place of a member, except nonvoting members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.
All funds received by the commission or an agent of the commission from the assessments levied under this chapter or otherwise received by the commission shall be deposited in accounts that the commission may designate and the secretary shall approve. Commission funds shall by expended for the purposes of this chapter only and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
Funds that exceed the amount of funds necessary for the annual operations of the commission and a prudent reserve may be invested by the commission in any of the securities authorized in Section 16430 of the Government Code.
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member or alternate of the commission, or any employee or agent thereof, is personally liable for the contracts of the commission. No member or alternate of the commission, or any employee or agent thereof, is responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or alternate of the commission, or any employee or agent thereof, is responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and no member or alternate of the commission, or any employee or agent thereof, is liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
ARTICLE 4. Powers and Duties of the Commission [79061. - 79081.]
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the sea urchin commercial fishing industry.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and such other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person or firm to serve at the pleasure of the commission as executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing entity or firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary may, as appropriate, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the sea urchin commercial fishing industry.
The commission may carry out industry educational programs with respect to proper methods of handling and preserving the quality of sea urchin to protect the public health, the economic viability of the fishery, and employee and diver safety and may conduct market surveys and analyses.
The commission may carry out public information programs regarding, but not limited to, the condition of the sea urchin resource, efforts to ensure a sustainable sea urchin resource, sea urchin quality standards the commission may adopt, and other programs to promote the sea urchin fishery. No commission funds shall be expended to advertise brand name sea urchin products.
The commission may adopt quality standards, a sea urchin fishery logo or trademark, or other promotional tools consistent with this chapter and other applicable laws.
The commission may conduct, or contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding the importance and methods for maintaining a sustainable sea urchin fishery, fishery management, resource management and enhancement, cost-efficient production practices, and marketing and distribution of sea urchin and sea urchin products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
The commission may enter into contracts to acquire and render services in preparing plans and conducting programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
The commission may accept contributions of, or match private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies for purposes of promoting and maintaining the sea urchin fishery.
The commission may collect information, including, but not limited to, fishery landing statistics, and publish and distribute without charge, a bulletin, newsletter, or other communication to persons subject to this chapter.
The commission shall establish an assessment rate to defray operating costs of the commission.
The commission shall establish an annual budget and maintain records of expenditures according to generally accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for ongoing disbursements made in relation to employees of the commission.
The secretary shall review the annual budget and expenditures to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commission’s activities.
The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
The commission and the secretary shall keep confidential and shall not disclose, except when required by court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide divers and handlers access to communication with other divers and handlers regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of divers and handlers in the possession of the commission or the secretary.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The commission may administer any government program engaged in the activities authorized by this chapter and that directly affects the sea urchin fishery, upon the request of an authorized agent of the program.
The commission may approve payment of a stipend to commission members of not more than one hundred twenty-five dollars ($125) for each day a member is on official commission business pursuant to Section 79055, not to exceed five hundred dollars ($500) in any single month.
ARTICLE 5. Implementation and Voting Procedures [79100. - 79104.]
Within 60 days of the effective date of this chapter, the secretary shall establish a list of divers and handlers eligible to vote on implementation of this chapter. In establishing the list, the secretary may require that divers and handlers submit the names and mailing addresses of all divers and handlers. The secretary also may request assistance of the Director of Fish and Game for the names of all licensed divers and handlers engaged in the sea urchin fishery during the previous season and the volume of landings of each diver. The request for information shall be in writing and the information provided shall be confidential and not made public. Notwithstanding Section 8022 or any other provision of law, the Director of Fish and Game shall comply with the request within 30 days of receipt.
Any diver and handler whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement, identifying himself or herself as a diver or handler, and submitting other supporting documentation. Failure to be on the list does not exempt the person from paying assessments, and does not invalidate any industry votes conducted pursuant to this article.
Proponents and opponents of establishing the commission pursuant to this chapter may contact divers and handlers on the lists through the secretary, in a form and manner prescribed by the secretary, if all expenses associated with those contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds at least one of the following in a referendum vote conducted by the secretary:
At least 40 percent of the total number of divers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the divers who voted in the referendum voted in favor of establishing the commission, and the divers so voting landed a majority of the total quantity of sea urchin landed in the preceding fishing season by all of the divers who voted in the referendum.
A majority of the divers who voted in the referendum voted in favor of establishing the commission, and the divers so voting landed 65 percent or more of the total quantity of sea urchin landed in the preceding fishing season by all of the divers who voted in the referendum.
At least 40 percent of the total number of handlers from the list established by the secretary pursuant to this article participate and that either of the following occurs:
Sixty-five percent of the handlers who voted in the referendum voted in favor of establishing the commission, and the handlers so voting handled a majority of the total quantity of sea urchin in the preceding fishing season by all of the handlers who voted in the referendum.
A majority of the handlers who voted in the referendum voted in favor of establishing the commission, and the handlers so voting handled 65 percent or more of the total quantity of sea urchin in the preceding fishing season by all of the handlers who voted in the referendum.
The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot by an eligible person shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given, pursuant to Section 79101, the secretary shall certify and give notice of the favorable vote to all affected divers and handlers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given, pursuant to Section 79101, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct other implementation referendum votes one year or more following certification of a previous vote.
If the secretary finds that a favorable vote has been given by either the divers or the handlers, but not both, the secretary shall certify and give notice of the favorable vote to all the divers and handlers whose names and addresses are on file with the secretary and this chapter shall be in effect only with regard to the divers or handlers, but not both, voting in favor of the referendum.
Prior to the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any funds not used in carrying out Section 79101 shall be deposited in the funds of the commission.
Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [79120. - 79132.]
The commission shall establish an assessment for the season not later than February 1 of each year or continue the previous assessment. The assessment in the first year of the commission’s operation shall be one cent ($0.01) for each pound of sea urchin landed or delivered by divers to handlers in the state. The maximum assessment that can be levied by majority vote of the commission shall not exceed three cents ($0.03) for each pound of sea urchin landed.
An assessment greater than the amount provided for in this section may not be levied unless and until a greater fee is approved by a majority of the commission and by eligible divers and handlers pursuant to procedures specified in this act.
The diver and the handler shall each pay one-half of the assessment established pursuant to this section. If the divers do not vote, pursuant to this act, to approve the commission, a diver is not required to pay any portion of the assessment. If handlers do not vote, pursuant to this act, to approve the commission, a handler is not required to pay any portion of the assessment. If either divers or handlers, but not both, vote in favor of the commission, the assessment may not exceed one-half of the amounts authorized by this section.
Any assessment that is levied as provided for in this section is a personal debt of every person assessed.
Every person or entity who handles sea urchin in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of sea urchin. The records shall be in a simple form and contain such information as the commission shall prescribe. The records shall be preserved by the handler for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
The assessment imposed by this article shall be paid consistent with the applicable procedures required for the payment of landing fees pursuant to Article 7.5 (commencing with Section 8040) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code. The fees imposed shall be paid quarterly pursuant to Section 8053 of the Fish and Game Code. If fees are not paid as required, the commission shall collect amounts owed under the procedures prescribed for sales and use taxes provided in Chapter 5 (commencing with Section 6451) of Part 1 of Division 2 of the Revenue and Taxation Code, insofar as they may be applicable, and for those purposes, “board” means the commission and “the date on which the tax became due and payable” means 30 days after the close of the quarter for which it is due.
Sections 8058 to 8070, inclusive, of the Fish and Game Code, shall apply to claims for overpayment of assessments to the commission. For the purposes of this subdivision, “department” as used in those sections, means the commission, and “landing fee” means the assessment imposed under this article.
All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of divers and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
Information on volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual diver or handler information, may be disclosed by the commission.
The first handler of sea urchin being assessed shall deduct the assessment from amounts paid by him or her to the diver, and shall be a trustee of these assessments until they are paid to the commission at the time and in the manner prescribed by the commission. Failure to collect the assessment from any diver shall not exempt the handler from liability. In addition, failure of a handler to remit the collected diver assessments to the commission shall not relieve the diver of this obligation.
When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
Any person who fails to pay any assessment, including submitting any records required by the commission, within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 112 percent interest per month on the unpaid balance.
In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
It is a misdemeanor for any person to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of sea urchin with the intent to avoid payment of assessments.
Fail to render or furnish a report, statement, or record required by the commission.
When engaged in the fishing of sea urchin or in the wholesale or retail trade of sea urchin, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons to whom sea urchin were sold or from whom sea urchin were received, and the quantity sold or received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for that purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 4 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding sea urchin until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any violation of this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
The commission may consult and enter into agreements with the Director of Fish and Wildlife, if necessary and appropriate, to assist in the administration and enforcement of this chapter, including, but not limited to, collecting assessments authorized by this chapter and providing routine information regarding the persons that may be subject to this chapter.
If an agreement is established, the commission shall reimburse the Department of Fish and Wildlife for reasonable administrative costs associated with the agreement.
ARTICLE 7. Continuation or Suspension and Termination [79140. - 79145.]
Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum, voted in favor of continuing this chapter.
If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall so certify and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 79144. No bond or security shall be required for any such referendum.
The process specified in Section 79140 shall be conducted by the commission every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79143. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current fishing season.
The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the divers and handlers who landed or handled not less than 20 percent of the total quantity of sea urchin in the immediately preceding fishing season, hold a referendum among the divers and handlers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of divers and handlers from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
Sixty-five percent or more of the divers and handlers who voted in the referendum voted in favor of suspension, and the divers and handlers so voting sold or handled a majority of the total quantity of sea urchin in the preceding fishing season by all of the divers and handlers who voted in the referendum.
A majority of the divers and handlers who voted in the referendum voted in favor of suspension, and the divers and handlers so voting landed or handled 65 percent or more of the total quantity of sea urchin in the preceding fishing season by all of the divers and handlers who voted in the referendum.
After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the prorated refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all eligible persons affected by the suspension whose names and addresses are on file.
CHAPTER 25.5. California Spiny Lobster Commission [79150. - 79197.5.]
ARTICLE 1. Declarations and General Provisions [79150. - 79154.5.]
The spiny lobster fishery includes both fishermen and handlers working together to provide a sustainable spiny lobster resource and to ensure a reliable supply of quality seafood product for domestic consumption and export, thereby maintaining strong local coastal economies, fair levels of income to the thousands of persons engaged directly and indirectly in commercial fishing enterprises, and historically significant cultural and community resources of California’s coast.
The production and marketing of seafood, including spiny lobster, constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
The production of spiny lobster for domestic consumption and export is one of the leading segments of the state’s commercial fishing industry. To maintain this significant contribution to the state’s economy and public well-being, there is a need to make regulators aware of unique economic factors affecting the spiny lobster fishery and how these factors can be integrated with appropriate management measures to protect a sustainable spiny lobster resource. In addition, there is a need to make consumers and the general public aware of the nutritional value of seafood, the high quality of spiny lobster produced by the industry, and the opportunities available to balance spiny lobster production and protection of the natural marine resources of California. The activities made possible by the establishment of a commission will meet this need and further the interests of the industry and the state.
The establishment of a commission is necessary for the efficient creation and management of a research program to develop improved harvesting and processing practices, an integrated approach to fishery management, and more efficient resource assessment, monitoring, and protection tools.
The successes that the spiny lobster fishery in California has enjoyed have come in large part through a commitment by the industry to support appropriate management regulations guiding the harvesting of spiny lobster and to fund research into resource assessment and enhancement methodology that has led to significant improvements in understanding the biology of the spiny lobster resource. The establishment of a commission will continue and enhance this research effort and the ability of the industry to promote responsible fishery management regulations, all of which will move the industry toward a sustainable position, resulting in increased consumer value and enhanced economic returns.
The harvesting, processing, and marketing of spiny lobster in this state is hereby declared to be affected with a public interest. The provisions of this chapter are enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
No action taken by the commission, or by any individual in accordance with this chapter is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
Opportunity exists for increasing the stability and reliability of the spiny lobster fishery. The success of those efforts is uniquely dependent upon effective fishery and resource management, fishery biological research, industry engagement in management decisions, and fishery promotion. A stable and reliable spiny lobster fishery provides an important source of jobs for many people in this state and economic activity in many small coastal communities, and serves to ensure the preservation of historically and culturally significant coastal dependent industry.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the spiny lobster fishery the opportunity to avail themselves of the benefits of collective action within the broad fields of fishery management, resource protection and enhancement, harvesting and processing practices, and market development, expansion, and research necessary to achieve the purposes of this chapter.
ARTICLE 2. Definitions [79155. - 79158.5.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Commission” means the California Spiny Lobster Commission.
“Ex officio” means nonvoting members of the commission.
“Fiscal year” and “marketing season” have the same meaning as the period of February 1 of any year and extending through January 31 of the following year.
“Fisherman” or “fishermen” means a person licensed to commercially harvest fish pursuant to Section 7850 of the Fish and Game Code, who in addition holds a valid spiny lobster fishing permit, and has documented landings of spiny lobster in the previous marketing season.
“Handler” means a person engaged with the following licensees:
Licensed pursuant to Section 8033 of the Fish and Game Code.
Licensed pursuant to Section 8034 of the Fish and Game Code.
Licensed pursuant to Section 8035 of the Fish and Game Code.
Licensed pursuant to subdivision (a) of Section 8032 of the Fish and Game Code.
“Spiny lobster” means the Panulirus interruptus species.
“Spiny lobster fishery” means any activity, including economic activity, involved in the harvesting, receiving, processing, manufacturing, or distributing of spiny lobster, parts of spiny lobster, or products therefrom, for commercial purposes.
ARTICLE 3. The California Spiny Lobster Commission [79160. - 79168.]
There is in the state government the California Spiny Lobster Commission. The commission shall be composed of six fishermen members and one public member. The secretary and other appropriate persons, as determined by the appointed commissioners, shall serve as ex officio members.
The fishermen members of the commission shall be elected as follows:
One fisherman member shall be elected by the fishermen in that county from each of the following counties:
County of San Diego.
County of Orange.
County of Ventura.
County of Santa Barbara.
County of Los Angeles.
One at-large member who is a qualified fisherman from any county shall be elected by all fishermen statewide.
Persons nominated for election to the commission as a fisherman member shall submit a petition signed by not less than five fishermen.
The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary, upon written notice, may suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of the activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice or from noncompliance by the commission with the written notice, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from the notification of the decision. The secretary’s response may be a requirement that additional information be provided.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, may relieve the commission of the responsibility for the payment of the secretary’s legal costs with regard to that action.
Alternates for regular members may be elected in the same manner as members. An alternate, in the absence of the member for whom he or she is substituting, shall serve in place of a member and shall have and be able to exercise all the rights, privileges, and powers of a member when serving on the commission. In the event a change in status makes a member ineligible to serve or due to the death, removal, resignation, or disqualification of a member, an alternate shall act as a member of the commission until a qualified successor is elected or appointed.
A vacancy on the commission occurring by the failure of a person elected to the commission as a member or alternate to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal, or resignation shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the remaining members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve or due to death, removal, resignation, or disqualification shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
A fisherman shall not be eligible to be elected to the commission as a member or alternate if he or she has been convicted of a violation of any law related to commercial fishing, not including any technical reporting or paperwork violation, within two years of seeking election to the commission and shall be immediately disqualified from serving on the commission if he or she is convicted during his or her term of service on the commission.
The public member and his or her alternate member on the commission shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission. The public member and his or her alternate member shall not have a financial interest in the spiny lobster fishery.
The term of office of all members and alternates on the commission, except ex officio members, shall be three years from the beginning of the fishery season in the year of their election and may serve not more than two consecutive terms. Following the final term, a member may serve until a qualified successor is elected.
A member or alternate who has served the maximum number of sequential years authorized by this section shall be again eligible for election to the commission following a period of not less than 12 months during which he or she has not served as a member.
The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
A quorum of the commission shall be four voting members, including at least four fishermen members. Except as provided in Section 79196.5, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.
The secretary or his or her representative shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
A member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall not receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission or on special assignment for the commission.
All moneys received by the commission or an agent of the commission from the assessments levied under this chapter or otherwise received by the commission shall be deposited in accounts that the commission may designate and the secretary shall approve. Commission moneys shall be expended for the purposes of this chapter only and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than thirty thousand dollars ($30,000).
Moneys that exceed the amount necessary for the annual operations of the commission and a prudent reserve may be invested by the commission.
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the moneys collected by the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be personally liable for the contracts of the commission. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. A member or alternate of the commission, or any employee or agent thereof, shall not be responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. Liability is several and not joint, and a member or alternate of the commission, or any employee or agent thereof, shall not be liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
ARTICLE 4. Powers and Duties of the Commission [79170. - 79179.7.]
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for the purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission.
The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary, to promote and maintain the spiny lobster commercial fishing industry.
The commission may appoint its own officers, including a chair, one or more vice chairs, and other officers as it deems necessary. The officers shall have the powers and duties delegated to them by the commission.
The commission may employ a person or firm to serve at the pleasure of the commission as executive officer of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, and borrow moneys in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing entity or firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary, as appropriate, may conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the spiny lobster fishery industry.
The commission may carry out spiny lobster fishery industry educational programs with respect to proper methods of handling and preserving the quality of spiny lobster to protect the public health, the economic viability of the spiny lobster fishery, and employee and fisherman safety and may conduct market surveys and analyses.
The commission may carry out public information programs regarding, but not limited to, the condition of and efforts to sustain the spiny lobster resource and other programs to promote the spiny lobster fishery. Commission moneys shall not be expended to advertise brand-name spiny lobster products except when conducted on a generic basis.
The commission may adopt a spiny lobster fishery logo or trademark or other promotional tools consistent with this chapter and other applicable laws.
The commission may conduct, or contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, regarding the importance of and methods for maintaining a sustainable spiny lobster fishery, fishery management, resource management, cost-efficient production practices, and the marketing and distribution of spiny lobster and spiny lobster products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
The commission may enter into contracts to acquire and render services in preparing plans and conducting programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.
The commission may accept contributions of, or match private, state, or federal moneys, and employ or make contributions of moneys to other persons or state or federal agencies for the purposes of promoting and maintaining the spiny lobster fishery.
The commission may collect information, including, but not limited to, spiny lobster fishery landing statistics, and publish and distribute without charge a bulletin, newsletter, or other communication to persons subject to this chapter.
The commission shall establish an assessment rate to defray the operating costs of the commission.
The commission shall establish an annual budget and maintain records of expenditures according to generally accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of moneys, except for ongoing disbursements made in relation to employees of the commission.
The secretary shall review the annual budget and expenditures to ensure that only reasonable and necessary administrative costs are paid for the proper operation of the commission’s activities.
The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
The commission and the secretary shall keep confidential and shall not disclose, except when required by a court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide fishermen access to communication with other fishermen regarding nonproprietary matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the names and addresses of the fishermen in the possession of the commission or the secretary.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The commission may administer any government program engaged in the activities authorized by this chapter and that directly affects the spiny lobster fishery, upon the request of an authorized agent of the program.
The commission may approve payment of a stipend to commission members of not more than one hundred forty-five dollars ($145) for each day a member is on official commission business pursuant to Section 79167, not to exceed seven hundred twenty-five dollars ($725) in any single month.
ARTICLE 5. Implementation and Voting Procedures [79180. - 79182.5.]
Within 60 days of the effective date of this chapter, the secretary shall establish a list of fishermen eligible to vote on the implementation of this chapter. In establishing the list, the secretary may require that fishermen submit the names and mailing addresses of all fishermen. The secretary also may request the assistance of the Director of Fish and Wildlife for the names of all licensed fishermen engaged in the spiny lobster fishery during the previous season and the volume of landings of each fisherman. The request for information shall be in writing and the information provided shall be confidential and not made public. Notwithstanding Section 8022 of the Fish and Game Code or any other law, the Director of Fish and Wildlife shall comply with the request within 30 days of receipt.
A fisherman whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a fisherman and submitting other supporting documentation. Failure to be on the list does not exempt the person from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
Proponents and opponents of establishing the commission pursuant to this chapter may contact fishermen on the lists through the secretary in a form and manner prescribed by the secretary, if all expenses associated with those contacts are paid in advance.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds in a referendum vote conducted by the secretary that at least 40 percent of the total number of fishermen from the list established by the secretary pursuant to this article participated and that either of the following occurred:
Sixty-five percent of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed a majority of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
A majority of the fishermen who voted in the referendum voted in favor of establishing the commission, and the fishermen so voting landed 65 percent or more of the total quantity of spiny lobster landed in the preceding fishing season by all of the fishermen who voted in the referendum.
The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum, including measures to maximize the likelihood that all eligible persons receive referendum voting materials. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given, pursuant to Section 79180.5, the secretary shall certify and give notice of the favorable vote to all affected fishermen whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given, pursuant to Section 79180.5, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct a second implementation referendum vote one year or later following certification of the first vote, subject to the time constraints imposed by subdivision (a) of Section 79182.5.
Before a referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Upon the establishment of the commission, the commission may reimburse the proponents of the commission for any moneys deposited with the secretary that were used in carrying out this article and for any legal expenses and costs incurred in establishing the commission.
If the first referendum vote conducted pursuant to this article fails and a second referendum vote is not conducted and certified as of the date that is two years later, this chapter is repealed as of that date, unless a later enacted statute that is enacted before that date, deletes or extends that date.
If a second referendum vote conducted pursuant to this article fails, this chapter is repealed as of the date that is six months later, unless a later enacted statute that is enacted before that date, deletes or extends that date.
For purposes of this section, the date on which a referendum vote fails shall be considered to be the date on which the secretary certifies pursuant to subdivision (b) of Section 79181.5 that a favorable vote has not been given.
ARTICLE 6. Assessments and Records [79185. - 79190.5.]
The commission shall establish an assessment for the season not later than February 1 of each year. The assessment in the marketing season of the commission’s operation shall be ten cents ($0.10) for each pound of spiny lobster landed by fishermen in the state. Thereafter, the assessment may be modified annually but in no event shall exceed fifty cents ($0.50) for each pound of spiny lobster landed, except as provided in subdivision (b).
An assessment greater than the amount provided for in subdivision (a) shall not be levied unless it is approved by a majority of the commission and by eligible fishermen in accordance with voting requirements of Section 79180.5.
Any assessment that is levied as provided for in this section is a personal debt of every person assessed.
Every person who handles spiny lobster in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of spiny lobster. The records shall be in a simple form and contain the information the commission prescribes. The records shall be preserved by the fisherman for a period of three years, and shall be offered and submitted for inspection at any reasonable time upon the written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of fishermen and the volume and value of landings made or purchased, is confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding.
Information on the volume and value of landings, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual fisherman information, may be disclosed by the commission.
The first handler of spiny lobster being assessed shall deduct the assessment from amounts paid by him or her to the fisherman, and shall be a trustee of these assessments until they are paid to the commission at the time and in the manner prescribed by the commission. The failure to collect the assessment from a fisherman shall not exempt the handler from liability. In addition, the failure of a handler to remit the collected fisherman assessments to the commission shall not relieve the fisherman of this obligation.
When the handler is a corporation, all of the directors and officers of the corporation in their capacity as individuals shall be included, and any liability for violating this chapter, including, but not limited to, failing to pay assessments or to collect assessments, shall also include identical liability upon each director or officer of the corporation.
Any person who fails to pay an assessment, including submitting any records required by the commission, within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 112 percent interest per month on the unpaid balance.
In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
It is a misdemeanor for any person to do any of the following:
Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of spiny lobster with the intent to avoid payment of assessments.
Fail to render or furnish a report, statement, or record required by the commission.
When engaged in the fishing of spiny lobster or in the wholesale or retail trade of spiny lobster, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons to whom spiny lobster were sold or from whom spiny lobster were received, and the quantity sold or received.
Secrete, destroy, or alter records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from the decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon a petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied. The injunction shall be stayed for a period of 30 days. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any violation of this chapter shall be commenced within two years from the date of the discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 7. Continuation or Suspension and Termination [79195. - 79197.5.]
Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum voted in favor of continuing this chapter.
If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall certify that this chapter remains operative. If the secretary finds that a favorable vote has not been given, he or she shall certify and declare that the operation of this chapter and the commission is suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and moneys distributed in the manner provided in Section 79197. No bond or security shall be required for that referendum.
The process specified in Section 79195 shall be conducted by the secretary every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79196.5. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, a suspension shall not become effective until the expiration of the current fishing season.
The secretary, upon receipt of the recommendation, shall or, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the fishermen who landed not less than 20 percent of the total quantity of spiny lobster in the immediately preceding fishing season, may hold a referendum among the fishermen to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of fishermen from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
Sixty-five percent or more of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting sold or handled a majority of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
A majority of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting landed or handled 65 percent or more of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.
After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remittance of the prorated refund to these persons, any moneys remaining after the payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.
Upon the suspension of the operation of this chapter, the commission shall mail a copy of the notice of the suspension to all eligible persons affected by the suspension whose names and addresses are on file.
CHAPTER 26. California Blueberry Commission [79201. - 79304.]
ARTICLE 1. Declaration and General Provisions [79201. - 79207.]
The production and marketing of blueberries constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.
The establishment of the commission is necessary for the efficient creation and management of a research program to develop improved varieties of blueberries, an integrated approach to manage pests and diseases common to blueberries, and more efficient cultural practices. The commission is also necessary for the efficient development and management of a state, national, and international advertising and promotion program that, combined with the research program, will enhance the competitiveness of the California blueberry industry within the national and international marketplace.
The maintenance of the blueberry industry in California is necessary to assure the public of a continuous supply of this important commodity and the maintenance of needed levels of income for those engaged in the blueberry industry of this state.
The production and marketing of blueberries produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of blueberries the opportunity to avail themselves of the benefits of collective action in the broad fields of transportation, pest management, advertising, promotion, food safety, production research, nutrition, marketing research, quality and maturity standards, the collection and dissemination of crop volume and related statistics, and public education.
No action taken by the commission, or by any individual in accordance with this chapter or with rules and regulations adopted under this chapter, shall be deemed a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any rule of statutory or common law against monopolies or combinations in restraint of trade.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of the particular industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to, and constitutes the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 2. Definitions [79211. - 79225.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Advertising and promotion” mean, in addition to their ordinarily accepted meaning, any plan directed toward increasing the sale of blueberries in domestic or foreign markets and trade promotion and activities for the prevention, modification, or removal of trade barriers that affect the marketing of blueberries.
“Blueberries” mean all blueberries produced in California for commercial purposes.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Blueberry Commission.
“Districts” consist of the following:
District 1 consists of all counties in the state along the coastline, including San Diego.
District 2 consists of the counties in the state that do not border the coastline and lie north of a line drawn on the north boundaries of the Counties of Fresno, Inyo, and San Benito.
District 3 consists of all counties in the state that do not border the coastline and lie south of the boundary line set forth in paragraph (2).
The boundaries of any district may be changed and districts may be added or eliminated by a two-thirds vote of the commission, which is concurred in by the secretary, so long as proper notice is provided to all persons subject to this chapter prior to the action. The boundaries need not coincide with county lines.
“Ex officio members” are nonvoting members of the commission.
“Handle” means to engage in the business of a handler.
“Handler” means any person who engages, in this state, in the operation of selling, marketing, or distributing blueberries that he or she has produced or purchased or acquired from a producer, or that he or she is marketing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise.
When the handler is a corporation or a limited liability company, all of the directors, officers, managers, and members of the corporation or limited liability company in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments to which a corporate handler or a handler that is a limited liability company may be subject pursuant to this chapter shall include identical liability upon each individual director, officer, manager, or member of the corporation or limited liability company.
“Handler” does not include a retailer, except for a retailer who purchases or acquires from any producer, or handles on behalf of any producer, blueberries that were not previously subjected to regulation by the commission.
“Market” or “marketing” means to sell or otherwise distribute blueberries into commercial channels or trade resulting in the sale of blueberries.
“Marketing research” means any research relating to the sale of blueberries.
“Marketing season” or “fiscal year” are synonymous terms and mean the period beginning March 1, 2010, to September 30, 2011, and, thereafter, October 1 of any year and extending through September 30 of the following year.
“Producer” and “grower” are synonymous terms and mean any person who produces or causes to be produced on land totaling more than five acres of blueberries for market and who shall, upon request of the commission, provide proof of commodity sale.
“Production research” means any research relating to the production, harvest, and postharvest handling of blueberries.
“Secretary” means the Secretary of Food and Agriculture.
ARTICLE 3. The California Blueberry Commission [79231. - 79247.]
There is in the state government the California Blueberry Commission. Except as provided in subdivision (c), the commission shall be composed of five producers, five handlers, and one public member. Three producer members shall be elected by and from producers within the respective districts, one from each district, and two producer members shall be elected by and from producers on a statewide basis without reference to districts. The handler members shall be elected by and from handlers on a statewide basis without reference to districts. The public member shall be appointed to the commission by the secretary from nominees recommended by the commission. Each entity subject to this chapter is limited to two representatives, one representing producers and one representing handlers.
The secretary and other appropriate persons as determined by the commission shall be ex officio members of the commission.
The commission may modify the number of producers and handlers who serve on the commission by a two-thirds vote of the commission that is concurred in by the secretary, so long as proper notice is provided to all persons subject to this chapter prior to the action and the number of producers and the number of handlers who serve on the commission remain equal.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until such time as the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the secretary’s written notice shall be without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that he or she determines are not in the public interest or are in violation of this chapter, and his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and may make recommendations that will make those activities or functions acceptable to the secretary.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities under this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Except for the ex officio members of the commission, each member of the commission shall have an alternate member elected in the same manner as the member. An alternate member, in the absence of the member for whom he or she is an alternate, shall serve in place of the member on the commission. An alternate member may also serve in place of any other absent member of the same classification, producer or handler, if the member’s alternate is also absent. However, an alternate may not serve in place of more than one absent member at a meeting. An alternate member serving in place of a member shall have and be able to exercise all rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or the disqualification of a member, the alternate for the member, or another alternate of the same classification if the alternate for the member is absent, shall act as a member on the commission until a qualified successor is elected.
Any vacancy on the commission including, but not limited to, the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled by the appointment of another person, for the unexpired portion of the term, by a majority vote of the commission. However, the appointee shall fulfill all the qualifications set forth in this article as required for the office he or she is to occupy. The qualifications of any person to fill a vacancy on the commission shall be certified in writing to the secretary. The secretary shall notify the commission if he or she determines that the person is not qualified.
A producer member or his or her alternate on the commission shall be an individual, partner, or employee of a producer who has a financial interest in producing, or causing to be produced, blueberries for market. The producer member or his or her alternate shall be so qualified during the entire term of office.
A handler member or his or her alternate on the commission shall be an individual, partner, or employee of a handler who has a financial interest in handling blueberries for market. The handler member or his or her alternate shall be so qualified during the entire term of office.
The public member, or his or her alternate on the commission, shall have all the powers, rights, and privileges of any other member on the commission. The public member shall not have any financial interest in the blueberry industry.
The term of office of all members of the commission and alternates, except any ex officio member, shall be two years from the date of their election and until their successors are elected, except, that of the first members of the commission, one-half shall serve one year and one-half shall serve two years. The determination of the term of each member shall be made by lot at the time of election.
The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission is a majority of the producer members and a majority of the handler members on the commission. Except as otherwise provided in this chapter, the vote of a majority of members present at a meeting at which there is a quorum shall constitute an act of the commission.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission. However, the secretary is not entitled to attend an executive session of the commission called for the purpose of discussing potential or actual litigation against the department.
No member of the commission or of any committee established by the commission, which may include nonmembers of the commission, shall receive a salary. Except for ex officio government members, the members may receive reasonable and necessary traveling expenses and meal allowances, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.
If the secretary is required to concur in a decision of the commission, he or she shall indicate his or her response to the commission within 15 working days from notification of the decision. The response may be a request that additional information be provided.
All moneys received by any person from assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks designated by the commission and shall be disbursed by order of the commission through an agent or agents designated for that purpose. Any authorized agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in the state, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The state shall not be liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. No member, alternate member, or any employee or agent of the commission, shall be personally liable on the contracts of the commission and no member, alternate member, or employee of the commission shall be responsible individually in any way to any producer, handler, or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or alternate member shall be held responsible individually for any act or omission of any member or alternate member of the commission. The liability of the members and alternate members shall be several and not joint, and no member or alternate member shall be liable for the default of any other member or alternate member.
ARTICLE 4. Powers and Duties of the Commission [79251. - 79252.]
The powers and duties of the commission shall include, but are not limited to, all of the following:
Adopt and from time to time alter, rescind, modify, and amend bylaws, rules, regulations, and orders for carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, or order of the commission. These actions shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
Administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or determined reasonably necessary for, proper or advisable effectuation of the purposes of this chapter.
Appoint its own officers, including a chairperson, one or more vice chairpersons, and any other officers as it determines necessary. The officers shall have the powers and duties delegated to them by the commission.
Employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter. The commission may retain a management firm or staff from any board, commission, or committee of the state to perform the functions prescribed by this subdivision under control of the commission. If the person engages in any conduct that the secretary determines is not in the public interest or in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective, and if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
Fix the compensation for all employees of the commission.
Appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
Establish offices and incur expenses, invest funds, enter into contracts and agreements, and create liabilities and borrow funds in advance of receipt of assessments as determined necessary by the commission for the proper administration and enforcement of this chapter and the performance of its duties.
Keep accurate books, records, and accounts of all of its dealings, which books, records, and accounts shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. The audit shall be made a part of an annual report to all producers and handlers of blueberries, and copies of the audit shall be submitted to the Legislature and the department. In addition, the secretary may, as he or she determines necessary, conduct, or cause to be conducted, a fiscal and compliance audit of the commission.
Promote the sale of blueberries by advertising and any other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for blueberries, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of blueberries.
Educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling blueberries, make market surveys and analyses, and present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the marketing of blueberries.
Make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements the commission determines necessary for the promotion of blueberries.
Conduct, and contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere with respect to cultural and production practices, good agricultural practices, and marketing and distribution of blueberries. In connection with the research, the commission shall have the power to accept contributions of, or to match, private, state, or federal funds that may be available for these purposes, and to employ or make contributions of funds to other persons or state or federal agencies conducting the research.
Collect information and publish and distribute to producers and handlers a bulletin or other communication for dissemination of information, including, but not limited to, crop statistics relating to the blueberry industry.
Establish an assessment rate to defray operating costs of the commission.
Establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to subdivision (e).
Submit to the secretary for his or her concurrence, an annual statement of contemplated activities authorized under this chapter.
Investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
Administer any program authorized in Article 9 (commencing with Section 79301).
Prescribe the form and manner by which proponents and opponents of the commission may contact producers and handlers so long as all expenses associated with the contacts are paid in advance.
Develop and promote good agricultural practices and other food safety practices for the production of blueberries.
To prevent unfair trade practices which are detrimental to California’s blueberry industry, including, but not limited to, deception and misinformation, the commission shall collect and disseminate to any and all interested persons, handler f.o.b. (free on board), market price information based on sales that have occurred.
The identity of each handler reporting information and the information reported under this section shall be kept confidential and not made public under any circumstances. Information that gives industry totals, averages, and other similar data may be disclosed by the commission.
The procedure for the collection and dissemination of the information pursuant to this section shall be approved by the secretary.
ARTICLE 5. Implementation and Voting Procedures [79261. - 79268.]
Within 15 days after the effective date of this chapter, the secretary shall establish a list of producers and handlers eligible to vote on the implementation of this chapter. In establishing the list, the secretary shall require that producers and handlers of blueberries in California submit the names, mailing addresses, and the volume of blueberries produced by each producer and handled by each handler during the preceding marketing season. The request for the information shall be in writing. The information shall be filed within 10 days following receipt of the written request for information.
Any producer or handler of blueberries whose name does not appear upon the secretary’s list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a producer or handler. Failure to be on the list does not exempt the producer or handler from paying assessments under this chapter.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds the following in a referendum vote conducted by the secretary:
At least 40 percent of the total number of producers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting produced a majority of the total quantity of blueberries produced in the preceding marketing season by all of the producers voting in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting produced 65 percent or more of the total quantity of blueberries produced in the preceding marketing season by all of the producers voting in the referendum.
At least 40 percent of the total number of handlers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled a majority of the total quantity of blueberries handled in the preceding marketing season by all of the handlers voting in the referendum.
A majority of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled 65 percent or more of the total quantity of blueberries handled in the preceding marketing season by all of the handlers voting in the referendum.
The secretary shall establish a period in which to conduct the referendum which shall not be less than 10 days or more than 60 days in duration and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 79262, he or she shall so certify and give notice of the vote to all producers and handlers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in this article, he or she shall so certify and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one or more years after the previous vote has been taken.
Upon certification of the commission, the secretary shall contact all producers and handlers in a manner determined by the secretary for the purpose of nominating and electing persons to the commission. To be eligible for election to the commission, nominees shall present to the secretary a nomination petition with the signatures of at least three eligible persons.
Subsequent to the first selection of members of the commission, persons to be elected to the commission shall be selected pursuant to nomination and election procedures established by the commission with the concurrence of the secretary.
Prior to the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary an amount of funds determined necessary by the secretary to defray the expenses of preparing the necessary lists and information and conducting the vote. Any funds not used for this purpose shall be returned to the proponents of the commission who deposited the funds with the secretary. Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [79271. - 79278.]
The commission shall, not later than March 1, 2010, or as soon thereafter as possible, establish the assessment to be paid by the producers and handlers for the marketing season. Thereafter, the commission shall, not later than October 1 of each year, or as soon thereafter as possible, establish the assessment to be paid by the producers and handlers for the marketing season. The assessment shall not be more than two and one-half cents ($0.025) per pound for blueberries handled. Of the assessment one-half shall be assessed to producers, and one-half shall be assessed to handlers.
An assessment greater than the amounts in this section may not be charged unless it is approved in accordance with the voting requirements of Section 79262.
This chapter does not apply to blueberries produced only for a producer’s home use or to blueberries that are used only for ornamental purposes.
Every person who handles blueberries shall keep a complete and accurate record of all blueberries handled by him or her with the name of the producer whose blueberries were handled. A producer who delivers or markets blueberries to persons other than to a handler shall keep a complete and accurate record of all those blueberries. The records shall contain information required by the commission. The records shall be preserved by the producer or handler for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from any source, including the names and addresses of producers and handlers, shall be confidential and shall not be disclosed except when required by court order in a judicial proceeding.
Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission.
The first handler of blueberries being assessed shall deduct the assessment from amounts paid by him or her to the producer, and shall be a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission. A producer who handles blueberries shall pay an assessment directly to the commission at the time and in the manner prescribed by the commission.
Every handler shall be personally liable for the payment of the collected assessments from producers, and failure to collect the assessment from any producer shall not exempt the handler from liability.
Any assessment that is levied as provided in this chapter is a personal debt of every producer and handler so assessed.
Any person who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be past due and, in addition, interest on the unpaid balance at the rate of 1.5 percent per month.
In addition to any other penalty imposed, the commission may require any person who fails to pay any assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount and for a period of time specified by the commission as assurance that all payments to the commission will be made when due.
ARTICLE 7. Actions and Penalties [79281. - 79287.]
A civil penalty not exceeding one thousand dollars ($1,000) may be levied by the commission upon a person who does any of the following:
Willfully to render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of blueberries in order to avoid payment of assessments on the product’s highest value.
Fail to render or furnish a report, statement, or record required by the commission.
When engaged in the shipping or processing of blueberries or in the wholesale or retail trade of blueberries, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom he or she has received blueberries and the quantity so received.
Secrete, destroy, or alter records required to be kept by this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for obtaining injunctive relief or specific performance, relating to this chapter and the rules and regulations adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding blueberries until there is full compliance with, and satisfaction of, the judgment.
Upon a favorable judgment for the commission, the court may order that the commission be reimbursed for reasonable attorney’s fees and other actual related costs. Venue for these actions is at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any penalty or other remedy that is prescribed under this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the alleged violation.
The commission is not required to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.
This chapter shall be liberally construed. If any section, clause, or part of this chapter is for any reason held unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the remaining portions of this chapter or the application of this chapter to any other persons or under any other circumstance.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [79291. - 79295.]
Five years after implementation of this chapter, the secretary shall hold a public hearing, after providing proper notice to all persons subject to this chapter and any other persons or entities who have requested, in writing, notice of the hearing, to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among the persons assessed under this chapter regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum to be conducted among producers and handlers to determine whether the operation of this chapter shall be reapproved and continued in effect.
If the secretary finds after conducting a hearing that no substantial question exists or, if a reapproval referendum is required, that a majority of the eligible producers and a majority of eligible handlers voting in the referendum voted in favor of continuing the operation of this chapter, the secretary shall so certify and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the current marketing season. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 79294. No bond or security shall be required for any such referendum.
Following a hearing, and favorable referendum if required, the process specified in Section 79291 shall be conducted by the secretary every five years thereafter between October 1 and September 30, unless a referendum is conducted as the result of a petition pursuant to Section 79293. In that case, the hearing, and referendum if required, shall be conducted every five years following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the commission be suspended. Any suspension shall not become effective until the expiration of the current marketing season.
The secretary shall, upon receipt of a recommendation, or may, after a public hearing to review a petition filed with him or her requesting such suspension, signed by 15 percent of the producers by number who produced not less than 15 percent of the volume in the immediately preceding marketing season and 15 percent of the handlers by number who handled not less than 15 percent of the volume in the immediately preceding marketing season, cause a referendum to be conducted among the listed producers and handlers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not effectuated its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of this chapter, if the secretary finds the following:
At least 40 percent of the total number of producers from the list established by the secretary participate, and that either of the following occurs:
Sixty-five percent of the producers who voted in the referendum voted in favor of suspension, and the producers so voting produced a majority of the total quantity of blueberries produced in the preceding marketing season by all of the producers voting in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting produced 65 percent or more of the total quantity of blueberries produced in the preceding marketing season by all of the producers voting in the referendum.
At least 40 percent of the total number of handlers from the list established by the secretary participate, and that either of the following occurs:
Sixty-five percent of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled a majority of the total quantity of blueberries handled in the preceding marketing season by all of the handlers voting in the referendum.
A majority of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled 65 percent or more of the total quantity of blueberries handled in the preceding marketing season by all of the handlers voting in the referendum.
After the effective date of suspension of this chapter and of the commission, the operations of the commission shall be concluded and all moneys held by the commission, and moneys collected by assessment and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding current marketing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the pro rata refund to those persons, any moneys remaining and any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program or used to fund activities related to the subject matter of this chapter.
Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all producers and handlers affected by the suspension whose names and addresses are on file.
ARTICLE 9. Quality Standards [79301. - 79304.]
The commission may recommend to the secretary that he or she adopt blueberry quality standards, product labeling, or engage in any other activity authorized pursuant to the California Marketing Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of Division 21). The adoption of standards or any of these activities shall be in accordance with the procedures specified in that act unless otherwise specified in this article.
Any activity recommended by the commission shall not become operative until approved in the manner specified in Section 79262.
Any activity adopted pursuant to this article shall be implemented by the secretary at the beginning of the marketing season next succeeding the date on which the activity is approved by the secretary.
The commission shall serve as the advisory body to the secretary on all matters pertaining to this article.
CHAPTER 27. California Nursery Producers Commission [79401. - 79525.]
ARTICLE 1. Declaration and General Provisions [79401. - 79414.]
The production of nursery products constitutes an important industry of this state that provides substantial and necessary revenues for the state, products that are a foundation for its residents’ food supply, and employment for its residents.
The maintenance of the nursery industry of California is necessary to assure the public and the state’s and nation’s crop agriculture industry of a continuous supply of vital nursery products and the maintenance of needed levels of income for those engaged in the nursery industry and in its supplier, distribution, and related service chain.
The production of nursery products in California is currently the state’s number two agricultural crop with 2008 farm gate sales of four billion dollars ($4,000,000,000) and has the potential to become the leading segment of the state’s agricultural industry. To realize this potential, there is a need to engage in research beneficial to the industry, to educate the public relative to nursery products, and to promote and market nursery products. The activities made possible by the establishment of the commission will meet these needs and further the interests of the industry and the state.
The nursery industry has been negatively impacted by invasive pests and diseases that also adversely affect the state’s environment, urban quality, and agricultural production. The activities authorized by this commission will improve the quality of nursery products and limit these negative impacts.
The establishment of the commission is necessary for the efficient development and management of a research, public education, and marketing program that will enhance the reputation of the California nursery industry, create a more receptive environment for the industry and its products, aid its growth at both wholesale and retail, and increase competitiveness of the California nursery industry within the national and international marketplace. In addition, the commission is necessary to carry out the California nursery industry’s commitment to responsible stewardship, environmental protection, and increasingly efficient cultural practices.
The Legislature finds and declares that the commission is intended to operate in conjunction with other nursery-related laws and programs in the state, including, but not limited to, the licensing laws and regulations applicable to nurseries (Chapter 1 (commencing with Section 6701) of Part 3 of Division 4), the inspection and cleanliness laws applicable to nurseries (Article 1 (commencing with Section 6901) of Chapter 2 of Part 3 of Division 4), the shipment and pest certification laws applicable to nurseries (Article 2 (commencing with Section 6921) and Article 4 (commencing with Section 6961) of Chapter 2 of Part 3 of Division 4), the grades and standards laws and regulations applicable to nurseries (Chapter 5 (commencing with Section 53301) of Division 18), and specific nursery stock programs such as the California Grape Rootstock Improvement Commission (Chapter 12.6 (commencing with Section 74701)).
The legislature finds and declares that the commission enhances the existing comprehensive statutory and regulatory structure affecting all aspects of nursery products production in California.
The commission shall periodically meet and confer with all other nursery-related programs administered by the department to ensure coordination of policies and programs.
The Legislature further finds and declares that the programs specified in Section 79406, including this commission, greatly benefit the nursery industry, and as such, advance the interests of the State of California by providing substantial employment for the state’s citizens, producing needed tax and fee revenues for the support of state and local government, encouraging responsible stewardship of valuable agricultural resources and the environment, and producing substantial quantities of nursery products for the state, nation, and world.
The successes that the nursery industry of California has achieved have resulted from a commitment to industry-funded research that has led to significant improvements in the quality and quantity of the nursery products available to consumers and increasingly more efficient and environmentally protective cultural practices. The establishment of the commission will continue and enhance this research effort and move the nursery industry toward its potential, resulting in increased consumer value and enhanced grower returns.
The production of nursery products in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.
Opportunity exists for continued growth and expansion of the nursery industry by creating new markets. The success of such an expansion program is uniquely dependent upon effective research and public education, since the creation of new markets is essentially a matter of educating and informing people of the use, value, and availability of nursery products and enhancing the reputation of the California nursery products industry. The expansion of the nursery industry also provides an important and expanding source of jobs for many people in this state, including many residing in historically depressed areas of the state, and it serves to ensure the preservation of an agrarian society. The expansion also provides pathways for the unemployed, the poor, unskilled laborers, rehabilitated inmates, and other disadvantaged groups to learn valuable professional nursery skills and obtain seasonal or permanent employment with career potential.
The commission’s activities are necessary for the efficient development of a national and international program and exists as an integral part of a broader framework of state and federal statutes and regulations designed to: collectively enhance the quality and reputation of California nursery products; create a more receptive environment for nursery products; improve the capability of nursery products producers to function within the overall regulatory environment; increase the competitiveness of the nursery products industry within the national and international marketplace; implement the industry’s commitment to responsible stewardship of agricultural land and the environment and increasingly efficient cultural practices; and further the goals and interests of the state by preserving the economic well-being of the agricultural economy.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of nursery products the opportunity to avail themselves of the benefits of collective action in the broad fields of research, education, and the development, maintenance, and expansion of markets.
No action taken by the commission, or by any individual in accordance with this chapter or with the regulations adopted under this chapter, is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade. The Legislature intends this program to be among those contemplated by the United States Congress in the enactment of Section 610(i) of Title 7 of the United States Code.
It is hereby declared as a matter of legislative determination that commission members and alternates are intended to represent and further the interest of a particular industry concerned and that this representation and furtherance is intended to serve a public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to and constitutes the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 2. Definitions [79421. - 79433.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Nursery Producers Commission.
“Department” means the Department of Food and Agriculture.
“Districts” consists of the following:
District 1, which includes the Counties of Imperial, Orange, and San Diego.
District 2, which includes the Counties of Inyo, Kern, Kings, Los Angeles, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, Tulare, and Ventura.
District 3, which includes the Counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Fresno, Glenn, Humboldt, Lake, Lassen, Madera, Marin, Mariposa, Mendocino, Merced, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba.
Notwithstanding subdivision (a), the boundaries of any district may be changed by a two-thirds vote of the members of the commission, which is concurred in by the secretary, when necessary to maintain similar total production among the districts and to ensure proper representation. These boundaries need not coincide with county lines.
“Ex officio member” means a nonvoting member of the commission.
“Market” or “marketing” means to sell nursery products to a person other than another producer.
“Marketing season” or “fiscal year” are synonymous terms and mean the period beginning May 1 of any year and extending through April 30 of the following year.
“Person” means any individual, partnership, corporation, limited liability company or partnership, firm, company, or other entity doing business in California.
“Producer” means any person that operates under a California state nursery license (producer category), and that produces, or causes to be produced, nursery products for the purposes of transferring title to another person. “Producer” does not include a licensed producer nursery that produced and sold nursery products for a gross dollar value of less than two million five hundred thousand dollars ($2,500,000) in the preceding marketing season.
“Research” means any research relating to invasive pests, the production, harvest, postharvest handling, or marketing of nursery products, nursery product components, or practices employed by nurseries, and research relating to public education regarding nurseries and nursery products, including, but not limited to, basic and applied research.
“Secretary” means the Secretary of Food and Agriculture.
“Sell” or “sold” means to transfer or cause the transfer of title to nursery products for valuable consideration.
ARTICLE 3. California Nursery Producers Commission [79441. - 79456.]
There is in the state government the California Nursery Producers Commission. The commission shall be composed of 14 producers nominated and elected by and from producers, and one public member.
Eligible persons from within the respective districts shall elect four producers from District 1, four producers from District 2, and four producers from District 3. All eligible persons shall elect two members at large.
The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
The secretary and other appropriate individuals, as determined by the commission, shall be ex officio members of the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.
When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from notification of the decision. The secretary shall set forth in writing with specificity the reasons for any refusal to concur. The secretary’s response may be a requirement that additional information be provided.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Except for ex officio members, an alternate for each member shall be nominated and elected, and for the public member appointed, in the same manner as the member. An alternate shall, in the absence of the member for whom he or she is an alternate, serve in place of the member and shall have, and be able to exercise, all the rights, privileges, and powers of the member when serving on the commission. In the event of a change in status making a member ineligible to serve, or due to death, removal, resignation, or disqualification of a member, the alternate shall act as a member of the commission for the unexpired portion of the term.
Except as provided in Section 79441, any vacancy on the commission occurring by the failure of any person elected to or serving on the commission as an alternate to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.
Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, resignation, or disqualification, may be filled upon appointment by the secretary, from nominees recommended by the commission, of another eligible person for the unexpired portion of the term. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.
Any producer member and his or her alternate on the commission shall be an individual producer or an employee or representative of a producer that has a financial interest in producing nursery products or causing nursery products to be produced. The qualifications of producer members and their alternates shall be maintained during their entire term of office. The absence of any producer member from two consecutive meetings or lapse in qualifications shall be grounds for the commission to declare the seat vacant.
The public member and his or her alternate shall not have any financial interest in the nursery industry. The public member and his or her alternate shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission, except that the public member and his or her alternate member shall not have a vote on issues regarding the assessments established pursuant to Article 6 (commencing with Section 79501).
Commission members and alternates shall serve three-year terms and until their successors are elected, and qualified, except, that of the first members of the commission, one-third shall serve one year, one-third shall serve two years, and one-third shall serve three years. The determination of the term of each member shall be made by lot. The public member and his or her alternate shall serve three-year terms and until their successors are appointed and qualified.
The commission may sue and be sued regarding any matter related to the purposes of this chapter and contract and be contracted with.
A majority of the members of the commission shall constitute a quorum of the commission for the transaction of business. The vote of a majority of the members present at a meeting at which there is a quorum constitutes the act of the commission. The commission may continue to transact business at a meeting at which a quorum is initially present, notwithstanding the withdrawal of members, provided any action is approved by the requisite majority of the required quorum.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.
No member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.
All funds received by any person from the assessments levied under this chapter or otherwise received by the commission shall be deposited in banks that the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member or alternate of the commission, or any employee or agent thereof, is personally liable for the contracts or other liabilities of the commission. No member or alternate of the commission, or any employee or agent thereof, is responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or alternate of the commission, or any employee or agent thereof, is responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. No member or alternate of the commission, or any employee or agent thereof, is liable for the default of any other member or alternate of the commission, or any employee or agent thereof.
ARTICLE 4. Powers and Duties [79461. - 79482.]
The powers and duties of the commission shall include, but are not limited to, all of those contained in this article.
The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission. These actions of the commission shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, proper or advisable effectuation of the purposes of this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may retain a management firm or the staff from any board, commission, or committee of the state or federal government to perform the functions prescribed by this section under the direction of the commission.
If requested by an advisory board, board of directors, or any authorized agent, the commission may administer any governmental program related to the nursery products industry.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, develop, own, and control the use of any intellectual property, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary, as he or she determines necessary, may conduct or cause to be conducted a fiscal and compliance audit of the commission. Except in the first year of operation, the commission shall prepare and make available an annual report within 90 days of the beginning of the fiscal year of all activities and the financial status of the commission to all persons subject to this chapter.
The commission may present facts to, and negotiate with, local, state, federal, and foreign agencies and governments on matters that affect the California nursery industry, including, but not limited to, the maintenance and expansion of present markets, the creation of new and larger markets for nursery products, invasive pest issues, plant health, interstate and foreign export requirements, registration of pesticides, actions applicable to the state and federal environmental laws and regulations, applicable governmental regulations and statutes, and international trade agreements.
The commission may conduct outreach, advertise, and educate and instruct the public and the retail and wholesale trade with respect to the quality, features, uses, and value of nursery products and the practices and methods of production used by nurseries.
The commission may conduct outreach and educate and instruct the wholesale and retail trade, including, but not limited to, their physical and electronic channels of distribution to markets with respect to proper methods of handling and selling nursery products, and conduct consumer, trade, and trading partner surveys and analyses.
The commission may conduct, and contract with others to conduct, research, including the study, analysis, dissemination, and accumulation of information obtained directly or from research or elsewhere, with respect to cultural, production and postharvest practices, and the sourcing, marketing and distribution of nursery products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.
The commission may contract to receive and render services in formulating and conducting plans and programs and enter into any other contracts or agreements that the commission deems necessary to carry out this chapter.
The commission may accept contributions of, or match private, state, or federal funds, and employ or make contributions of funds to other persons or local, state, or federal agencies for proper or advisable effectuation of the purposes of this chapter.
In its discretion, the commission may cooperate with or provide funding to other private or governmental entities in the resolution of emergencies arising in the industry and impacting the health and safety of the public or to maintain the continued stability and reputation of the nursery industry.
The commission may collect information, including, but not limited to, industry crop statistics, identity and size of markets, and trading partners, and publish and distribute without charge, a bulletin or other communication to producers of nursery products.
The commission shall establish an assessment rate to be paid by producers to defray operating costs of the commission.
The commission shall establish an annual budget according to generally accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to Section 79466.
The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
The commission may appoint any person to serve as an ex officio member.
ARTICLE 5. Implementation and Voting Procedures [79491. - 79499.]
Within 60 days of a request from any producer, the secretary shall establish a list of producers eligible to vote on implementation of this chapter. The secretary may require producers to submit the names and mailing addresses of other producers. The secretary also may require that the information provided include information on the value of nursery products produced and sold by each producer or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in this article. The request for the information shall be in writing and shall be filed within 10 days following receipt of the request.
Any producer eligible to vote whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement, identifying himself or herself as a person eligible to vote. Failure to be on the list does not exempt the person from providing information requested by the secretary or the commission or from paying assessments and does not invalidate any industry votes conducted pursuant to this article.
Any producer eligible to vote may contact those on the list regarding the referendum in a form and manner prescribed by the secretary if all expenses associated with those contacts are paid in advance. Subsequent to the implementation of this chapter and the establishment of the commission, the commission shall prescribe the form and manner by which eligible producers may contact other eligible producers regarding the administration of this chapter.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds, in a referendum vote conducted by the secretary, that at least 40 percent of the total number of producers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed a majority of the total value of nursery products marketed in the preceding marketing season by all of the producers voting in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the total value of nursery products marketed in the preceding marketing season by all of the producers voting in the referendum.
The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot by an eligible producer shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in this article, the secretary shall certify and give notice of the favorable vote to all affected producers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in this article, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct other implementation referendum votes one year or more after the previous vote has been taken.
Prior to the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.
Any funds not used in carrying out this article shall be returned to the proponents of the commission who deposited the funds with the secretary.
Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in establishing the commission.
Upon certification of the commission, the secretary shall contact all producers by mail or call meetings of producers for the purpose of nominating and electing persons to the commission. All producers on the secretary’s list shall be given written notice of the meetings at least 10 days prior to the meeting date.
Subsequent to the first election of members and alternate members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures established by the commission with the concurrence of the secretary.
ARTICLE 6. Assessments and Records [79501. - 79510.]
The commission shall establish the assessment for the marketing season not later than May 1 of each year, or as soon thereafter as possible. The assessment shall not be more than six-tenths of one cent ($0.006) per dollar of gross sales.
The commission may establish an assessment rate that is different for various classes of trade, including, but not limited to, different rates for retail sales than for wholesale sales, provided that rate does not exceed the maximum assessment authorized in subdivision (a).
This chapter does not apply to nursery products produced only for a producer’s home use unless the use shall constitute a transfer of title between separate business entities held by a single owner.
Any person requesting an exemption from this chapter shall file an affidavit with the commission attesting that he or she is not a producer, as defined in Section 79429, or produces nursery products only for his or her own home use without transfer of title between entities as specified in Section 79502. The affidavit shall contain all the information required by the commission. The commission shall review the affidavit, conduct any additional investigation it deems appropriate, and approve or deny the affidavit.
Every person who produces nursery products for market, whether or not the nursery products are valued at more than the gross dollar value established pursuant to Section 79429, shall keep a complete and accurate record of the nursery products produced and sold and aggregated data on its customers and trading partners classified into statistical summary information in categories prescribed by the commission, and shall submit the records to the commission upon request in the time and manner specified by the commission. The records shall be in simple form and contain the information that the commission prescribes. The records shall be preserved by the person producing nursery products for a period of three years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
All information obtained by the commission or the secretary from producers and other persons required to keep and submit records pursuant to this article shall be confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter.
In addition, and notwithstanding any other provision of law, all proprietary or trade secret information developed or gathered pursuant to this chapter, including, but not limited to, the names and addresses of persons subject to this chapter, individual quantities produced or sold, prices paid, and the products of research obtained by the commission, or by the department on behalf of the commission, from any source is confidential, shall not be considered a public record as that term is defined in Section 7920.530 of the Government Code, and shall not be disclosed by the commission or the secretary except when required by a court order after a hearing in a judicial proceeding involving this chapter.
Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission in its sole discretion.
Any assessment that is levied as provided for in this chapter is a personal debt of every person assessed.
Every producer shall be a trustee of the assessments owed to the commission until they are paid to the commission at the time and in the manner prescribed by the commission. Title to the assessments shall pass immediately to the commission upon the sale of nursery products resulting in an assessment, and the producer shall hold the assessments in trust for the benefit of the commission and shall remit them, with assessment reports, in the time and manner specified by the commission.
When the producer is a corporation, limited liability company, general, limited, or limited liability partnership, or trust, all of the directors and officers of the corporation, all of the members and managers of the limited liability company, all of the general and limited partners in the partnership, and all of the trustees of the trust, in their capacity as individuals shall be included, and any liability for violating this chapter, including, but not limited to, failing to pay assessments or file required reports, shall also include identical liability upon each director and officer of the corporation, each member and manager of the limited liability company, each general, limited, and limited liability partner in the partnership, and each trustee of the trust.
Any person who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 1.5 percent interest per month on the unpaid balance.
In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.
ARTICLE 7. Violations [79511. - 79516.]
A civil penalty not exceeding one thousand dollars ($1,000) may be levied by the commission upon a person who does any of the following:
Willfully renders or furnishes a false report, statement, or record required by the commission.
Fails to render or furnish a report, statement, or record required by the commission.
Secretes, destroys, or alters records required to be kept under this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission or before a committee of the commission designated for that purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding nursery products until there is full compliance and satisfaction of the judgment. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any violation of this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [79521. - 79525.]
In the fifth year of operation of this chapter, and every five years thereafter, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible producers regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible producers voting in the referendum voted in favor of continuing this chapter. No bond or security shall be required for a referendum pursuant to this section.
If the secretary finds after conducting a hearing that no substantial question exists, or after a referendum that a favorable vote has been given, the secretary shall so certify and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given after a referendum, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the then current marketing season. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in this article.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the then current marketing season.
The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with him or her requesting a suspension signed by 15 percent of the producers by number who produced and sold not less than 15 percent of the total value of nursery products in the immediately preceding marketing season, hold a referendum among producers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by a preponderance of the evidence that this chapter has not tended to effectuate its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of producers from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:
Sixty-five percent or more of the producers who voted in the referendum voted in favor of suspension, and the producers so voting sold a majority of the total value of nursery products in the preceding marketing season by all of the producers who voted in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting sold 65 percent or more of the total value of nursery products in the preceding marketing season by all of the producers who voted in the referendum.
After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the prorate refund to these persons, any funds remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducting or funding activities related to the subject matter of this chapter, or to a private nonprofit organization which has received tax exempt status under Section 501(c)(3) of the Internal Revenue Code and which benefits the California nursery industry.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to all eligible producers affected by the suspension whose names and addresses are on file.
CHAPTER 28. California Apiary Research Commission [79601. - 79705.]
ARTICLE 1. Declaration and General Provisions [79601. - 79606.]
The California beekeeping industry provides critical pollination services to growers of over 90 California agricultural crops that constitute one-third of our daily diet and 37.5 percent of California’s total agricultural production. Additionally, California beekeepers rank in the top four states annually in honey production. The industry provides substantial and necessary revenues for the state and for its citizens.
The establishment of the commission is necessary for the efficient creation and management of a research program to protect the health of honeybees, an integrated approach to manage pests and diseases common to honeybees, and to develop more efficient colony management practices. The commission is also necessary to ensure the existence of the segment of the industry that provides one-half of the queen bees, bulk bees, and starter colonies to other beekeepers throughout the United States and Canada. The commission is also necessary for the efficient development and management of state and national education programs that, combined with research, will enhance the competitiveness of the California beekeeping industry worldwide.
The provision of pollination services, production of honey, bees, queen bees, and other hive products in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
The commission form of administration created by this chapter is designed to provide those engaged in beekeeping the opportunity to avail themselves of the benefits of collective action in the broad field of apiary research necessary to achieve the purposes stated in this chapter.
No action taken by the commission or by any individual commission member, that is in accordance with this chapter or with regulations adopted under this chapter, is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
ARTICLE 2. Definitions [79611. - 79629.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Apiary” means the physical location where beekeepers place one or more colonies of honeybees. As an adjective, “apiary” means pertaining to any aspect of beekeeping or the beekeeping industry.
“Beekeeper” means a person who keeps bees.
“Bees” means honey-producing insects of the genus Apis. It includes all life stages of these insects. For purposes of this chapter, bees and honeybees are interchangeable terms.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Colony” means the queen, the adult worker and drone bees, and the brood (eggs, larvae, and pupae) living together in a single society.
“Commission” means the California Apiary Research Commission.
“Department” means the Department of Food and Agriculture.
“Districts” consist of the following:
District 1 consists of the California Counties of El Dorado, Marin, Napa, Sacramento, Solano, Sonoma, and all counties north of these counties.
District 2 consists of the California Counties of Inyo, Kern, San Luis Obispo, and all counties north of these counties up to the southern boundary of District 1.
District 3 consists of the California counties south of District 2.
District 4 consists of all areas not in California.
“Ex officio members” are nonvoting members of the commission.
“Hive” means the structure containing a honeybee colony.
“Hive products” means materials collected or generated by honeybees, other than bees and honey, including, but not limited to, beeswax, pollen, royal jelly, venom, and propolis.
“Fiscal year” means the period beginning January 1 of any year and extending through the last day of December of that same year.
“Out-of-state beekeeper” means a producer whose principal residence is in an area outside of California.
“Pest” means American foulbrood or any other disease, parasite, virus or fungus, predator, or hereditary disorder that is detrimental to honeybees.
“Pollination unit” means a colony of adequate strength to meet the criteria delineated in a pollination contract for use in commercial crop pollination.
“Principal residence” means where the producer pays his or her state and local income tax.
“Producer” means an individual beekeeper or business who owns or operates, or owns and operates, more than 50 colonies in California, with the intent to earn income.
“Secretary” means the Secretary of Food and Agriculture.
ARTICLE 3. The California Apiary Research Commission [79631. - 79646.]
There is in the state government the California Apiary Research Commission. The commission shall be composed of six assessment-paying producers and one public member. Producers without reference to districts shall elect one producer member with principal residence from each of districts 1, 2, 3, and 4, and two producers at large without reference to districts. The public member shall be appointed to the commission by the secretary based on the recommendation from the commission.
The secretary and other appropriate persons, as determined by the commission, shall be ex officio members of the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary to be in violation of this chapter or not to be in the public interest.
If the commission refuses or fails to cease those activities or functions or to make corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until such time as the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the secretary’s written notice shall be without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that he or she determines are not in the public interest or are in violation of this chapter, and his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and may make recommendations that will make those activities or functions acceptable to him or her.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities under this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Each producer member of the commission shall have an alternate member appointed or elected in the same manner as the member. An alternate member, in the absence of the member for which he or she is an alternate, shall serve in place of the member on the commission. An alternate member may also serve in place of any other absent member, if the member’s alternate is also absent. However, an alternate may not serve in place of more than one absent member at a meeting. An alternate member serving in place of a member shall have and be able to exercise all rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or the disqualification of a member, the alternate for that member, or another alternate if the alternate for the absent member is also absent, shall act as a member on the commission until a qualified successor is elected.
The public member shall have an alternate member appointed in the same manner as the public member. The alternate public member, in the absence of the public member, shall serve in place of the public member. The alternate public member serving in place of the public member shall have and be able to exercise all rights, privileges, and powers of the public member when serving on the commission. In the event of death, removal, resignation, or the disqualification of the public member, the alternate public member shall act as the public member on the commission until a qualified successor is appointed.
Any vacancy on the commission, including, but not limited to, the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled by the appointment of another person, for the unexpired portion of the term, by a majority vote of the commission. However, the appointee shall fulfill all the qualifications set forth in this article as required for the office he or she is to occupy.
A producer member, or his or her alternate, shall be an assessment-paying beekeeper who has a financial interest in producing, or causing to be produced, pollination units, bees, honey, or hive products for market. The producer member or his or her alternate shall be so qualified during the entire term of office.
The public member, or his or her alternate, shall have all the powers, rights, and privileges of any other member on the commission. The public member shall not have any financial interest in the beekeeping industry.
The term of office of all members and alternates, except any ex officio member, shall be three years from the date of their election, but they may serve until their successors are elected.
The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.
A quorum of the commission is a majority of the producer members. Except as otherwise provided in this chapter, the vote of a majority of members present at a meeting at which there is a quorum shall constitute an act of the commission.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission. However, the secretary is not entitled to attend an executive session of the commission called for the purpose of discussing potential or actual litigation against the department.
No member of the commission or of any committee established by the commission, which may include nonmembers of the commission, shall receive a salary. Except for ex officio government members, the members may receive reasonable and necessary traveling expenses and meal allowances, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.
If the secretary is required to concur in a decision of the commission, he or she shall indicate his or her response to the commission within 15 working days from notification of the decision. The response may be a request that additional information be provided.
All moneys received by any person from assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks designated by the commission and shall be disbursed by order of the commission through an agent or agents designated for that purpose. Any authorized agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in the state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).
The state shall not be liable for the acts of the commission or its contracts. Payment of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. No member, alternate member, or any agent of the commission shall be personally liable on the contracts of the commission and no member, alternate member, or agent of the commission shall be responsible individually in any way to any producer or any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal or agent, except for his or her own individual acts of dishonesty or crime. No member or alternate member shall be held responsible individually for any act or omission of any other member or alternate member of the commission. The liability of the members and alternate members shall be several and not joint, and no member or alternate member shall be liable for the default of any other member or alternate member.
ARTICLE 4. Powers and Duties of the Commission [79651. - 79668.]
The powers and duties of the commission include, but are not limited to, all of those contained in this article.
The commission may adopt, amend, and repeal bylaws, rules, regulations, orders, and operating procedures necessary to carry out this chapter, including regulations governing appeals from actions taken by the commission pursuant to any of its regulations or operating procedures. These actions of the commission shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
The commission may administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, the proper or advisable effectuation of this chapter.
The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers have the powers and duties delegated to them by the commission.
The commission may employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter. The commission may retain a management firm or the staff from any board, commission, or agency of the state or federal government to perform the functions prescribed by this section under the control of the commission. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that he or she determines is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.
The commission may fix the compensation for all employees of the commission.
The commission may appoint committees composed of both board members and nonmembers of the commission to advise the commission in carrying out this chapter.
The commission may establish offices and incur expenses, enter into any and all contracts and agreements, including contracting in its name to receive or render services in formulating and conducting plans and programs, create liabilities, and borrow funds in advance of receipt of assessments as may be necessary, in the opinion of the commission, for the proper administration and enforcement of this chapter and the performance of its duties.
The commission shall keep accurate books, records, and accounts of all its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all producers and a copy of the summary shall also be submitted to the department. In addition, the secretary may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.
The commission may educate and instruct beekeepers, the general public, and government on all matters concerning the health and welfare of honeybees and the beekeeping industry.
The commission may conduct market surveys and analyses, and present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the health and welfare of bees, and the beekeeping industry, and on matters that affect this chapter, to the extent permitted by federal law.
The commission may conduct, and contract with others to conduct, research, including the study, analysis, accumulation, and dissemination of information obtained from that research or otherwise, which the commission deems will or may benefit the health and welfare of honeybees and the beekeeping industry.
The commission may accept contributions or matching private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies, for purposes of carrying out this chapter.
The commission may publish and distribute, without charge, bulletins or other communications for the dissemination of information to beekeepers.
The commission shall establish an assessment rate to defray the operating costs of the commission.
The commission shall adopt an annual budget according to generally accepted accounting practices. The secretary shall concur in the adoption of the budget prior to the encumbrance of funds, except for encumbrances necessary to pay the compensation of employees of the commission.
The commission shall submit to the secretary, for his or her concurrence, an annual statement of contemplated activities authorized pursuant to this chapter.
The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
ARTICLE 5. Implementation and Voting Procedures [79671. - 79678.]
Within 30 days after the effective date of this chapter, the secretary shall issue a public notice that the department is preparing a list of beekeepers who are eligible to vote on the implementation of this chapter. The notice shall indicate that beekeepers eligible to vote in the implementation referendum must register with the department. The notice shall be placed in appropriate publications and shall include instructions on how to register.
Within 180 days after the effective date of this chapter, the secretary shall establish a list of local and out-of-state producers, who are eligible to vote on the implementation of this chapter.
The secretary shall require in the registration process that producers submit the names, mailing addresses, and number of colonies operated during the preceding marketing season and identify their district based on primary residence.
Any producer whose name does not appear on the secretary’s list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a producer and providing the required registration information specified in this section. Failure to be on the list does not exempt the producer from paying assessments under this chapter.
Any eligible producer may contact other eligible producers in a form and manner prescribed by the secretary. Subsequent to the implementation of this chapter and the establishment of the commission, the commission shall prescribe the form and manner by which eligible producers may contact other producers.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds that at least 30 percent of the total number of the producers from the list established by the secretary participate, and either of the following occurs:
Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting owned or operated a majority of the total quantity of colonies maintained in the preceding marketing season by all of the producers voting in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting owned or operated 65 percent or more of the total quantity of colonies maintained in the preceding marketing season by all of the producers voting in the referendum.
The secretary shall establish a period in which to conduct the referendum which shall not be less than 10 days or more than 60 days in duration and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in Section 79672, he or she shall so certify and give notice of the vote to all producers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in this article, he or she shall so certify and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one or more years after the previous vote has been taken.
Upon certification of the commission, the secretary shall contact all producers in a manner determined by the secretary for the purpose of nominating and electing persons to the commission. To be eligible for election to the commission, nominees shall present to the secretary a nomination petition.
Subsequent to the first selection of members of the commission, persons to be elected to the commission shall be selected pursuant to nomination and election procedures established by the commission with the concurrence of the secretary.
Prior to the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary an amount of funds determined necessary by the secretary to defray the expenses of preparing the necessary lists and information and conducting the vote. Any funds not used for this purpose shall be returned to the proponents of the commission who deposited the funds with the secretary. Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [79681. - 79685.]
The commission shall, not later than January 1 of each year, or as soon thereafter as possible, establish the assessment to be paid by the producers of 50 or more colonies for the marketing season.
The assessment shall be levied annually on all bee colonies in California on March 1 of each year and not be more than one dollar ($1) per colony.
All proprietary information obtained by the commission or the secretary from any source, including the names and addresses of producers, shall be confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter. Information on volume shipments, hive value, and any other related information required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission.
Every producer, including beekeepers exempt from the payment of assessments, shall keep a complete and accurate record of their total number of colonies used for commercial purposes. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be retained by the beekeeper for five years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.
Any assessment that is levied as provided in this chapter is a personal debt of every producer so assessed.
Any person who fails to pay any assessment within 30 days of the due date shall pay, in addition to his or her assessment fee, a penalty of 10 percent of the amount of the assessment determined to be past due and, in addition, interest on the unpaid balance at the rate of 1.5 percent per month.
In addition to any other penalty imposed, the commission may require any person who fails to pay any assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount and for a period of time specified by the commission as assurance that all payments to the commission will be made when due.
ARTICLE 7. Actions and Penalties [79691. - 79696.]
A civil penalty not exceeding one thousand dollars ($1,000) may be levied by the commission upon a person who willfully does any of the following:
Renders or furnishes a false report, statement, or record required by the commission.
Fails to render or furnish a report, statement, or record required by the commission.
Conducts himself or herself in any way to affect the shipment of pollination units, bees, honey, or hive products in order to avoid payment of assessments.
Secretes, destroys, or alters records required to be kept by this chapter.
The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for obtaining injunctive relief or specific performance, relating to this chapter and the rules and regulations adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Sections 526 and 527 of the Code of Civil Procedure is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding beekeeping until there is full compliance with, and satisfaction of, the judgment.
Upon a favorable judgment for the commission, the court may order that the commission be reimbursed for reasonable attorney’s fees and other actual related costs. Venue for these actions is at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any penalty or other remedy that is prescribed under this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the alleged violation.
The commission is not required to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [79701. - 79705.]
In the fifth year of operation of this chapter and every fifth year thereafter, between January 1 and December 31, the secretary shall hold a public hearing, after providing proper notice to all persons subject to this chapter and any other persons or entities who have requested, in writing, notice of the hearing, to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among the persons assessed under this chapter regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum to be conducted among producers to determine whether the operations of this chapter shall be reapproved and continued in effect.
If the secretary finds after conducting a hearing that no substantial question exists or, if a reapproval referendum is required, that a majority of the eligible producers voting in the referendum voted in favor of continuing the operations of this chapter, the secretary shall so certify and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the current marketing season. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 79704.
Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the commission be suspended. Any suspension shall not become effective until the expiration of the current marketing season.
The secretary shall, upon receipt of a recommendation, or may, after a public hearing to review a petition filed with him or her requesting such suspension, signed by 15 percent of the producers by number who owned and operated not less than 15 percent of the total quantity of colonies maintained in the immediately preceding marketing season, cause a referendum to be conducted among the listed producers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not effectuated its declared purposes.
The secretary shall establish a referendum period, which shall not be less than 10 or more than 60 days in duration. The secretary may prescribe additional procedures necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of this chapter, if the secretary finds that at least 30 percent of the total number of producers from the list established by the secretary participate, and that either of the following occurs:
Sixty-five percent of the producers who voted in the referendum voted in favor of suspension, and the producers so voting operated a majority of the total quantity of honeybee colonies owned or operated by those producers voting in the referendum.
A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting operated 65 percent or more of the total quantity of honeybee colonies owned or operated by those producers voting in the referendum.
After the effective date of suspension of this chapter and of the commission, the operations of the commission shall be concluded and all moneys held by the commission, and moneys collected by assessment and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding current marketing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the pro rata refund to those persons, any moneys remaining and any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program or used to fund activities related to the subject matter of this chapter.
Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all producers affected by the suspension whose names and addresses are on file.
CHAPTER 29. Olive Oil Commission of California [79800. - 79902.]
ARTICLE 1. Declarations and General Provisions [79800. - 79806.]
The production of olives for processing into olive oil and marketing of the olive oil constitutes an important industry of this state which provides substantial and necessary revenues for the state and employment for its citizens.
The establishment of the commission is necessary for the efficient creation and management of the activities authorized in this chapter. The commission is also necessary to enhance the competitiveness of the industry within the state, national, and international marketplace.
The maintenance of the industry in California is necessary to ensure a continuous supply of olives and the resulting olive oil and to ensure the needed levels of income are maintained for those engaged in the production of olives for processing into olive oil and the marketing of olive oil.
The production of olives for processing into olive oil and the marketing of olive oil produced in this state is hereby declared to be a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the activities specified in this chapter the opportunity to avail themselves of the benefits of collective action in the broad fields of olive oil research, grades and labeling standards, and public education.
No action taken by the commission, or by any individual in accordance with this chapter or with rules and regulations adopted under this chapter, shall be deemed a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any rule of statutory or common law against monopolies or combinations in restraint of trade.
It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of the particular industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to, and constitutes the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 2. Definitions [79811. - 79824.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Olive oil” means the oil obtained solely from the fruit of the olive tree (Olea europea L.) which is produced in California for commercial purposes.
“Olives” means fruit of the olive tree (Olea europea L.) that are processed into olive oil.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the Olive Oil Commission of California.
“Districts” consist of the following:
District 1 consists of the Counties of Butte, Del Norte, Glenn, Humboldt, Lassen, Modoc, Plumas, Shasta, Siskiyou, Tehama, and Trinity.
District 2 consists of the Counties of Amador, Colusa, El Dorado, Lake, Marin, Mendocino, Napa, Nevada, Placer, Sacramento, Sierra, Solano, Sonoma, Sutter, Yolo, and Yuba.
District 3 consists of the Counties of Alameda, Calaveras, Contra Costa, Fresno, Imperial, Inyo, Kern, Kings, Los Angeles, Madera, Mariposa, Merced, Mono, Monterey, Orange, Riverside, San Benito, San Bernardino, San Diego, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Stanislaus, Tulare, Tuolumne, and Ventura.
The commission board of directors shall periodically determine whether the olive oil acreage in any of the districts varies by more than 20 percent from the olive oil acreage in other districts and draw new district lines in the event a variance exists. This action shall be approved by a two-thirds vote of the commission board of directors.
The boundaries of a district may be changed and districts may be added or eliminated by a two-thirds vote of the commission board of directors, which is concurred in by the secretary, if notice is provided to all persons subject to this chapter prior to the action. The boundaries need not coincide with county lines.
“Ex officio members” are nonvoting members of the commission board of directors.
“Handle” means to engage in the business of a handler.
“Handler” means a person who engages, in this state, in the processing or milling of olives into olive oil that the handler has produced, or purchased or acquired from an olive producer, or that toll processes or mills olives on behalf of an olive producer, whether as owner, agent, employee, broker, or otherwise.
When the handler is a corporation or a limited liability company, all of the directors, officers, managers, and members of the corporation or limited liability company in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments to which a corporate handler or a handler that is a limited liability company may be subject pursuant to this chapter shall include identical liability upon each individual director, officer, manager, or member of the corporation or limited liability company.
“Market” or “marketing” means to sell olive oil into commercial channels of trade.
“Marketing season” or “fiscal year” are synonymous terms and mean the period beginning July 1 of any year and extending through June 30 of the following year.
“Producer” means a person that produces or causes to be produced olives that are processed or toll processed into olive oil in the amount of 5,000 gallons or more during the marketing season and that shall, upon request of the commission, provide proof of commodity sale.
“Secretary” means the Secretary of Food and Agriculture.
“Advisory committee” means a committee appointed by the secretary from applications received from persons that produce or cause to be produced olives that are processed into less than 5,000 gallons of olive oil during the marketing season.
“Toll processor” means to process or mill olives into olive oil on behalf of a producer.
ARTICLE 3. Olive Oil Commission of California [79831. - 79846.]
There is in the state government the Olive Oil Commission of California. Except as provided in subdivision (c), the commission board of directors shall be composed of the following:
Six producers, two from each district.
Three handlers, one from each district.
One public member who shall be appointed to the commission board of directors by the secretary from nominees recommended by the commission board of directors.
The chair of the advisory committee.
The secretary and other appropriate persons as determined by the commission board of directors shall be ex officio members.
The commission board of directors may modify the number of producers and handlers who serve on the commission board of directors by a two-thirds vote that is concurred in by the secretary, if proper notice is provided to all persons subject to this chapter before the action.
An advisory committee shall meet periodically to review issues affecting the purposes of this chapter and shall advise the commission board of directors. The advisory committee shall consist of seven members who shall each serve three-year terms. The chair of the advisory committee shall be selected by the members.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until such time as the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.
Actions of the commission in violation of the secretary’s written notice shall be without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that he or she determines are not in the public interest or are in violation of this chapter, and his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and may make recommendations that will make those activities or functions acceptable to the secretary.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities under this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Except for the ex officio members of the commission board of directors, each member of the commission board of directors shall have an alternate member elected in the same manner as the member. An alternate member, in the absence of the member for whom he or she is an alternate, shall serve in place of the member. An alternate member may also serve in place of any other absent member of the same classification, producer or handler, if the member’s alternate is also absent. However, an alternate member may not serve in place of more than one absent member at a meeting. An alternate member serving in place of a member shall have and be able to exercise all rights, privileges, and powers of the member when serving. In the event of death, removal, resignation, or the disqualification of a member, the alternate for the member, or another alternate of the same classification if the alternate member for the member is absent, shall act as the member until a qualified successor is elected.
The chair of the advisory committee shall designate a member of the advisory committee to serve as an alternate in place of the chair in the chair’s absence. An alternate advisory committee member serving in the place of the chair shall have and be able to exercise all rights, privileges, and powers of the chair when serving.
Any vacancy on the commission board of directors, including, but not limited to, the failure of any person elected or appointed to the commission board of directors as a member or alternate member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled by the election of another person, or appointment in the case of a public member, for the unexpired portion of the term, with elected positions to be filled by a majority vote of the commission board of directors. However, the person elected or appointed shall fulfill all the qualifications set forth in this article as required for the office he or she is to occupy. The qualifications of any person to fill a vacancy shall be certified in writing to the secretary. The secretary shall notify the commission if he or she determines that the person is not qualified.
A producer member or his or her alternate on the commission board of directors shall be an individual, partner, or employee of a producer who has a financial interest in producing, or causing to be produced, olives for processing into olive oil. The producer member or his or her alternate shall be in compliance with this section during the entire term of his or her office.
The public member, or his or her alternate on the commission board of directors, shall have all the powers, rights, and privileges of any other member on the commission board of directors. The public member shall not have any financial interest in the production or processing of olives or the marketing of olive oil but may be an individual who provides services to individuals who do have a financial interest. The public member or his or her alternate shall be in compliance with this section during the entire term of his or her office.
Except as provided in paragraphs (1) and (2), the term of office of all members of the commission board of directors and their alternates, except any ex officio member, shall be three years from the date of their election and until their successors are elected.
Of the first producer members, one from each district shall serve two years and one from each district shall serve three years.
Of the first handler members, one shall serve one year, one shall serve two years, and one shall serve three years.
The determination of the term of each member shall be made by lot at the time of election.
An alternate shall serve the same term as the member for whom he or she serves as alternate.
The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
A quorum of the commission board of directors is a majority of the members authorized to vote. Except as otherwise provided in this chapter, the vote of a majority of these members present at a meeting at which there is a quorum shall constitute an act of the commission.
The secretary or his or her representatives shall be notified and may attend each meeting of the commission board of directors and any meetings of a committee established by the commission. However, the secretary is not entitled to attend an executive session of the commission board of directors called for the purpose of discussing potential or actual litigation against the department.
A member of the commission board of directors or of any committee established by the commission, which may include nonmembers of the commission board of directors, shall not receive a salary. Except for ex officio government members, a member may receive reasonable and necessary traveling expenses and meal allowances, as established by the commission board of directors, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.
If the secretary is required to concur in a decision of the commission, he or she shall indicate his or her response within 15 working days from notification of the decision. The response may be a request that additional information be provided.
All moneys received by any person from assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks designated by the commission board of directors and shall be disbursed by order of the commission board of directors through an agent or agents designated for that purpose. Any authorized agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in the state, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The state shall not be liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. Members and alternate members of the commission board of directors, employees, and agents of the commission shall not be personally liable for the contracts of the commission, and members and alternate members of the commission board of directors, and employees of the commission shall not be responsible individually in any way to a producer, handler, or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. Members and alternate members of the commission board of directors shall not be held responsible individually for any act or omission of any other member or alternate member. The liability of the members and alternate members of the commission board of directors shall be several and not joint, and a member or alternate member shall not be liable for the default of any other member or alternate member.
ARTICLE 4. Powers and Duties [79851. - 79851.]
The powers and duties of the commission board of directors include, but are not limited to, all of the following:
Adopt and from time to time alter, rescind, modify, and amend bylaws, rules, and orders, and recommend regulations in accordance with Article 9 (commencing with Section 79901) for carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, order, or recommended regulation. These actions are not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
Administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or determined reasonably necessary for, proper or advisable effectuation of the purposes of this chapter.
Appoint its own officers from the members of the commission board of directors, including a chairperson, one or more vice chairpersons, and any other officers as it determines necessary. The officers have the powers and duties delegated to them by the commission board of directors.
Employ a person to serve at the pleasure of the commission as president and chief executive officer, and other personnel, including legal counsel, necessary to carry out this chapter. The commission may retain a management firm or staff from any board, commission, or committee of this state to perform the functions prescribed by this subdivision under control of the commission board of directors. If a person subject to this subdivision engages in conduct that the secretary determines to be in violation of this chapter, or is not in the public interest, the secretary shall notify the commission of the conduct and request that corrective, and if appropriate, disciplinary action, be taken by the commission board of directors. If the commission board of directors fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person subject to this subdivision.
Fix the compensation for all employees.
Appoint committees composed of both members and nonmembers of the commission board of directors to advise in carrying out this chapter.
Establish offices and incur expenses, invest funds, enter into contracts and agreements, and create liabilities and borrow funds in advance of receipt of assessments as determined necessary for the proper administration and enforcement of this chapter and the performance of its duties.
Keep accurate books, records, and accounts of all of its dealings, which is subject to an annual audit by an auditing firm selected by the commission board of directors with the concurrence of the secretary. The audit shall be made a part of an annual report to all producers of olives and handlers subject to this chapter, and, notwithstanding Sections 9795 and 10231.5 of the Government Code, copies of the audit shall be submitted to the Legislature and the department. In addition, the secretary may, as he or she determines necessary, conduct, or cause to be conducted, a fiscal and compliance audit of the commission.
Present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the purposes of this chapter.
Make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements determined to be necessary for the purposes specified in this chapter.
Conduct, and contract with others to conduct, research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere for purposes described in this chapter. In connection with the research, accept contributions of, or to match, private, state, or federal funds that may be available for these purposes, and to employ or make contributions of funds to other persons or state or federal agencies conducting the research.
Collect information and publish and distribute to producers a bulletin or other communication for dissemination of information relating to this chapter.
Establish an assessment rate to defray operating costs.
Establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of funds, except for disbursements made pursuant to subdivision (e).
Submit to the secretary for his or her concurrence, an annual statement of contemplated activities authorized under this chapter.
Investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
Engage in activities and administer any program authorized in Article 9 (commencing with Section 79901).
Prescribe the form and manner by which proponents and opponents of the commission may contact producers so long as all expenses associated with the contacts are paid in advance.
Engage in communications with the public regarding activities authorized in this section.
ARTICLE 5. Implementation and Voting Procedures [79861. - 79868.]
Before February 1, 2014, the secretary shall establish a list of producers eligible to vote on the implementation of this chapter. In establishing the list, the secretary shall require that handlers of olives submit the names and mailing addresses of producers from whom olives are received, and the volume of olive oil resulting from each producer’s olives that was marketed during the preceding marketing season. The request for the information shall be in writing. The information shall be filed within 10 days following receipt of the written request for information.
A producer whose name does not appear on the secretary’s list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a producer. Failure to be on the list does not exempt the producer from paying assessments under this chapter.
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds at least 40 percent of the total number of producers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting produced a majority of the total quantity of olives processed into olive oil in the preceding marketing season by all of the producers voting in the referendum.
A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting produced 65 percent or more of the total quantity of olives processed into olive oil in the preceding marketing season by all of the producers voting in the referendum.
The secretary shall establish a period in which to conduct the referendum which shall not be less than 10 days or more than 60 days in duration and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a favorable vote has been given as provided in this article, he or she shall certify the vote and give notice of the vote to producers whose names and addresses are on file with the secretary.
If the secretary finds that a favorable vote has not been given as provided in this article, he or she shall certify the vote and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one or more years after the previous vote has been taken.
Upon certification of the commission, the secretary shall contact producers and handlers in a manner determined by the secretary for the purpose of nominating and electing persons to the commission board of directors.
Subsequent to the first election of members of the commission board of directors, or appointment in cases of a public member, producers and handlers shall be selected pursuant to nomination and election procedures established by the commission board of directors with the concurrence of the secretary.
Prior to the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary an amount of funds determined necessary by the secretary to defray the expenses of preparing the necessary lists and information and conducting the vote. Any funds not used for this purpose shall be returned to the proponents of the commission who deposited the funds with the secretary. Upon establishment of the commission, the commission board of directors may reimburse the proponents of the commission for any funds deposited with the secretary and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [79871. - 79878.]
The commission board of directors shall, no later than the beginning of each marketing season, or as soon thereafter as possible, establish the assessment to be paid by producers and collected by handlers for the marketing season. The assessment shall not be more than twenty-five cents ($0.25) per gallon for all olive oil handled as specified in this chapter and shall not exceed the reasonable costs of achieving the purposes of this chapter.
An assessment greater than the amounts in this section shall not be charged unless it is approved in accordance with the voting requirements provided in Section 79862.
This chapter does not apply to a producer’s olives processed into olive oil for his or her home use.
Handlers of olive oil shall keep a complete and accurate record of all olives purchased by them and olive oil handled by them with the name of the producer or producers whose olives were purchased or handled.
A producer who handles olive oil made from his or her olives shall keep a complete and accurate record of the olive oil handled.
The records described in subdivisions (a) and (b) shall contain information required by the commission. The records shall be preserved by the producer or handler for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand by the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from any source, including the names and addresses of producers, shall be confidential and shall not be disclosed except if required by court order in a judicial proceeding.
Information on volume shipments and any other related information that is required for reports to governmental agencies, financial reports to the commission on aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission.
The first handler of olive oil being assessed shall deduct the assessment from amounts paid by him or her to the producer, and shall be a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission board of directors. A producer who handles olive oil made from his or her olives shall pay an assessment directly to the commission at the time and in the manner prescribed by the commission board of directors.
Every handler shall be personally liable for the payment of the assessments collected from producers, and failure to collect the assessment from any producer shall not exempt the handler from liability.
An assessment that is levied as provided in this chapter is a personal debt of the producer assessed.
A person who fails to file a return or pay an assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be past due and, in addition, interest on the unpaid balance at the rate of 1.5 percent per month.
In addition to any other penalty imposed, the commission may require a person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount and for a period of time specified by the commission board of directors as assurance that all payments to the commission will be made when due.
ARTICLE 7. Actions and Penalties [79881. - 79887.]
A civil penalty not exceeding one thousand dollars ($1,000) may be levied by the commission upon a person who does any of the following:
Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of olive oil in order to avoid payment of assessments on the product’s highest value.
Fail to render or furnish a report, statement, or record required by the commission.
When engaged in the producing of olives for processing into olive oil or handling of olive oil, fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom he or she has received olive oil and the quantity so received.
Secrete, destroy, or alter records required to be kept by this chapter.
For purposes of according individuals aggrieved by its actions or determinations, the commission board of directors shall establish procedures for an informal hearing before the commission or before a committee of the commission established for this purpose. Appeals from the decision of the commission board of directors may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for obtaining injunctive relief or specific performance, relating to this chapter and the rules and regulations adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the production of olives or handling of olive oil until there is full compliance with, and satisfaction of, the judgment.
Upon a favorable judgment for the commission, the court may order that the commission be reimbursed for reasonable attorney’s fees and other related costs actually incurred. Venue for these actions is at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any penalty or other remedy that is prescribed under this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the alleged violation.
The commission shall not be required to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.
This chapter shall be liberally construed. If any section, clause, or part of this chapter is for any reason held unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the remaining portions of this chapter or the application of this chapter to any other persons or under any other circumstance.
The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [79891. - 79895.]
Five years after implementation of this chapter, the secretary shall hold a public hearing, after providing proper notice to persons subject to this chapter and any other persons or entities who have requested, in writing, notice of the hearing, to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among the producers assessed under this chapter regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum to be conducted among producers to determine whether the operation of this chapter shall be reapproved and continued in effect.
If the secretary finds after conducting a hearing that no substantial question exists or, if a reapproval referendum is required, that a majority of the eligible producers voting in the referendum voted in favor of continuing the operation of this chapter, the secretary shall certify the vote and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given, he or she shall certify the vote and declare the operation of this chapter suspended upon the expiration of the current marketing season. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 79894. A bond or security shall not be required for the referendum.
Following a hearing, and favorable referendum if required, the process specified in Section 79891 shall be conducted by the secretary every five years thereafter between July 1 and June 30 of the following year, unless a referendum is conducted as the result of a petition pursuant to Section 79893. In that case, the hearing, and referendum if required, shall be conducted every five years following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the commission board of directors that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the commission be suspended. Any suspension shall not become effective until expiration of the current marketing season.
The secretary shall, upon receipt of a recommendation, or may, after a public hearing to review a petition described in paragraph (2) requesting the suspension, cause a referendum to be conducted among the listed producers to determine if the operations of the commission shall be suspended. The secretary shall not hold a referendum as a result of a petition described in paragraph (2) unless the petitioner shows by the weight of evidence that the implementation of this chapter has not effectuated its declared purposes.
A petition filed requesting suspension of the commission shall be signed by at least 15 percent of the producers, by number, who also produce at least 15 percent of the total volume of olives marketed in the preceding marketing season.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of this chapter, if the secretary finds at least 40 percent of the total number of producers from the list established by the secretary participate, and that either of the following occurs:
After the effective date of suspension of this chapter, the operations of the commission shall be concluded and all moneys held by the commission, and moneys collected by assessment and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission board of directors finds that the amounts returnable are so small as to make impractical the computation and remitting of the pro rata refund to those persons, any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program or used to fund activities related to the subject matter of this chapter.
Upon suspension of the operation of this chapter, the commission shall mail a copy of the notice of suspension to producers affected by the suspension whose names and addresses are on file.
ARTICLE 9. Quality Standards [79901. - 79902.]
The commission board of directors may recommend to the secretary the adoption and amendment of olive oil grades and labeling standards, in accordance with the California Marketing Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of Division 21), unless otherwise specified in this article.
The commission board of directors shall serve as the advisory body to the secretary on all matters pertaining to this article.
CHAPTER 30. California Agave Commission [79911. - 79995.]
ARTICLE 1. Declarations and General Provisions [79911. - 79917.]
The cultivation of agave for processing into agave products and the marketing of agave and agave products constitute an important industry of this state, which provides substantial and necessary revenues for the state and employment for its residents.
The cultivation of agave in California is consistent with and supportive of California’s environmentally sensitive policies relating to sustainable farming practices, including water conservation, through the cultivation of drought tolerant crops.
The establishment of the commission is necessary for the efficient management of activities authorized in this chapter. The commission is also necessary to enhance the competitiveness of the industry within the state, national, and international marketplace.
The purposes of this chapter are hereby declared to be in the public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
The commission form of administration created by this chapter is uniquely situated to provide those engaged in the activities specified in this chapter the opportunity to avail themselves of the benefits of collective action in the broad fields of research, education, promotion, and marketing.
No action taken by the commission, or by any individual in accordance with this chapter or with bylaws or procedures established pursuant to this chapter, shall be deemed a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade.
It is the intent of the Legislature that members of the commission represent and further the interests of the agave industry and that this representation and furtherance serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the agave industry is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.
ARTICLE 2. Definitions [79921. - 79933.]
Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.
“Agave” means the species of plants in the genus Agave of the family Asparagaceae cultivated for their juice and fiber.
Agave cultivated solely for ornamental purposes is not subject to this chapter.
“Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.
“Commission” means the California Agave Commission.
“Cultivate” or “cultivated” means to plant, tend, harvest, or improve agave. Cultivated acreage does not include acreage removed from cultivation due to weather, disease, or other circumstances beyond the control of the grower.
“Ex officio members” means nonvoting members of the commission board of directors.
“Grower” means a person who commercially cultivates agave, or causes agave to be cultivated, not in a container and on two acres or more during the marketing season.
“Market” or “marketing” means to sell agave and agave products into commercial channels of trade.
“Marketing season” or “fiscal year” are synonymous terms and mean the period beginning April 1 of any year and extending through March 31 of the following year.
“Process” or “processing” means to engage in the business of a processor.
“Processor” means a person licensed to commercially process agave and who processes agave in an amount of more than three tons in the state in the preceding marketing season.
When the processor is a corporation or a limited liability company, all of the directors, officers, managers, and members of the corporation or limited liability company shall be treated as individuals when determining compliance with this chapter.
“Public member” means a person appointed to the commission board of directors pursuant to the procedures specified in this chapter.
“Secretary” means the Secretary of Food and Agriculture.
ARTICLE 3. California Agave Commission [79936. - 79952.]
There is in state government the California Agave Commission. Except as provided in this section, the commission board of directors shall be composed of six growers, two processors, and one public member. The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.
The commission board of directors may modify the number of members who serve on the commission board of directors by a two-thirds vote that is concurred in by the secretary, if proper notice is provided to all persons subject to this chapter before the action.
The secretary and other appropriate persons, as determined by the commission, shall be ex officio members of the commission.
The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary to not be in the public interest or to be in violation of this chapter.
If the commission refuses or fails to cease those activities or functions or to make corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the cessation or correction of activities or functions as required by the secretary have been accomplished by the commission.
Actions of the commission in violation of the secretary’s written notice shall be without legal force or effect. The secretary, to the extent feasible, shall issue the written notice before the commission enters into a contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.
Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, and the secretary’s reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and may make recommendations that will make those activities or functions acceptable to the secretary.
The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.
The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out their duties and responsibilities under this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.
Except for the ex officio members of the commission board of directors, each member of the commission board of directors shall have an alternate member elected in the same manner as the member. An alternate member, in the absence of the member for whom they are an alternate, shall serve in place of the member. An alternate member may also serve in place of any other absent member of the same classification if the member’s alternate is also absent. However, an alternate member may not serve in place of more than one absent member at a meeting. An alternate member serving in place of a member shall have, and may exercise, all rights, privileges, and powers of the member when serving. In the event of death, removal, resignation, or the disqualification of a member, the alternate for the member, or another alternate of the same classification if the alternate member for the member is absent, shall act as the member until a qualified successor is elected.
Any vacancy on the commission board of directors, including, but not limited to, the failure of any person elected or appointed to the commission board of directors as a member or alternate member to continue in their position due to a change in status making them ineligible to serve, or due to death, removal, or resignation, shall be filled by the election of another person, or appointment in the case of a public member, for the unexpired portion of the term, with elected positions to be filled by a majority vote of the commission board of directors. However, the person elected or appointed shall fulfill all the qualifications set forth in this article as required for the office they are to occupy. The qualifications of any person to fill a vacancy shall be certified in writing to the secretary. The secretary shall notify the commission if the secretary determines that the person is not qualified.
A grower member and their alternate on the commission board of directors shall be an individual, partner, or employee of a grower who has a financial interest in cultivating agave, or causing agave to be cultivated. The grower member and their alternate shall comply with this section during the entire term of their office in order to remain on the commission board of directors.
A processor member and their alternate on the commission board of directors shall be an individual, partner, or employee of a processor who has a financial interest in processing agave, or causing agave to be processed. The processor member and their alternate shall comply with this section during the entire term of their office in order to remain on the commission board of directors.
The public member and their alternate on the commission board of directors shall have all the powers, rights, and privileges of any other member on the commission board of directors. The public member shall not have any financial interest in the cultivating or processing of agave or the marketing of agave products but may be an individual who provides services to individuals who do have a financial interest. The public member and their alternate shall comply with this section during the entire term of their office.
The term of office of each member of the commission board of directors and their alternate, except an ex officio member, shall be three years from the date of their election or appointment and until their successor is elected.
An alternate shall serve the same term as the member for whom they serve as alternate.
The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements within the proceedings, records, and acts.
A quorum of the commission board of directors is a majority of the members authorized to vote. Except as otherwise provided in this chapter, the vote of a majority of these members present at a meeting at which there is a quorum shall constitute an act of the commission.
The secretary or their representatives shall be notified and may attend each meeting of the commission board of directors and any meetings of a committee established by the commission, except the secretary is not authorized to attend an executive session of the commission board of directors called for the purpose of discussing potential or actual litigation against the department.
A member of the commission board of directors or of any committee established by the commission, shall not receive a salary. Except for ex officio government members, members and alternates may receive reasonable and necessary traveling expenses and meal allowances, as established by the commission board of directors, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.
If the secretary is required to concur in a decision of the commission, the secretary shall indicate their response within 15 working days from notification of the decision. The response may be a request that additional information be provided.
All moneys received by a person from assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited into banks designated by the commission board of directors and shall be disbursed by order of the commission board of directors through an agent or agents designated for that purpose. Any authorized agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in the state, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).
The state shall not be liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. Members and alternate members of the commission board of directors, employees, and agents of the commission shall not be personally liable for the contracts of the commission, and members and alternate members of the commission board of directors and employees of the commission shall not be responsible individually in any way to a grower, processor, or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for their own individual acts of dishonesty or crime. Members and alternate members of the commission board of directors shall not be held responsible individually for any act or omission of any other member or alternate member. The liability of the members and alternate members of the commission board of directors shall be several and not joint, and a member or alternate member shall not be liable for the default of any other member or alternate member.
ARTICLE 4. Powers and Duties [79956. - 79956.]
The powers and duties of the commission board of directors shall include, but are not limited to, all of the following:
Adopt and from time to time alter, rescind, modify, and amend bylaws and procedures for carrying out this chapter, including procedures for related appeals. These actions shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
Administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or determined reasonably necessary for, proper or advisable effectuation of the purposes of this chapter.
Appoint officers from the members of the commission board of directors, including a chair, one or more vice chairs, and any other officers as it determines necessary. The officers shall have the powers and duties delegated to them by the commission board of directors.
Employ a person to serve at the pleasure of the commission as president and chief executive officer, and other personnel, including legal counsel, necessary to carry out this chapter. Alternatively, the commission may retain a management firm or staff from any board, commission, or committee of the state to perform the functions prescribed by this subdivision under control of the commission board of directors. If a person subject to this subdivision engages in conduct that the secretary determines to be in violation of this chapter, or is not in the public interest, the secretary shall notify the commission of the conduct and request that corrective, and if appropriate, disciplinary action, be taken by the commission board of directors. If the commission board of directors fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person subject to this subdivision.
Fix the compensation for all employees.
Appoint committees composed of members, alternates, and nonmembers of the commission board of directors to advise in carrying out this chapter.
Establish offices and incur expenses, invest funds, enter into contracts and agreements, and create liabilities and borrow funds in advance of receipt of assessments as determined necessary for the proper administration and enforcement of this chapter and the performance of its duties.
Keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission board of directors with the concurrence of the secretary. The audit shall be made a part of an annual report to all growers and processors subject to this chapter, and, notwithstanding Sections 9795 and 10231.5 of the Government Code, copies of the audit shall be submitted to the Legislature and the department. In addition, the secretary may, as they determine necessary, conduct, or cause to be conducted, a fiscal and compliance audit of the commission.
Present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the purposes of this chapter.
Make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements determined to be necessary for the purposes specified in this chapter.
Conduct, and contract with others to conduct, research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere for purposes described in this chapter that is primarily for the benefit of growers and processors. In connection with the research, accept contributions of, or to match, private, state, or federal funds that may be available for these purposes, and to employ or make contributions of funds to other persons or state or federal agencies conducting the research.
Collect information and publish and distribute to growers and processors, a bulletin or other communication for dissemination of information relating to this chapter.
Establish an assessment rate to defray operating costs.
Establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the secretary before the disbursement of funds, except for disbursements made pursuant to subdivision (e).
Submit to the secretary for their concurrence, an annual statement of contemplated activities authorized under this chapter.
Investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.
Prescribe the form and manner by which proponents and opponents of the commission may contact growers if all expenses associated with the contacts are paid in advance.
Engage in communications with the public regarding activities authorized in this section.
Conduct activities related to education, marketing, and promotion of agave and agave products.
ARTICLE 5. Implementation and Voting Procedures [79961. - 79968.]
No later than 90 days from the request of proponents of the commission, the secretary shall establish a list of growers and processors eligible to vote on the implementation of this chapter. The proponents shall provide the secretary with a list of growers and processors of agave to assist in identifying eligible voters. In establishing the list, the secretary shall require that (1) growers submit their names and mailing addresses and planted acreage, (2) processors submit their names and mailing addresses and the names and addresses of growers from whom agave is received, and the paid weight to the growers during the preceding marketing season. The request for the information shall be in writing. The information shall be filed with the secretary within 10 days following receipt of the written request for information.
A grower or processor whose name does not appear on the secretary’s list may have their name placed on the list by filing with the secretary a signed statement identifying themselves as a grower or processor. Failure to be on the list does not exempt the grower or processor from paying assessments under this chapter.
The commission shall not be established, and this chapter shall not be implemented, except as necessary to conduct an implementation referendum vote, until the secretary finds all of the following in a referendum vote conducted by the secretary:
At least 40 percent of the total number of growers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the growers who voted in the referendum voted in favor of establishing the commission, and those growers cultivated a majority of the total quantity of agave cultivated in the preceding marketing season by all of the growers voting in the referendum.
A majority of the growers who voted in the referendum voted in favor of establishing the commission, and those growers cultivated 65 percent or more of the total quantity of agave cultivated in the preceding marketing season by all of the growers voting in the referendum.
At least 40 percent of the total number of processors from the list established by the secretary pursuant to this article participate, and that either of the following occurs:
Sixty-five percent of the processors who voted in the referendum voted in favor of establishing the commission, and those processors processed a majority of the total quantity of agave processed in the preceding marketing season by all of the processors voting in the referendum.
A majority of the processors who voted in the referendum voted in favor of establishing the commission, and those processors processed 65 percent or more of the total quantity of agave processed in the preceding marketing season by all of the processors voting in the referendum.
The secretary shall establish a period in which to conduct the referendum that shall not be less than 10 days or more than 60 days in duration and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period.
Nonreceipt of a ballot shall not invalidate a referendum.
If the secretary finds that a referendum vote in favor of establishing the commission has occurred, as provided in this article, the secretary shall certify the vote and give notice of the vote to growers and processors whose names and addresses are on file with the secretary.
If the secretary finds that a referendum vote in favor of establishing the commission has not occurred, as provided in this article, the secretary shall certify the vote and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one or more years after the previous vote has been taken.
Upon the establishment of the commission, the secretary shall contact growers and processors in a manner determined by the secretary for the purpose of nominating and electing persons to the commission board of directors.
Subsequent to the first election of members of the commission board of directors, or appointment in cases of a public member, growers and processors shall be selected pursuant to nomination and election procedures established by the commission board of directors with the concurrence of the secretary.
Before the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary an amount of funds determined necessary by the secretary to defray the expenses of preparing the necessary lists and information and conducting the vote. Any funds not used for this purpose shall be returned to the proponents of the commission who deposited the funds with the secretary. Upon establishment of the commission, the commission board of directors may reimburse the proponents of the commission for any funds deposited with the secretary and for any legal expenses and costs incurred in establishing the commission.
ARTICLE 6. Assessments and Records [79971. - 79975.]
The commission board of directors shall, no later than the beginning of each marketing season, or as soon thereafter as possible, establish assessments to be paid by growers and processors for the marketing season.
The assessment for growers that cultivate 2 to 10, inclusive, acres of agave for the marketing season shall not exceed one thousand dollars ($1,000) and may be levied using a sliding scale. The assessment for growers that cultivate more than 10 acres of agave for the marketing season shall not exceed fifty thousand dollars ($50,000) and may be levied using a sliding scale.
The assessment for processors that process 3 to 10, inclusive, tons of agave for the marketing season shall not exceed one thousand dollars ($1,000) and may be levied using a sliding scale. The assessment for processors that process more than 10 tons of agave for the marketing season shall not exceed fifty thousand dollars ($50,000) and may be levied using a sliding scale.
An assessment greater than the amounts established pursuant to this section shall not be charged unless it is approved in accordance with the voting requirements provided in Section 79962.
The assessment shall not exceed the reasonable costs of achieving the purposes of this chapter.
Processors of agave shall keep a complete and accurate record of all agave processed by them with the names of the growers whose agave was processed.
Growers who process agave that they have cultivated shall keep a complete and accurate record of the agave processed.
Growers shall, upon request of the commission, provide proof of commodity sale.
The records described in subdivisions (a) and (b) shall contain information required by the commission. The records shall be preserved by growers and processors for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand by the commission or its duly authorized agent.
All proprietary information obtained by the commission or the secretary from any source, including the names and addresses of growers and processors, shall be confidential and shall not be disclosed except if required by court order in a judicial proceeding.
Information on volume shipments and any other related information that is required for reports to governmental agencies, financial reports to the commission on aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission.
Growers and processors of agave that pay the assessment shall be trustees of the assessed funds until they are paid to the commission at the time and in the manner prescribed by the commission board of directors. Growers who process agave that they have cultivated shall be responsible for paying both assessments directly to the commission at the time and in the manner prescribed by the commission board of directors.
Every grower and processor shall be personally liable for the payment of the assessments owed to the commission.
ARTICLE 7. Actions and Penalties [79981. - 79988.]
A person who fails to file a return or pay an assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be past due and, in addition, interest on the unpaid balance at the rate of 1.5 percent per month.
In addition to any other penalty imposed, the commission may require a person who fails to pay an assessment or related charge pursuant to this chapter to furnish and maintain a surety bond in a form and amount and for a period of time specified by the commission board of directors as assurance that all payments to the commission will be made when due.
A civil penalty not exceeding one thousand dollars ($1,000) may be levied by the commission on any person who does any of the following:
Willfully render or furnish a false report, statement, or record required by the commission, or in any way avoids the payment of an assessment.
Fail to render or furnish a report, statement, or record required by the commission.
When engaged in cultivating agave for processing into agave products, fails or refuses to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom agave was received and the quantity received.
Secrete, destroy, or alter records required to be kept by this chapter.
For purposes of according individuals aggrieved by its actions or determinations, the commission board of directors shall establish procedures for an informal hearing before the commission or before a committee of the commission established for this purpose. Appeals from the decision of the commission board of directors may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.
The commission may commence civil actions and use all remedies provided in law or equity for the collection of assessments and civil penalties, and for obtaining injunctive relief or specific performance, relating to this chapter and the procedures adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other procedures of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.
A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.
Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding the cultivating or processing of agave until there is full compliance with, and satisfaction of, the judgment.
Upon a favorable judgment for the commission, the court may order that the commission be reimbursed for reasonable attorney’s fees and other related costs actually incurred. Venue for these actions is at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.
Any action by the commission for any penalty or other remedy that is prescribed under this chapter shall be commenced within two years from the date of discovery of the alleged violation. An action against the commission by a person shall be commenced within two years from the date of the alleged violation.
The commission shall not be required to allege or prove that an adequate remedy at law does not exist in any action brought pursuant to this chapter.
This chapter shall be liberally construed.
The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
The termination of the operation of the commission and the implementation of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.
ARTICLE 8. Continuation or Suspension and Termination [79991. - 79995.]
Five years after implementation of this chapter, the secretary shall hold a public hearing, after providing proper notice to persons subject to this chapter and any other persons or entities who have requested, in writing, notice of the hearing, to determine whether the commission shall continue to operate and this chapter shall continue to be implemented.
If the secretary finds after the hearing that no substantial question exists among the growers and processors assessed pursuant to this chapter regarding whether the commission shall continue to operate, the secretary shall certify the finding and this chapter shall continue to be implemented.
If the secretary finds after the hearing that a substantial question exists among the growers and processors assessed pursuant to this chapter regarding whether the commission shall continue to operate, the secretary shall conduct a referendum among growers and processors to determine whether the operation of the commission shall be terminated, in accordance with both of the following:
The commission shall continue to operate unless the secretary determines from the referendum that a majority of the eligible growers and a majority of the eligible processors voting in the referendum voted in favor of terminating the commission.
If the secretary finds that a vote to terminate the operation of the commission has been given, the secretary shall certify the vote and declare the implementation of this chapter is suspended upon the expiration of the current marketing season. Thereupon, the operation of the commission shall be concluded and funds distributed in the manner provided in Section 79994. A bond or security shall not be required for the referendum.
Following a hearing, or a referendum resulting in a vote to continue the operation of the commission if required, the process specified in Section 79991 shall be conducted by the secretary every five years thereafter between April 1 and March 31 of the following year, unless a referendum is conducted as the result of a petition pursuant to Section 79993. In that case, the hearing, and referendum if required, shall be conducted every five years following the industry petitioned referendum.
Upon a finding by a two-thirds vote of the commission board of directors that the commission has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the operation of the commission be suspended. Any suspension shall not become effective until expiration of the current marketing season.
The secretary shall, upon receipt of a recommendation, or may, after a public hearing to review a petition described in paragraph (2) requesting the suspension, cause a referendum to be conducted among the listed growers and processors to determine if the operation of the commission shall be suspended. The secretary shall not hold a referendum as a result of a petition described in paragraph (2) unless the petitioner shows by the weight of evidence that the implementation of this chapter has not effectuated its declared purposes.
A petition filed requesting suspension of the operation of the commission shall be signed by at least 15 percent of the growers and at least 15 percent of the processors, by number, who also cultivate and process at least 15 percent of the total volume of agave in the preceding marketing season.
The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of the commission if the secretary finds both of the following:
Sixty-five percent of the growers that voted in the referendum voted in favor of suspension, and the growers so voting grew a majority of the total quantity of agave cultivated in the preceding marketing season by all of the growers voting in the referendum.
A majority of the growers that voted in the referendum voted in favor of suspension, and the growers so voting grew 65 percent or more of the total quantity of agave cultivated in the preceding marketing season by all of the growers voting in the referendum.
Sixty-five percent of the processors that voted in the referendum voted in favor of suspension, and the processors so voting processed a majority of the total quantity of agave processed in the preceding marketing season by all of the processors voting in the referendum.
A majority of the processors that voted in the referendum voted in favor of suspension, and the processors so voting processed 65 percent or more of the total quantity of agave processed in the preceding marketing season by all of the processors voting in the referendum.
After the effective date of suspension of the operation of the commission, the operation of the commission shall be concluded and all moneys held by the commission, and moneys collected by assessment and not required to defray the expenses of concluding and terminating the operation of the commission, shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding marketing season. However, if the commission board of directors finds that the amounts returnable are so small as to make impractical the computation and remitting of the pro rata refund to those persons, any moneys remaining after payment of all expenses of winding up and terminating the operation shall be withdrawn from the approved depository and paid into a related state or federal program or used to fund activities related to the subject matter of this chapter.
Upon suspension of the operation of the commission, the commission shall mail a copy of the notice of suspension to growers and processors affected by the suspension whose names and addresses are on file.
DIVISION 23. CALIFORNIA DESERT NATIVE PLANTS [80001. - 80201.]
CHAPTER 1. General Provisions [80001. - 80006.]
This division shall be known and may be cited as the California Desert Native Plants Act.
It is the intent of the Legislature, in this division, to protect California desert native plants from unlawful harvesting on both public and privately owned lands. It is also the intent of the Legislature to provide the people of this state with the information necessary to legally harvest native plants so as to ultimately transplant those plants with the greatest possible chance of survival. It is the further intent of the Legislature to encourage public participation in implementing the safeguards established by this division and in evaluating the effectiveness and desirability of the safeguards.
This division is applicable only within the boundaries of the Counties of Imperial, Inyo, Kern, Los Angeles, Mono, Riverside, San Bernardino, and San Diego. The director may thereafter revise the boundaries of the areas of the state which shall be subject to this division after a public hearing required to be held pursuant to Section 80074 and upon receipt of a resolution approving the change of boundaries by the board of supervisors of the affected county.
Persons engaged in the production, storage, sale, delivery, or transportation of nursery stock pursuant to Part 3 (commencing with Section 6701) of Division 4 are not required to obtain a permit pursuant to this division, unless those activities involve the harvesting of native plants growing in a wild, uncultivated state.
Persons engaged in the production, storage, sale, delivery, or transportation of nursery stock pursuant to Part 3 (commencing with Section 6701) of Division 4 shall not receive any harvested native plants, unless each plant has securely and properly attached thereto a valid native plant tag and seal.
Persons engaged in the sale of nursery stock pursuant to Part 3 (commencing with Section 6701) of Division 4 shall maintain records of their receipts or purchases for sale or resale of any native plant. The records shall include the name and address of the person selling or delivering the plants and shall be subject to inspection by the commissioner or the director.
CHAPTER 2. Definitions [80051. - 80064.]
Unless the context otherwise requires, the definitions of this chapter govern the construction of this division.
“Landowner” includes the public agency administering any public lands within the areas subject to this division.
“Harvest” means to remove or cut and remove from the place where grown.
“Harvester” means a person who harvests a native plant.
“Director” means the Director of Food and Agriculture.
“Department” means the Department of Food and Agriculture.
“Tag” means a paper or cloth label that can be attached to a native plant or a commercial load by means of a string and a seal, which tag specifies, among other things, a serial number, type of plant, fee required, location of origin, date of removal, witnessing authority, applicant, destination, and proposed use, including, but not limited to, commercial processing or landscaping.
“Seal” means a metal, tamperproof clamp used to permanently affix the tag to a native plant.
“Resale” means native plants harvested, possessed, or transported with the intent to sell the plants for the ultimate purpose of landscaping or decoration, or both.
“Resale load” means native plants harvested, possessed, or transported for resale purposes.
“Native plant” means any tree, shrub, bulb, or plant or part thereof, except its fruit, named in this division as being subject to this division or added by the director pursuant to Section 80074, which is growing wild. “Native plant” includes any part of any tree of the following species, whether living or dead:
Olneya tesota (desert ironwood).
All species of the genus Prosopis (mesquites).
All species of the genus Cercidium (palos verdes).
“Commercial harvesting” means harvesting native plants for an ultimate use other than as landscaping or decorative material and with the plants’ tops or branches, or both, boughs, or limbs removed.
“Permit” means an application form to harvest native plants that has been filled out by the applicant and approved and officially endorsed by the commissioner or sheriff of the county wherein the native plants covered by the application are located.
“Wood receipt” means a receipt that is to accompany one or more cords of wood harvested under this division. The wood receipt shall contain information which specifies, among other things, a serial number, species of wood, fee required, location of origin, date of removal, witnessing authority, applicant, destination, and proposed use, including, but not limited to, commercial processing landscaping.
CHAPTER 3. Regulated Native Plants [80071. - 80075.]
The botanical names of the plants referred to in this chapter shall, in all cases, govern in the interpretation of this division.
The following native plants, or any parts thereof, may not be harvested except for scientific or educational purposes under a permit issued by the commissioner of the county in which the native plants are growing:
All species of Burseraceae family (elephant tree).
Carnegiea gigantea (sahuaro cactus).
Ferocactus acanthodes (barrel cactus).
Castela emoryi (crucifixion thorn).
Dudleya saxosa (panamint dudleya).
Pinus longaeva (bristlecone pine).
Washingtonia filifera (fan palm).
The following native plants, or any part thereof, may not be harvested except under a permit issued by the commissioner or the sheriff of the county in which the native plants are growing:
All species of the family Agavaceae (century plants, nolinas, yuccas).
All species of the family Cactaceae (cacti), except for the plants listed in subdivisions (b) and (c) of Section 80072 which may be harvested under a permit obtained pursuant to that section.
All species of the family Fouquieriaceae (ocotillo, candlewood).
All species of the genus Prosopis (mesquites).
All species of the genus Cercidium (palos verdes).
Acacia greggii (catclaw).
Atriplex hymenelytra (desert-holly).
Dalea spinosa (smoke tree).
Olneya tesota (desert ironwood), including both dead and live desert ironwood.
The fruit from the native plants listed in this section may be harvested without a permit.
The commissioner may establish limits on the quantity of desert ironwood which may be taken under any permit and on the number of permits for the taking of desert ironwood which may be issued. The commissioner may adopt such rules and regulations as may be necessary for the protection of the ironwood resource.
Notwithstanding the foregoing provisions of this section, the director may add desert ironwood to, or remove it from, the jurisdiction of this division pursuant to Section 80074.
After consultation with the Secretary of the Resources Agency and after a public hearing, the secretary may add to, or remove from, the jurisdiction of this division a native plant. A public hearing on native plants may be held at least once every 24 months in a county subject to this division and in a location that is convenient to a large segment of the public.
In deciding whether to call a public hearing, the secretary may consider a request from a public or private group, including concerned citizens, and the secretary shall convene such a hearing when requested by resolution of any county board of supervisors. The secretary may consider at the hearing which plants are in need of protection and whether the boundaries of the area to be protected should be changed pursuant to Section 80003.
Any native plant that is declared to be a rare, endangered, or threatened species by federal or state law or regulations, including, but not limited to, the Fish and Game Code, is exempt from this division.
CHAPTER 4. Enforcement Powers and Administrative Responsibilities [80101. - 80108.]
The commissioner or the sheriff of a county subject to this division shall issue, in accordance with this division, permits, wood receipts, tags, and seals for a fee as prescribed by the board of supervisors of the county where the native plants are located.
The fee shall not be less than one dollar ($1) per plant for all native plants, except as follows:
For Yucca brevifolia (Joshua tree), not less than two dollars ($2) per plant.
For trees, live or dead, mesquite, palo verde, or ironwood species of trees, cut or removed for wood, as provided in Section 80103, not less than one dollar ($1) per cord.
For Yucca Schidigera used for commercial harvesting, not less than three dollars ($3) per ton.
The fees shall cover the cost of issuing a permit and may cover other related costs, including, but not limited to, administration, enforcement, and research costs. The permit shall specify, among other things, the species of native plants which may be harvested, the area from which plants may be harvested, and the manner in which plants may be harvested.
No person, except as provided in this division, shall harvest, transport, offer for sale, or have in his or her possession any native plant, unless, at the time of harvesting, he or she has a valid permit or valid wood receipt therefor on his or her person, attaches the required tags and seals to the native plants, and exhibits the permit, wood receipt, and tags and seals upon request for inspection by any duly authorized agent of the commissioner or any peace officer as provided in this division. No wood receipt or tag and seal is valid unless it is issued with a valid permit and the permit bears the tag number or wood receipt number on its face.
Native plants which have been tagged and sealed, as provided in this section, may be transported under a California nursery stock certificate or a shipping permit.
Each permit authorizing the harvesting, transporting, or possessing of native plants, except trees cut or removed for wood as provided in Section 80103, shall be accompanied by a sufficient number of tags and seals. The permittee or his or her agent shall attach the tags and seals to the native plants at the time of harvesting and before transporting in such manner as prescribed by the commissioner of the county in which the native plants are located. After any native plant has been legally harvested and tagged or sealed as provided in this division, it is unlawful to remove the tag or seal until the plant has been transplanted into its ultimate site for landscaping or decoration. The tag or seal may be removed from the plant only by the commissioner or the ultimate owner of the plant, who shall retain the tag or seal as proof of ownership.
No permit or tag or seal is transferable by the permittee or his or her agent, nor shall it be used by anyone except that person to whom the permit or tag or seal was issued, and no refunds shall be made for the purchase thereof.
Every permittee is responsible for the acts of any other person or persons acting under any authority, express or implied, of the permittee.
Each permit authorizing the harvesting, transporting, or possessing of live or dead mesquite, palo verde, or ironwood species of trees which are harvested for wood, shall be accompanied by a wood receipt. Any required wood receipt shall be in the possession of the person harvesting, transporting, or possessing the wood.
No permit or wood receipt is transferable by the permittee or his or her agent, nor shall it be used by anyone other than the person to whom the permit or wood receipt was issued or his or her agent or employee, except that the wood receipt shall be transferred by the permittee or his or her agent or employee to the purchaser of the wood covered by the receipt as proof of ownership.
Any person in possession of a valid permit for the removal of dead plants or wood issued by the United States Forest Service, the National Park Service, or the Bureau of Land Management, or any person in compliance with appropriate federal regulations and policies allowing the removal of dead plants or wood from lands administered by the Bureau of Land Management, is not required to obtain a permit pursuant to this division for the removal or possession of those dead plants or wood.
The director may adopt necessary rules and regulations not in conflict with this division for the enforcement of its provisions.
The director or any of his or her duly authorized agents, any commissioner, or any peace officer is authorized and directed to enter in or upon any premises or other place, train, vehicle, or other means of transportation within or entering the state, which is suspected of containing or having present therein or thereon native plants in violation of this division, in order to examine permits and wood receipts and observe tags and seals.
When any power or authority is given by any provision of this division to any person, it may be exercised by any deputy, inspector, or agent duly authorized by that person. Any person in whom the enforcement of any provision of this division is vested has the power of a peace officer as to that enforcement, which shall include state or federal agencies with which cooperative agreements have been made by the department to enforce any provision of this division.
CHAPTER 5. Harvesting of Native Plants [80111. - 80121.]
Except as provided in this division, it is unlawful for any person to destroy, dig up, mutilate, or harvest any living native plant, or the living or dead parts of any native plant, except its fruit, without obtaining written permission from the landowner and a permit and any required wood receipts or tags and seals.
It is unlawful for any person to falsify any paper or document issued to give permission for any person to harvest a native plant specified in Section 80073, or to fail to comply with all of the conditions or stipulations of the permit.
The commissioner of the county wherein the plants are located may issue a permit to a scientific or educational institution to harvest a definite number of plants listed in Section 80072 for scientific or educational purposes, if permission is obtained from the landowner on whose property the plants are located.
Permits issued for the removal of native plants shall be valid only for a stated period of time to allow the permittee to remove the specific amount of plants or wood stated in the permit, or the period of time stated by the landowner as part of the landowner’s permission, whichever is shorter, but in no case for more than one year.
It is the intent of the Legislature that each permit or wood receipt shall be valid for the least period of time possible in which to accomplish the authorized purpose.
No person shall knowingly make any false statement on any application for permits, wood receipts, or tags and seals. The application shall contain all of the following information:
The name, address, and telephone number of the applicant.
The amount and species of native plants to be transported.
The name of the county from which the native plants are to be removed.
A description sufficient to identify the real property from which the native plants are to be removed, and such other information or documents as the issuing agency may require to identify the general boundaries of the property.
The name, address, and telephone number of each landowner from whose property the native plants are to be removed.
The applicant’s timber operator permit number, if the harvesting of the native plants is subject to the Z’berg-Nejedly Forest Practice Act of 1973 (Chapter 8 (commencing with Section 4511) of Part 2 of Division 4 of the Public Resources Code).
The proposed date or dates of the transportation.
The location of the office of the peace officer who will validate the tag or tags.
The destination of the native plants.
The ultimate use of the native plants, such as for use as landscaping or decorative material, or for use as a raw material in the manufacture or processing of a product.
Make, model, and license number of the transportation vehicle.
Such other information as may be required by the agency issuing the permit.
Every applicant shall, at the time of making the application, show his or her proof of ownership of the native plants. The application forms, tags, seals, and wood receipts shall be produced by the department, and distributed to the commissioner of each county subject to Section 80003.
The director or commissioner may establish specific cutting, harvesting, and plant care criteria which shall include the most favorable and practical horticultural methods and seasons to assure the survivability of the plants and to assure compliance with existing local, state, and federal regulations.
This division does not prevent any of the following:
The clearing of land for agricultural purposes, fire control measures, or required mining assessment work pursuant to federal or state mining laws.
The holding of a recreational event sanctioned by the Bureau of Land Management.
The clearing or removal of native plants from a canal, lateral ditch, survey line, building site, or road or other right-of-way by the landowner or his or her agent, if the native plants are not to be transported from the land or offered for sale and if the commissioner is given at least 10 days’ notice of any such activity.
This division does not apply to a public agency or to a publicly or privately owned public utility when acting in the performance of its obligation to provide service to the public. This section does not prevent the landowner or his or her agent from complying with any other federal, state, or local laws or regulations.
The commissioner may exempt the use of dead and down wood for camping or branding fires from the requirements of this division.
Except as provided in Section 80072, no provision of this division prohibits any person from harvesting or possessing, for purposes other than resale, five or fewer native plants or from cutting, removing, harvesting, transporting, or possessing, for purposes other than resale, any dead mesquite or palo verde in amounts less than one cord, from land owned by the person, or from land leased by the person when the landowner’s written permission to harvest has been obtained and is exhibited, or from land not owned by the person when the person exhibits written permission to harvest from the landowner. The written permission shall not be valid unless it includes a description of the land satisfying the requirements of Section 80114 and the address and telephone number of the landowner.
Persons harvesting five or fewer native plants, for purposes other than resale, and persons cutting, removing, harvesting, transporting, or possessing any dead mesquite or palo verde, for purposes other than resale, in amounts less than one cord shall not be required to obtain and exhibit any permits, tags and seals, or wood receipts.
Persons possessing six or more harvested native plants shall obtain and exhibit a tag and seal for the sixth native plant and for each additional native plant in his or her possession.
Each county may enact ordinances not inconsistent with this division to control commercial harvesting in that county.
The issuing agency shall collect fees for the issuance of permits, tags and seals and wood receipts under this division, except from a landowner moving native plants from one of his or her properties to another, if the plants are not to be offered for sale.
Any harvested native plant listed in Section 80072 or 80073, or added by the director pursuant to Section 80074, which is not exempt from the permit requirements of this division pursuant to Section 80118, found without a tag and seal securely and properly affixed thereto or for which the owner does not exhibit a tag and seal, or any mesquite or palo verde wood in the amount of one cord or more found in the possession of a person without a wood receipt, may be confiscated as evidence of a violation.
CHAPTER 6. Shipment of Plants [80151. - 80152.]
No person or common carrier shall transport, or receive or possess for transportation, any native plant or any wood, or part thereof, except its fruit or manufactured wood articles, that requires a permit, wood receipt, or tag and seal, unless the person offering the plant for shipment furnishes to the person or common carrier a valid permit therefor, and any required wood receipts, and has securely and properly attached thereto any required tag and seal. If for transportation outside of the state, the plant shall also bear a certificate of inspection by the department.
All native plant species or varieties subject to this division, when not grown in California and imported into this state, shall be declared at a California agricultural inspection station or an office of the department, and proceed to destination under quarantine orders issued by agents of the department employed at the station or office. Any person transporting any plant species or varieties subject to this division from outside the state into California shall have in his or her possession a valid bill of sale for those native plants, and such permits and tags as may be required by the state of origin, and shall produce the bill of sale as well as any permits and tags for inspection by any duly authorized person as described in this division or any peace officer of the state as a requirement for entry into the state of the native plants.
CHAPTER 7. Enforcement [80171. - 80175.]
A peace officer may, in the enforcement of this division, make arrests without warrant for a violation of this division which he or she may witness, and may confiscate native plants, or parts thereof when unlawfully harvested, transported, possessed, sold, or otherwise obtained in violation of this division.
A person violating any provision of this division is guilty of a misdemeanor punishable by a fine of not less than one thousand five hundred dollars ($1,500), nor more than two thousand five hundred dollars ($2,500), for each violation or by imprisonment in the county jail not to exceed one year, or both, and each violation constitutes a separate offense.
Upon conviction of a violation of this division, all permits issued to the person convicted shall be revoked and the permittee shall be required to surrender any unused tags and seals or wood receipts to the issuing agency and no new or additional permits shall be issued to the permittee for a period of one year from the date of conviction.
A second conviction shall be punishable by a fine of not less than three hundred dollars ($300), nor more than five thousand dollars ($5,000), for each violation, by imprisonment in a county jail for not more than one year, by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by both that fine and imprisonment, and each violation shall constitute a separate offense.
Upon the second conviction, all permits issued to the person convicted shall be revoked and the permittee shall be required to surrender any unused tags and seals or wood receipts to the issuing agency and no new or additional permits shall be issued to the permittee at any time in the future from the date of conviction.
The issuing agency may revoke any permit, tags, or seals issued for the purpose of harvesting for ultimate replanting if the permittee willfully fails to comply with all of the conditions or stipulations of the permit.
CHAPTER 8. Financial Provisions [80201. - 80201.]
All fees or moneys collected under this division shall be paid into the general fund of the county in which the permits, tags and seals, and wood receipts were issued.
DIVISION 24. INDUSTRIAL HEMP [81000. - 81015.]
Definitions.
For purposes of this division, the following terms have the following meanings:
“Approved state plan” means a state plan for California that is approved pursuant to Section 297B of the federal Agricultural Marketing Act of 1946 (added by Section 10113 of the federal Agriculture Improvement Act of 2018 (Public Law 115-334)) and in effect.
“Board” means the Industrial Hemp Advisory Board.
“Cultivar” means a variety of industrial hemp.
“Disposal” has the same meaning as defined in Section 990.1 of Title 7 of the Code of Federal Regulations.
“Established agricultural research institution” means an institution of higher education, as defined in Section 101 of the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1001), that grows, cultivates, or manufactures industrial hemp for purposes of agricultural or academic research.
“Hemp breeder” means an individual or a public or private institution or organization that is registered with the commissioner to develop cultivars intended for sale or research.
“Industrial hemp” or “hemp” means an agricultural product, whether growing or not, that is limited to types of the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, the resin extracted from any part of the plant, cannabinoids, isomers, acids, salts, and salts of isomers, with a delta-9 tetrahydrocannabinol concentration of no more than 0.3 percent on a dry weight basis.
“Industrial hemp program” means growth of industrial hemp pursuant to this division and, if in effect, an approved state plan.
“Measurement of uncertainty” means the parameter associated with the result of a measurement that characterizes the dispersion of the values that could reasonably be attributed to the particular quantity subject to measurement.
“Premises” has the same meaning as defined in subdivision (ap) of Section 26001 of the Business and Professions Code.
“Research plan” means a strategy devised by an established agricultural research institution, or applicant established agricultural research institution, detailing its planned approach to growing or cultivating hemp for academic or agricultural research.
“THC” means delta-9 tetrahydrocannabinol.
“Variety development plan” means a strategy devised by a hemp breeder, or applicant hemp breeder, detailing their planned approach to growing and developing a new cultivar for industrial hemp.
This section shall become operative as of the date on which a state plan for California is approved pursuant to Section 297B of the federal Agricultural Marketing Act of 1946 (added by Section 10113 of the federal Agriculture Improvement Act of 2018 (Public Law 115-334)).
There is in the department an Industrial Hemp Advisory Board. The board shall consist of 13 members, appointed by the secretary as follows:
Six of the board members shall be growers of industrial hemp that are registered pursuant to the provisions of this division.
Two of the board members shall be members of an established agricultural research institution.
One member of the board shall be a representative as provided by the California State Sheriffs’ Association and approved by the secretary.
One member of the board shall be a county agricultural commissioner.
Two members of the board shall be representatives of businesses that sell industrial hemp products.
One member of the board shall be a member of the public.
It is hereby declared, as a matter of legislative determination, that growers and representatives of industrial hemp product manufacturers and businesses appointed to the board pursuant to this division are intended to represent and further the interest of a particular agricultural industry, and that the representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that persons who are appointed to the board shall be subject to the conflict-of-interest provisions described in Sections 87100 and 87103 of the Government Code.
The term of office for a member of the board is three years. If a vacancy exists, the secretary shall, consistent with the membership requirements described in subdivision (a), appoint a replacement member to the board for the duration of the term.
A member of the board shall not receive a salary but may be reimbursed by the department for attendance at meetings and other board activities authorized by the board and approved by the secretary.
The board shall advise the secretary and may make recommendations on all matters pertaining to this division, including, but not limited to, industrial hemp seed law and regulations, enforcement, annual budgets required to accomplish the purposes of this division, and the setting of an appropriate assessment rate necessary for the administration of this division.
The board shall annually elect a chair from its membership and, from time to time, other officers as it deems necessary.
The board shall meet at the call of its chair or the secretary, or at the request of any four members of the board. The board shall meet at least once a year to review budget proposals and fiscal matters related to the proposals.
Except when grown by a registered established agricultural research institution or by a registered hemp breeder developing a new cultivar, industrial hemp shall be grown only if it is on the list of approved cultivars, or produced by clonal propagation of industrial hemp that is on the list of approved cultivars.
The list of approved cultivars shall include all of the following:
Industrial hemp cultivars that have been certified by member organizations of the Association of Official Seed Certifying Agencies, including, but not limited to, the Canadian Seed Growers’ Association.
Industrial hemp cultivars that have been certified by the Organization of Economic Cooperation and Development.
California varieties of industrial hemp cultivars that have been certified by a seed-certifying agency pursuant to Article 6.5 (commencing with Section 52401) of Chapter 2 of Division 18.
The department shall finalize the methodology and procedure to add, amend, or remove a cultivar from the list of approved cultivars and send the methodology and procedure to the Office of Administrative Law. The Office of Administrative Law shall file the methodology and procedure promptly with the Secretary of State without further review pursuant to Article 6 (commencing with Section 11349) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government Code. The methodology and procedure shall do all of the following:
Indicate that the methodology and procedure are adopted pursuant to this division.
State that the methodology and procedure are being transmitted for filing.
Request that the Office of Administrative Law publish a notice of the filing of the methodology and procedure and print an appropriate reference in Title 3 of the California Code of Regulations.
The department, in consultation with the board, may determine the manner in which the public is given notice of the list of approved cultivars, and any addition, amendment, or removal from that list.
Except for an established agricultural research institution subject to Section 81004.5 or a hemp breeder subject to Section 81004, and before cultivation, a grower of industrial hemp shall register with the commissioner of the county in which the grower intends to engage in industrial hemp cultivation.
The application shall include all of the following:
The name, physical address, and mailing address of the applicant.
The legal description, Global Positioning System coordinates, and map of the land area on which the applicant plans to engage in industrial hemp cultivation, storage, or both.
The approved cultivar to be grown, including the state or country of origin.
The application shall be accompanied by a registration fee, as determined pursuant to Section 81005.
A registration issued pursuant to this section shall be valid for one year, after which the registrant shall renew the registration and pay an accompanying renewal fee, as determined pursuant to Section 81005.
If the commissioner determines that the requirements for registration pursuant to this division are met and that the applicant is eligible to participate in the industrial hemp program, in accordance with Sections 81012 to 81014, inclusive, the commissioner shall issue a registration to the applicant.
A registrant that wishes to change or alter the land area on which the registrant conducts industrial hemp cultivation or storage, or both, shall, before any alteration or change, submit to the commissioner an updated registration with the legal description, Global Positioning System coordinates, and map specifying the proposed land change or alteration. Once the commissioner has received the change to the registration and the commissioner determines that the requirements pursuant to this division are met, the commissioner shall notify the registrant that it may cultivate industrial hemp on the changed or altered land area.
A registrant that wishes to change the cultivar grown shall submit to the commissioner the name of the new, approved cultivar to be grown. Once the commissioner has received the change to the registration and the commissioner determines that the requirements pursuant to this division are met, the commissioner shall notify the registrant that it may cultivate the new cultivar.
The commissioner shall transmit information collected under this section to the department no more than 10 business days after the date on which it is collected or the date of a change in registration status occurred.
The department shall submit the information described in paragraph (a) of Section 990.70 of Title 7 of the Code of Federal Regulations to the United States Department of Agriculture no more than 30 business days after the date on which it is collected or the date of a change in registration status occurred.
The department and the commissioner shall retain information collected under this section for at least three years after collecting or receiving it.
Except when grown by an established agricultural research institution subject to Section 81004.5, and before cultivation, a hemp breeder shall register with the commissioner of the county in which the hemp breeder intends to engage in industrial hemp cultivation.
The application shall include all of the following:
The name, physical address, and mailing address of the applicant.
The legal description, Global Positioning System coordinates, and map of the land area on which the applicant plans to engage in industrial hemp cultivation, storage, or both.
A variety development plan, which shall include all of the following:
If a new cultivar is to be certified by a seed-certifying agency, the name of the seed-certifying agency that will be conducting the certification.
The industrial hemp varieties that will be used and, if applicable, how those varieties will be used in the development of a new cultivar.
A plan for testing a representative sample of the plants grown.
The measures that will be taken to destroy or dispose of any plants with THC concentrations that test above 0.3 percent.
The measures that will be taken to prevent the unlawful use of industrial hemp under this division.
A procedure for the maintenance of records documenting the development of the new cultivar.
The application shall be accompanied by a registration fee, as determined pursuant to Section 81005.
A registration issued pursuant to this section shall be valid for one year, after which the registrant shall renew its registration and pay an accompanying renewal fee, as determined pursuant to Section 81005.
If the commissioner determines that the requirements for registration pursuant to this division are met and that the applicant is eligible to participate in the industrial hemp program, in accordance with Sections 81012 to 81014, inclusive, the commissioner shall issue a hemp breeder registration to the applicant.
A registrant that wishes to change or alter the land area on which the registrant conducts industrial hemp cultivation or storage, or both, shall, before any alteration or change, submit to the commissioner an updated registration with the legal description, Global Positioning System coordinates, and map specifying the proposed land change or alteration. Once the commissioner has received the change to the registration and the commissioner determines that the requirements pursuant to this division are met, the commissioner shall notify the registrant that it may cultivate industrial hemp on the changed or altered land area.
A registrant that wishes to change the cultivar grown shall submit to the commissioner the name of the new, approved cultivar to be grown. Once the commissioner has received the change to the registration and the commissioner determines that the requirements pursuant to this division are met, the commissioner shall notify the registrant that it may cultivate the new cultivar.
A registrant developing a new cultivar who wishes to change any provision of the variety development plan shall submit to the commissioner the revised variety development plan. Once the commissioner has received the change to the registration and the commissioner determines that the requirements pursuant to this division are met, the commissioner shall notify the registrant that the registrant may cultivate under the revised variety development plan.
All records pertaining to the variety development plan shall be kept and maintained by the hemp breeder and be available upon request by the commissioner, a law enforcement agency, or a seed certifying agency.
The commissioner shall transmit information collected under this section to the department no more than 10 business days after the date on which it is collected or the date of a change in registration status occurred.
The department shall submit the information described in paragraph (a) of Section 990.70 of Title 7 of the Code of Federal Regulations to the United States Department of Agriculture no more than 30 business days after the date on which it is collected or the date of a change in registration status occurred.
The department and the commissioner shall retain information collected under this section for at least three years after collecting or receiving it.
Before cultivating hemp for agricultural or academic research, an established agricultural research institution shall register with the commissioner of the county in which it intends to cultivate.
The registration application shall include all of the following:
The name, physical address, and mailing address of the applicant.
The legal description, Global Positioning System coordinates, and map of the geographic area where the applicant plans to engage in hemp cultivation or storage, or both.
A research plan that shall include all of the following:
The hemp varieties that will be used and, if applicable, how those varieties will be used for purposes of agricultural or academic research.
A plan for testing a representative sample of the plants cultivated.
The measures that will be taken to destroy or dispose of any plants with THC concentrations that test above 0.3 percent.
A procedure for the maintenance of records documenting the agricultural or academic research.
A registration issued pursuant to this section shall be valid for one year, after which the registrant shall renew its registration if it will continue cultivating hemp beyond that term.
If the commissioner determines that the requirements for registration pursuant to this division are met and that the applicant is eligible to participate in the hemp program, in accordance with Sections 81012 to 81014, inclusive, the commissioner shall issue an established agricultural research institution registration to the applicant.
A registrant that wishes to change or alter the land area on which the registrant conducts hemp cultivation or storage, or both, shall, before any alteration or change, submit to the commissioner an updated registration with the legal description, Global Positioning System coordinates, and map specifying the proposed land change or alteration. Once the commissioner has received the change to the registration and the commissioner determines that the requirements pursuant to this division are met, the commissioner shall notify the registrant that it may cultivate hemp on the changed or altered land area.
A registrant conducting agricultural or academic research who wishes to change any provision of the research plan shall submit to the commissioner a revised research plan. Once the commissioner has received the revised research plan, and the commissioner determines that the requirements of this division are met, the commissioner shall notify the registrant that it may cultivate under the revised research plan.
All records pertaining to the research plan shall be kept and maintained by the established agricultural research institution and be available upon request by the commissioner or a law enforcement agency.
The commissioner shall transmit information collected under this section to the department no more than 10 business days after the date on which it is collected or the date of a change in registration status occurred.
The department shall submit the information described in paragraph (a) of Section 990.70 of Title 7 of the Code of Federal Regulations to the United States Department of Agriculture no more than 30 business days after the date on which it is collected or the date of a change in registration status occurred.
The department and the commissioner shall retain information collected under this section for at least three years after collecting or receiving it.
This section shall become operative as of the date on which a state plan for California is approved pursuant to Section 297B of the federal Agricultural Marketing Act of 1946 (added by Section 10113 of the federal Agriculture Improvement Act of 2018 (Public Law 115-334)).
Each registered established agricultural research institution, registered grower of industrial hemp, and registered hemp breeder shall report on its hemp production in the state and any changes to the location where it will produce hemp to the Farm Service Agency of the United States Department of Agriculture and shall provide, at minimum, all of the following information:
Street address and, to the extent practicable, geospatial location of the lot, parcel, greenhouse, building, or site of all locations in the state where hemp will be produced.
The acreage dedicated to the production of hemp, or greenhouse or indoor square footage dedicated to the production of hemp, for each location in the state where hemp will be produced.
The license or registration number associated with each location in the state where hemp will be produced.
The department shall establish a registration fee and appropriate renewal fee to be paid by growers of industrial hemp and hemp breeders, not including an established agricultural research institution, to cover the actual costs of implementing, administering, and enforcing the provisions of this division.
Fees established pursuant to subdivision (a) that are collected by the commissioners upon registration or renewal pursuant to Section 81003 or 81004, except for amounts retained pursuant to this subdivision, shall be forwarded, according to procedures set by the department, to the department for deposit into the Department of Food and Agriculture Fund to be used for the administration and enforcement of this division. A commissioner or the county, as appropriate, may retain the amount of a fee necessary to reimburse direct costs incurred by the commissioner in the collection of the fee.
The board of supervisors of a county may establish a reasonable fee, in an amount necessary to cover the actual costs of the commissioner and the county of implementing, administering, and enforcing the provisions of this division, except for costs that are otherwise reimbursed pursuant to subdivision (b), to be charged and collected by the commissioner upon registrations or renewals required pursuant to Section 81003 or 81004 and retained by the commissioner or the county, as appropriate.
Industrial Hemp Growth Limitations; Prohibitions; Imports; Laboratory Testing.
Except when grown by a registered established agricultural research institution or a registered hemp breeder, industrial hemp shall be grown in acreages of not less than one-tenth of an acre at the same time.
Clandestine cultivation of industrial hemp is prohibited. All plots shall have adequate signage indicating they are industrial hemp.
Industrial hemp shall not be cultivated on a premises licensed by the Department of Cannabis Control to cultivate or process cannabis. Industrial hemp, regardless of its THC content, that is cultivated on a premises licensed by the Department of Cannabis Control for cannabis cultivation shall be considered cannabis as defined in Section 26001 of the Business and Professions Code and subject to licensing and regulatory requirements for cannabis pursuant to Division 10 (commencing with Section 26000) of the Business and Professions Code.
Industrial hemp shall include products imported under the Harmonized Tariff Schedule of the United States (2013) of the United States International Trade Commission, including, but not limited to, hemp seed, per subheading 1207.99.03, hemp oil, per subheading 1515.90.80, oilcake, per subheading 2306.90.01, true hemp, per heading 5302, true hemp yarn, per subheading 5308.20.00, and woven fabrics of true hemp fibers, per subheading 5311.00.40.
Except when industrial hemp is grown by a registered established agricultural research institution and tested in accordance with an approved research plan or by a registered hemp breeder and tested in accordance with an approved variety development plan, a registrant that grows industrial hemp under this section shall, before the harvest of each crop and as provided below, obtain a laboratory test report indicating the THC levels of a random sampling of the dried flowering tops of the industrial hemp grown.
Sampling shall occur within the timeframe established by the department.
The sample collected for THC testing shall be taken with the grower or hemp breeder present. The department shall establish, by regulation, the sampling procedures, including all of the following:
The number of plants to be sampled per field, and any compositing of samples.
The portions of the plant to be sampled.
The plant parts to be included in a sample.
Additional procedures as necessary to ensure accuracy and the sanitation of samples and fields.
The sample collected for THC testing shall be accompanied by the registrant’s proof of registration.
The laboratory test report shall be issued by a laboratory approved by the department, using a department-approved testing method. The testing method shall use postdecarboxylation or similarly reliable methods for determining THC concentration levels. The laboratory test report shall indicate the percentage concentration of THC on a dry-weight basis, indicate the date and location of samples taken, and state the Global Positioning System coordinates and total acreage of the crop. If the laboratory test report indicates a percentage concentration of THC that is equal to or less than 0.3 percent, the words “PASSED AS CALIFORNIA INDUSTRIAL HEMP” shall appear at or near the top of the laboratory test report. If the laboratory test report indicates a percentage concentration of THC that is greater than 0.3 percent, the words “FAILED AS CALIFORNIA INDUSTRIAL HEMP” shall appear at or near the top of the laboratory test report. The laboratory test report shall also include an estimate of the measurement of uncertainty associated with the test results. A laboratory shall use appropriate, validated methods and procedures for all testing activities and estimates of the measurement of uncertainty.
If the laboratory test report indicates a percentage concentration of THC that is equal to or less than 0.3 percent, the laboratory shall provide the person who requested the testing not less than 10 original copies signed by an employee authorized by the laboratory and shall retain one or more original copies of the laboratory test report for a minimum of two years from its date of sampling.
If the laboratory test report indicates a percentage concentration of THC that is greater than 0.3 percent and does not exceed 1 percent, the registrant that grows industrial hemp shall submit additional samples for testing of the industrial hemp grown.
A registrant that grows industrial hemp shall destroy or dispose of the industrial hemp grown upon receipt of a first laboratory test report indicating a percentage concentration of THC that exceeds 1 percent or a second laboratory test report pursuant to paragraph (7) indicating a percentage concentration of THC that exceeds 0.3 percent but is less than 1 percent. If the percentage concentration of THC exceeds 1 percent, the destruction or disposal shall begin within 48 hours, and be completed within seven days, after receipt of the laboratory test report. If the percentage concentration of THC in the second laboratory test report exceeds 0.3 percent but is less than 1 percent, the destruction or disposal shall take place as soon as practicable, but no later than 45 days after receipt of the second test report.
A registrant that intends to grow industrial hemp and who complies with this section shall not be prosecuted for the cultivation or possession of marijuana as a result of a laboratory test report that indicates a percentage concentration of THC that is greater than 0.3 percent but does not exceed 1 percent.
A registered established agricultural research institution or a registered hemp breeder shall obtain laboratory results in accordance with its approved research plan or variety development plan. The secretary may authorize a registered established agricultural research institution or hemp breeder to cultivate or possess industrial hemp with a laboratory test report that indicates a percentage concentration of THC that is greater than 0.3 percent in accordance with its approved research plan or variety development plan if that cultivation or possession contributes to the development of types of industrial hemp that will comply with the 0.3 percent THC limit established in this division.
A registrant that grows industrial hemp shall retain an original signed copy of the laboratory test report for two years from its date of sampling, make an original signed copy of the laboratory test report available to the department, the commissioner, or law enforcement officials or their designees upon request, and shall provide an original copy of the laboratory test report to each person purchasing, transporting, or otherwise obtaining from the registrant that grows industrial hemp the fiber, oil, cake, or seed, or any component of the seed, of the plant.
As part of the registration program established pursuant to this division, the department may establish and carry out, by regulation, an agricultural pilot program pursuant to Section 7606 of the federal Agricultural Act of 2014 (7 U.S.C. Sec. 5940) in accordance with the purposes of that section.
This section shall remain operative only until the date on which a state plan for California is approved pursuant to Section 297B of the federal Agricultural Marketing Act of 1946 (added by Section 10113 of the federal Agriculture Improvement Act of 2018 (Public Law 115-334)), and as of January 1 of the following year is repealed.
Not later than January 1, 2019, or five years after the provisions of this division are authorized under federal law, whichever is later, the board, in consultation with the Hemp Industries Association, or its successor industry association, shall report the following to the Assembly and Senate Committees on Agriculture and the Assembly and Senate Committees on Public Safety:
The economic impacts of industrial hemp cultivation, processing, and product manufacturing in California.
The economic impacts of industrial hemp cultivation, processing, and product manufacturing in other states that may have permitted industrial hemp cultivation.
This division, and Section 221 shall become operative on January 1, 2017.
Before cultivating industrial hemp, an established agricultural research institution shall provide the Global Positioning System coordinates of the planned cultivation site to the commissioner of the county in which the site is located.
This section shall remain operative only until the date on which a state plan for California is approved pursuant to Section 297B of the federal Agricultural Marketing Act of 1946 (added by Section 10113 of the federal Agriculture Improvement Act of 2018 (Public Law 115-334)), and as of January 1 of the following year is repealed.
Enforcement of the approved state plan shall comply with Section 297B(e) of the federal Agricultural Marketing Act of 1946 (added by Section 10113 of the federal Agriculture Improvement Act of 2018 (Public Law 115-334)).
A grower of industrial hemp, established agricultural research institution, or hemp breeder that the secretary determines has violated a provision of this division listed in the approved state plan or an additional requirement listed pursuant to subdivision (b) of Section 81015, including, but not limited to, by failing to provide a legal description of the land on which industrial hemp is grown, failing to register as required, or exceeding the 0.3 percent THC limit established in this division, shall be subject to the following consequences:
For a negligent violation, as determined by the secretary, the consequences under state laws for a violation of this division shall be as follows:
If the violation is not a repeat violation subject to subparagraph (B), the grower of industrial hemp, established agricultural research institution, or hemp breeder shall comply with a corrective action plan, to be established by the secretary, that includes both of the following:
A reasonable date by which the grower of industrial hemp, established agricultural research institution, or hemp breeder shall correct the negligent violation.
A requirement that the grower of industrial hemp, established agricultural research institution, or hemp breeder shall periodically report to the secretary, for a period of at least the next two calendar years, on its compliance with this division or the approved state plan.
A grower of industrial hemp, established agricultural research institution, or hemp breeder that commits a negligent violation three times in a five-year period shall be ineligible to participate in the industrial hemp program for a period of five years beginning on the date of the finding of the third violation.
A grower of industrial hemp, established agricultural research institution, or hemp breeder shall not, as a result of a negligent violation, be subject to any criminal enforcement action by the state or a local government.
For a violation committed intentionally, or with recklessness or gross negligence, the secretary shall immediately report the grower of industrial hemp, established agricultural research institution, or hemp breeder to the Attorney General of the United States and the Attorney General of this state, as applicable.
This section shall become operative as of the date on which a state plan for California is approved pursuant to Section 297B of the federal Agricultural Marketing Act of 1946 (added by Section 10113 of the federal Agriculture Improvement Act of 2018 (Public Law 115-334)).
Any person convicted of a felony relating to a controlled substance under state or federal law before, on, or after January 1, 2020, shall be ineligible, during the 10-year period following the date of the conviction, to participate in the industrial hemp program.
On or before May 1, 2020, the secretary, in consultation with the Governor and the Attorney General, shall develop and submit to the United States Secretary of Agriculture a state plan, consistent with this division, pursuant to Section 297B of the federal Agricultural Marketing Act of 1946 (added by Section 10113 of the federal Agriculture Improvement Act of 2018 (Public Law 115-334)), including a certification that the state has the resources and personnel to carry out the practices and procedures described in clauses (i) to (iv), inclusive, of subparagraph (A) of paragraph (2) of subsection (a) of that section.
In an annex to the state plan, the secretary shall list the provisions of this division that are included in the state plan, and any additional requirements in the state plan, that shall be subject to enforcement pursuant to Section 81012.
DIVISION 25. Food Labeling [82000. - 82001.]
For purposes of this division, the following definitions apply:
“Quality date” means a date on a label affixed to the packaging or a container of food that communicates to consumers the date after which the food quality may begin to deteriorate but the food may still be acceptable for consumption.
“Safety date” means a date on a label affixed to the packaging or container of food that communicates to consumers that the food should be consumed or frozen, if appropriate, by the date listed on the package that applies to perishable products with potential safety implications over time.
“‘Sell by’ date” means a date on a label affixed to the packaging or container of food that is intended to communicate primarily to a distributor or retailer for purposes of stock rotation and that is not a quality date or a safety date.
On and after July 1, 2026, a food manufacturer, processor, or retailer responsible for the labeling of food items for human consumption that chooses, or is otherwise required by law, to display a date label to communicate a quality or safety date on a food item manufactured on or after July 1, 2026, shall use one of the following uniform terms on the date label:
“BEST if Used by,” “BEST if Used or Frozen by,” “Best if Used by,” or “Best if Used or Frozen by” to indicate the quality date of the food item.
“USE by,” “USE by or Freeze by,” “Use by,” or “Use by or Freeze by” to indicate the safety date of the food item.
“BB” to indicate the quality date of the food item if the food item is too small to include the uniform term described in paragraph (1) or if the food item is a beverage as defined in Section 14504 of the Public Resources Code.
“UB” to indicate the safety date of the food item if the food item is too small to include the uniform term described in paragraph (2).
A person shall not sell or offer for sale in the state a food item for human consumption manufactured on or after July 1, 2026, that displays a quality or safety date label that is not labeled in accordance with subdivision (a).
A person shall not sell or offer for sale in the state a food item for human consumption manufactured on or after July 1, 2026, that is labeled with the phrase “sell by.” This paragraph does not prohibit the use of “sell by” dates that are presented in a coded format that are not easily readable by consumers and that do not use the phrase “sell by.”
Notwithstanding Section 13340 of the Government Code, all funds in the Consumer Education Account are hereby continuously appropriated to the department without regard to fiscal years to carry out the purpose provided in paragraph (1).
Notwithstanding subdivisions (a) and (b), on and after July 1, 2026, a grocery store may display a label with the phrase “packed on” on a prepared food item and may sell or offer for sale in the state the prepared food item with that label if the prepared food item also displays a quality or safety date label in accordance with subdivision (a).
This section does not prohibit a person from displaying on wine, a distilled spirit, or a wine- or distilled spirit-based product bottled or packaged on or after July 1, 2026, a label with a statement that communicates the date on which the wine, distilled spirit, or wine- or distilled spirit-based product was produced, manufactured, bottled, or packaged, or from selling or offering for sale in the state the wine, distilled spirit, or wine- or distilled spirit-based product with that label. The statement may use date formats, including, but not limited to, dates in a time, day, month, and year format and Julian dates.
To the extent that any other law or a National Shellfish Sanitation Program provision governing the labeling of shellfish authorizes or requires the use of terms that conflict, or are inconsistent, with this section, this section does not apply.
This section does not apply to any of the following:
Infant formula.
Eggs or pasteurized in-shell eggs.
Beer and other malt beverages.
For purposes of this section, the following definitions apply:
“Food item for human consumption” does not include a dietary supplement as defined in Section 321(ff) of Title 21 of the United States Code.
“Grocery store” means a store engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, and fresh meats, fish, and poultry and any area that is not separately owned within the store where food is prepared and served, including a bakery, deli, and meat and seafood counter.
“Prepared food item” means a food item for human consumption prepared or repackaged on a grocery store’s premises, using any cooking or food preparation technique.
If and to the extent that any provision of this section is preempted by federal law, the provision does not apply and shall not be enforced.