BILL NUMBER: AB 1598 CHAPTERED
BILL TEXT
CHAPTER 499
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2006
APPROVED BY GOVERNOR SEPTEMBER 27, 2006
PASSED THE ASSEMBLY AUGUST 31, 2006
PASSED THE SENATE AUGUST 30, 2006
AMENDED IN SENATE AUGUST 23, 2006
AMENDED IN SENATE AUGUST 14, 2006
AMENDED IN SENATE AUGUST 7, 2006
AMENDED IN SENATE JUNE 8, 2006
AMENDED IN SENATE MAY 15, 2006
AMENDED IN SENATE MAY 10, 2006
AMENDED IN SENATE MAY 8, 2006
AMENDED IN SENATE APRIL 26, 2006
AMENDED IN SENATE FEBRUARY 22, 2006
AMENDED IN ASSEMBLY JANUARY 4, 2006
INTRODUCED BY Committee on Agriculture (Matthews (Chair), Maze
(Vice Chair), Canciamilla, Cogdill, Parra, Salinas, and Vargas)
FEBRUARY 22, 2005
An act to amend Sections 24012, 52254, 52260, 52351, 52354, 52361,
52391, 52451, 52453, 52455, 52481, 52482, 52483, 52484, 52487,
52511, 56382.8, 77063, 78623, 78640, 78700, and 79040 of, and to add
Section 5312 to, the Food and Agricultural Code, relating to
agriculture omnibus, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 1598, Committee on Agriculture Agriculture omnibus changes.
Existing provisions of the Food and Agricultural Code specify
that, in lieu of specified civil actions, and except as specified,
the Secretary of Food and Agriculture or a county agricultural
commissioner may levy a civil penalty against a person violating any
provision in that code or any regulation adopted pursuant thereto
relating to plant quarantine and pest control, not to exceed $2,500
for each violation.
This bill would further authorize a county agricultural
commissioner to file a certified copy of a final decision with the
court that directs the payment of a civil penalty pursuant to the
above-described provisions, as specified. The bill would require the
court to enter judgment immediately upon that filing, and at no
cost.
Existing law provides that in order to provide for the enforcement
of provisions relating to the drugging of horses, the event manager
of every event shall charge and collect a fee of not more than $3 for
each horse entered or exhibited in the event, as determined by the
Secretary of Food and Agriculture to be necessary to carry out those
provisions. Existing law provides that under certain circumstances
the secretary may set the fee at a rate in excess of $3 per horse,
but no greater than $5 per horse.
This bill would instead provide that the event manager shall
charge and collect a fee that the secretary determines to be
necessary to carry out the provisions relating to the drugging of
horses, as specified.
This bill would increase the fees that may be charged and
collected for the purposes of enforcing the provisions relating to
the drugging of horses. These fees would be deposited into the
Department of Food and Agriculture Fund, and would be continuously
appropriated to the department for the purposes for which they are
collected. Therefore, this bill would make an appropriation by
increasing the money in a continuously appropriated fund.
Existing law, the California Seed Law, generally regulates seed
sold in California to ensure that seed purchased by the
consumer-buyer is properly identified and of the quality represented
on the tag or label. Existing law defines agricultural seed as not
including any variety that is generally known and sold as vegetable
seed, for these purposes. Existing law provides that vegetable seed
sold in a container1/2 pound or less that is for sowing purposes
shall bear upon it the year in which it is intended for planting.
This bill would remove these provisions and would instead provide
that any vegetable seed sold in a container1/2 pound or less bear
upon it at the time of retail sale for nonfarm use the viability
assurance statement "Packed for the (year) season." This bill would
make numerous other nonsubstantive, conforming changes.
Because a violation of these provisions would be a crime, this
bill would impose a state-mandated local program.
Pursuant to provisions relating to the licensure and regulation of
produce dealers a procedure is provided whereby an aggrieved grower
or licensee may file a complaint with the Department of Food and
Agriculture subject to expedited review and settlement. If the
dispute is not resolved through informal consultation, the
complainant may pursue arbitration by following specified procedures
including that he or she pay a fee for the arbitration to the
department. Existing law also requires the respondent to pay a fee
for any counterclaim that is filed.
This bill would provide that those fees shall be submitted to the
department made payable to the arbitrator, arbitration service, or
payee designated by the department.
Existing law provides that the term of office of members of the
California Walnut Commission, except ex officio members, shall be 2
years from the beginning of the marketing season in the year of their
election and until qualified successors are elected, as specified.
This bill would provide that, for the 2006 marketing year, the
term of office of members of the commission 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.
This bill would provide that this provision shall only become
operative if AB 393 of the 2005-06 Regular Session is also enacted
and becomes operative on or before January 1, 2007.
Existing law establishes the California Tomato Commission in state
government with a prescribed membership comprised of producers and
handlers representing 8 districts, and it specifies the powers,
duties, and responsibilities of the commission.
This bill would reduce the number of districts to 7 by eliminating
the district consisting of Baja California (Mexico) and eliminate
the member representing California tomato handlers who exclusively
handle tomatoes produced in Baja California (Mexico). This bill would
also increase the membership of the commission by adding one
at-large handler from District 7 which consists of all counties of
the state.
Existing law provides that the commission shall establish an
assessment against tomato handlers, as specified.
This bill would remove provisions relating to the assessment of
handlers who receive tomatoes produced outside the state.
Existing law provides that there is in state government the
California Sea Urchin Commission composed of members, as specified,
including 5 elected by handlers from among persons qualified to
engage in sea urchin fishery. Existing law requires persons nominated
for election as a diver member be nominated by a petition signed by
at least 10 divers, as specified.
This bill would instead require a petition signed by at least 5
divers, as specified.
This bill would also change the counties from which a diver member
of the commission is elected.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5312 is added to the Food and Agricultural
Code, to read:
5312. 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.
SEC. 2. Section 24012 of the Food and Agricultural Code is amended
to read:
24012. (a) 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. Event managers 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 summary, as
prescribed by the secretary, to the department within 15 days after
completion of the event.
(b) Any 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 11/2
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.
(c) Fees and penalties collected pursuant to this section shall be
deposited in the Department of Food and Agriculture Fund. All funds
received by the department from fees and penalties pursuant to this
section shall be used exclusively to carry out the intent and purpose
of this chapter, including, but not limited to, pharmacological
studies, drug testing, and drug research, inspection for drugs,
prosecution of alleged offenders, administrative costs, attorneys and
expert witness fees, and any other costs necessary to carry out this
chapter.
SEC. 3. Section 52254 of the Food and Agricultural Code is amended
to read:
52254. "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.
SEC. 4. Section 52260 of the Food and Agricultural Code is amended
to read:
52260. "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.
SEC. 5. Section 52351 of the Food and Agricultural Code is amended
to read:
52351. Every labeler of agricultural or vegetable seed offered
for sale or sold in this state, or any person who receives or
possesses for sale or sells in this state any such seed that is not
grown 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:
(a) An individual grower that conditions such seed exclusively for
the grower's own planting use.
(b) A person using agricultural or vegetable seed, or both
agricultural and vegetable seed, only for purposes of planting seed
increase.
(c) Any person licensed to sell nursery stock pursuant to Chapter
1 (commencing with Section 6701) of Part 3 of Division 4, except when
he or she also engages in activities as defined under Section
52257.5.
SEC. 6. Section 52354 of the Food and Agricultural Code is amended
to read:
52354. 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:
(a) 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.
(b) 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.
(c) No assessment shall be paid on agricultural or vegetable seed,
or both, sold and shipped out of this state.
SEC. 7. Section 52361 of the Food and Agricultural Code is amended
to read:
52361. 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.
SEC. 8. Section 52391 of the Food and Agricultural Code is amended
to read:
52391. 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.
SEC. 9. Section 52451 of the Food and Agricultural Code is amended
to read:
52451. This article does not apply to any of the following:
(a) Seed or grain that is not intended for sowing purposes.
(b) Seed that is in storage in, or consigned to, a seed cleaning
or conditioning establishment for cleaning or conditioning.
(c) 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.
(d) 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.
(e) 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.
SEC. 10. Section 52453 of the Food and Agricultural Code is
amended to read:
52453. 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:
(a) Name of kind and variety of seed.
(b) 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.
(c) Name and address of the person that labeled the seed, or of
the person that sells the seed within this state.
(d) 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.
SEC. 11. Section 52455 of the Food and Agricultural Code is
amended to read:
52455. 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.
(a) 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.
(b) 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.
(c) The statement shall be affixed at the time of labeling for
those containers destined for retail sales.
(d) 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).
SEC. 12. Section 52481 of the Food and Agricultural Code is
amended to read:
52481. 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:
(a) In the case of any agricultural or vegetable seed that is
shipped, delivered, transported, or sold to a dealer for resale,
eight months.
(b) In the case of any agricultural or vegetable seed that is sold
at retail, 15 months.
(c) 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.
(d) 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.
SEC. 13. Section 52482 of the Food and Agricultural Code is
amended to read:
52482. 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:
(a) 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.
(b) 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.
(c) Has false or misleading labeling, or pertaining to which there
has been a false or misleading advertisement.
(d) 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.
(e) Contains more than 11/2 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.
(f) 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.
SEC. 14. Section 52483 of the Food and Agricultural Code is
amended to read:
52483. It is unlawful for any person to do any of the following:
(a) 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.
(b) Disseminate any false or misleading advertisement concerning
agricultural or vegetable seed in any manner or by any means.
(c) Hinder or obstruct in any way any authorized person in the
performance of his or her duties under this chapter.
(d) Fail to comply with a "stop-sale" order.
SEC. 15. Section 52484 of the Food and Agricultural Code is
amended to read:
52484. (a) 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 upon
each container all of the following information:
(1) "TREATED SEED" and the signal word for the category of
treatment material all in capital letters.
(2) The chemical or generic name of the treatment material.
(3) An appropriately worded statement as to the hazards to humans
and animals.
(4) An appropriately worded statement of practical treatment, if
present.
(b) This information shall be derived from the technical chemical
label of the substance applied to the seed.
(c) When more than one substance is applied, each substance shall
be noted on the label, and the seed shall be labeled for the
substance with the higher level of toxicity.
SEC. 16. Section 52487 of the Food and Agricultural Code is
amended to read:
52487. 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.
SEC. 17. Section 52511 of the Food and Agricultural Code is
amended to read:
52511. 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.
SEC. 18. Section 56382.8 of the Food and Agricultural Code is
amended to read:
56382.8. (a) 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.
(b) 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:
(1) 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.
(2) The quantity and quality or grade of each kind of produce
shipped if a grade or quality is the basis of payment.
(3) The date of shipment.
(4) The carrier identification if a carrier was used.
(5) The shipping and destination points.
(6) If a sale, the date, sale price, and amount actually received.
(7) If a consignment, the date, reported proceeds, gross, and net.
(8) A precise estimate of the amount of damages claimed, if known.
(9) A brief statement of material facts in dispute, including
terms of applicable contracts.
(10) The amount of damages being sought.
(c) 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.
(d) The informal complaint shall be accompanied by a nonrefundable
filing fee of sixty dollars ($60) as required under Section 56382.5.
(e) 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.
(f) 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.
(g) 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:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) The arbitrator may, in the interest of justice, briefly extend
the time periods for written submissions by either party.
(9) 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.
(10) No hearings or live testimony shall be conducted under the
expedited arbitration procedures.
(11) 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, fees paid to expert witnesses,
auditors or inspectors, but not attorneys' fees, unless there has
been an agreement by the parties that the prevailing party in any
dispute shall be entitled to recover reasonable attorneys' fees as
part of any award for damages, and in that case, the arbitrator may
award reasonable attorneys' fees to the prevailing party.
(h) 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 attorneys' fees incurred in connection with that
proceeding.
(i) 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.
(j) 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.
SEC. 18.5. Section 77063 of the Food and Agricultural Code is
amended to read:
77063. 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.
SEC. 19. Section 78623 of the Food and Agricultural Code is
amended to read:
78623. "Districts" shall consist of the following:
(a) District 1 consists of Imperial and Riverside Counties.
(b) District
2 consists of Los Angeles, Orange, San Diego, San Luis Obispo, Santa
Barbara, and Ventura Counties.
(c) District 3 consists of Fresno, Kern, Kings, and Tulare
Counties.
(d) District 4 consists of Monterey County.
(e) District 5 consists of Madera, Merced, and Stanislaus
Counties.
(f) District 6 consists of San Joaquin County.
(g) 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.
SEC. 20. Section 78640 of the Food and Agricultural Code is
amended to read:
78640. 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.
(a) 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.
(b) Handlers within Districts 1 to 6, inclusive, shall elect one
handler from each district and one at-large handler from District 7.
(c) The public member shall be appointed to the commission by the
secretary from nominees recommended by the commission.
(d) The secretary and other appropriate individuals, as determined
by the commission, shall be ex officio members of the commission.
SEC. 21. Section 78700 of the Food and Agricultural Code is
amended to read:
78700. (a) 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.
(b) 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.
SEC. 22. Section 79040 of the Food and Agricultural Code is
amended to read:
79040. 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.
(a) 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.
(b) (1) 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.
(2) One diver member shall be elected from each of the following
areas:
(A) San Diego County.
(B) Orange or Los Angeles County.
(C) Ventura County.
(D) Santa Barbara County.
(E) Sonoma or Mendocino County.
(3) 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.
(c) The public member shall be appointed to the commission by the
secretary from nominees recommended by the commission.
(d) The secretary and other appropriate individuals, as determined
by the commission, shall be nonvoting members of the commission.
(e) 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.
(f) 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.
SEC. 23. Section 18.5 of this bill shall only become operative if
Assembly Bill 393 of the 2005-06 Regular Session is also enacted and
becomes operative on or before January 1, 2007.
SEC. 24. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.