BILL NUMBER: AB 846 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 15, 2010
AMENDED IN SENATE JULY 1, 2009
AMENDED IN SENATE JUNE 25, 2009
AMENDED IN ASSEMBLY JUNE 1, 2009
AMENDED IN ASSEMBLY APRIL 13, 2009
INTRODUCED BY Assembly Member Torrico
FEBRUARY 26, 2009
An act to add Section 12999.7 to the Food and Agricultural
Code, to add Sections 25196.5 and 42402.6 to the Health and
Safety Code, to add Section 6437 to the Labor Code, and to add
Section 13363 to the Water Code, relating to civil and administrative
penalties.
LEGISLATIVE COUNSEL'S DIGEST
AB 846, as amended, Torrico. State agencies: civil and
administrative penalties.
The Administrative Procedure Act contains provisions governing
the conduct of administrative adjudication for state agencies.
This bill would require the Director of Pesticide Regulation,
the Department of Toxic Substances Control, the State Air
Resources Board, the Department of Industrial Relations, and the
State Water Resources Control Board to update the maximum and minimum
amounts of specified civil and administrative penalties for
inflation or deflation using the Consumer Price Index, as
provided. The bill would require, if a penalty below these
maximum levels an administrative or civil penalty
below the maximum monetary level authorized pursuant to those
provisions is sought, that the penalty be assessed, at a
minimum, at a level that recovers non-de minimis economic
benefits derived by the violator, except as specified. Because local
air districts , county agricultural commissioners, and
unified program agencies would be subject to this requirement, this
bill would impose a state-mandated local program.
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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the
California Civil Penalties Inflation Supplement and Enforcement Act
of 2009 2010 .
SEC. 2. Section 12999.7 is added to the
Food and Agricultural Code , to read:
12999.7. (a) (1) The director shall update, by February 15, 2011,
and on January 1 every four years thereafter, all civil and
administrative penalties imposed pursuant to this article, Section
14027, and Article 5 (commencing with Section 11891) of Chapter 4 of
Division 6 to adjust the maximum and minimum amounts specified in
those provisions for inflation or deflation, as established by the
amount by which the Consumer Price Index for the month of June of the
year prior to the adjustment exceeds, or is less than, the Consumer
Price Index for June of the calendar year in which legislation was
last enacted establishing or amending the amount of the penalty.
(2) The amount of any penalties determined pursuant to this
subdivision shall be rounded as follows:
(A) To the nearest multiple of ten dollars ($10) in the case of a
penalty less than or equal to one hundred dollars ($100).
(B) To the nearest multiple of one hundred dollars ($100) in the
case of a penalty greater than one hundred dollars ($100) but less
than or equal to one thousand dollars ($1,000).
(C) To the nearest multiple of one thousand dollars ($1,000) in
the case of a penalty greater than one thousand dollars ($1,000) but
less than or equal to ten thousand dollars ($10,000).
(D) To the nearest multiple of five thousand dollars ($5,000) in
the case of a penalty greater than ten thousand dollars ($10,000) but
less than or equal to one hundred thousand dollars ($100,000).
(E) To the nearest multiple of ten thousand dollars ($10,000) in
the case of a penalty greater than one hundred thousand dollars
($100,000) but less than or equal to two hundred thousand dollars
($200,000).
(F) To the nearest multiple of twenty-five thousand dollars
($25,000) in the case of a penalty greater than two hundred thousand
dollars ($200,000).
(3) Inflation adjustments made pursuant to this subdivision shall
be exempt from the requirements of Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(b) (1) If the director or a commissioner seeks to impose an
administrative or civil penalty below the maximum monetary level
authorized pursuant to this article, Section 14027, or Article 5
(commencing with Section 11891) of Chapter 4 of Division 6, as
adjusted by subdivision (a), the director or a commissioner shall
calculate, and make express findings concerning, the non-de minimis
economic benefits, if any, derived by the violator from the acts that
constitute the violation. At a minimum, liability shall be assessed
at a level that recovers those economic benefits, unless the director
or a commissioner makes express findings that document that good
faith efforts to comply or inability to pay justify a reduction and
that the liability assessed will maintain the deterrent effect of the
penalty.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The director or a commissioner may adopt rules and regulations to
determine specific de minimis categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(3) This subdivision does not affect the other enforcement options
available to the director or a commissioner, including settlements.
(c) The director shall report to the Legislature on the
implementation of this section.
SEC. 2. SEC. 3. Section 25196.5 is
added to the Health and Safety Code, to read:
25196.5. (a) (1) The department shall update, by February 15,
2010 2011 , and on January 1
annually every four years thereafter, all civil
and administrative penalties imposed pursuant to this chapter to
adjust the maximum and minimum amounts specified in this chapter for
inflation or deflation , as established by the amount by
which the Consumer Price Index for the month of June of the year
prior to the adjustment exceeds , or is less than, the
Consumer Price Index for June of the calendar year in which
legislation was last enacted establishing or amending the amount of
the penalty.
(2) The amount of any penalties determined pursuant to this
subdivision shall be rounded as follows:
(A) To the nearest multiple of ten dollars ($10) in the case of a
penalty less than or equal to one hundred dollars ($100).
(B) To the nearest multiple of one hundred dollars ($100) in the
case of a penalty greater than one hundred dollars ($100) but less
than or equal to one thousand dollars ($1,000).
(C) To the nearest multiple of one thousand dollars ($1,000) in
the case of a penalty greater than one thousand dollars ($1,000) but
less than or equal to ten thousand dollars ($10,000).
(D) To the nearest multiple of five thousand dollars ($5,000) in
the case of a penalty greater than ten thousand dollars ($10,000) but
less than or equal to one hundred thousand dollars ($100,000).
(E) To the nearest multiple of ten thousand dollars ($10,000) in
the case of a penalty greater than one hundred thousand dollars
($100,000) but less than or equal to two hundred thousand dollars
($200,000).
(F) To the nearest multiple of twenty-five thousand dollars
($25,000) in the case of a penalty greater than two hundred thousand
dollars ($200,000).
(3) Inflation adjustments made pursuant to this subdivision shall
be exempt from the requirements of Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(b) (1) If the department or a unified
program agency seeks to impose a penalty below the maximum
levels set an administrative or civil penalty below
the maximum monetary level authorized pursuant to this chapter,
as adjusted by subdivision (a), the department or unified program
agency shall calculate, and make express findings concerning, the
non-de minimis economic benefits, if any, derived by the
violator from the acts that constitute the violation. At a minimum,
liability shall be assessed at a level that recovers those economic
benefits, unless the department or unified program agency makes
express findings that document that good faith efforts to comply or
inability to pay justify a reduction and that the liability assessed
will maintain the deterrent effect of the penalty.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The department or a unified program agency may adopt rules and
regulations to determine specific de minimis categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(3) This subdivision does not affect the other enforcement options
available to the department or a unified program agency, including
settlements.
(c) The department shall report to the Legislature on the
implementation of this section.
SEC. 3. SEC. 4. Section 42402.6 is
added to the Health and Safety Code, to read:
42402.6. (a) (1) The state board shall update, by February 15,
2010 2011 , and on January 1
annually every four years thereafter, all civil
and administrative penalties imposed pursuant to this division to
adjust the maximum and minimum amounts specified in this division for
inflation or deflation , as established by the
amount by which the Consumer Price Index for the month of June of
the year prior to the adjustment exceeds , or is less than,
the Consumer Price Index for June of the calendar year in which
legislation was last enacted establishing or amending the amount of
the penalty.
(2) The amount of any penalties determined pursuant to this
subdivision shall be rounded as follows:
(A) To the nearest multiple of ten dollars ($10) in the case of a
penalty less than or equal to one hundred dollars ($100).
(B) To the nearest multiple of one hundred dollars ($100) in the
case of a penalty greater than one hundred dollars ($100) but less
than or equal to one thousand dollars ($1,000).
(C) To the nearest multiple of one thousand dollars ($1,000) in
the case of a penalty greater than one thousand dollars ($1,000) but
less than or equal to ten thousand dollars ($10,000).
(D) To the nearest multiple of five thousand dollars ($5,000) in
the case of a penalty greater than ten thousand dollars ($10,000) but
less than or equal to one hundred thousand dollars ($100,000).
(E) To the nearest multiple of ten thousand dollars ($10,000) in
the case of a penalty greater than one hundred thousand dollars
($100,000) but less than or equal to two hundred thousand dollars
($200,000).
(F) To the nearest multiple of twenty-five thousand dollars
($25,000) in the case of a penalty greater than two hundred thousand
dollars ($200,000).
(3) Inflation adjustments made pursuant to this subdivision shall
be exempt from the requirements of Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(b) (1) If the state board or a district
seeks to impose a penalty below the maximum levels set
an administrative or civil penalty below the maximum
monetary level authorized pursuant to this division, as
adjusted by subdivision (a), the state board or district shall
calculate, and make express findings concerning, the non-de
minimis economic benefits, if any, derived by the violator from
the acts that constitute the violation. At a minimum, liability
shall be assessed at a level that recovers those economic benefits,
unless the state board or district makes express findings that
document that good faith efforts to comply or inability to pay
justify a reduction and that the liability assessed will maintain the
deterrent effect of the penalty.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The state board or a district may adopt rules and regulations to
determine specific de minimis categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(3) This subdivision does not affect the other enforcement options
available to the state board or a district, including settlements.
(c) The state board shall report to the Legislature on the
implementation of this section.
SEC. 4. SEC. 5. Section 6437 is
added to the Labor Code, to read:
6437. (a) (1) The department shall update, by February 15,
2010 2011 , and on January 1
annually every four years thereafter, all civil
and administrative penalties imposed pursuant to this part to adjust
the maximum and minimum amounts specified in this part for inflation
or deflation , as established by the amount by which the
Consumer Price Index for the month of June of the year prior to the
adjustment exceeds , or is less than, the Consumer Price
Index for June of the calendar year in which legislation was last
enacted establishing or amending the amount of the penalty.
(2) The amount of any penalties determined pursuant to this
subdivision shall be rounded as follows:
(A) To the nearest multiple of ten dollars ($10) in the case of a
penalty less than or equal to one hundred dollars ($100).
(B) To the nearest multiple of one hundred dollars ($100) in the
case of a penalty greater than one hundred dollars ($100) but less
than or equal to one thousand dollars ($1,000).
(C) To the nearest multiple of one thousand dollars ($1,000) in
the case of a penalty greater than one thousand dollars ($1,000) but
less than or equal to ten thousand dollars ($10,000).
(D) To the nearest multiple of five thousand dollars ($5,000) in
the case of a penalty greater than ten thousand dollars ($10,000) but
less than or equal to one hundred thousand dollars ($100,000).
(E) To the nearest multiple of ten thousand dollars ($10,000) in
the case of a penalty greater than one hundred thousand dollars
($100,000) but less than or equal to two hundred thousand dollars
($200,000).
(F) To the nearest multiple of twenty-five thousand dollars
($25,000) in the case of a penalty greater than two hundred thousand
dollars ($200,000).
(3) Inflation adjustments made pursuant to this subdivision shall
be exempt from the requirements of Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(b) (1) If the division seeks to impose
a penalty below the maximum levels set an
administrative or civil penalty below the maximum monetary level
authorized pursuant to this part, as adjusted by subdivision
(a), the division shall calculate, and make express findings
concerning, the non-de minimis economic benefits, if any,
derived by the violator from the acts that constitute the violation.
Notwithstanding any other provision of law, at a minimum, liability
shall be assessed at a level that recovers those economic benefits,
unless the division makes express findings that document that good
faith efforts to comply or inability to pay justify a reduction and
that the liability assessed will maintain the deterrent effect of the
penalty.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The division may adopt rules and regulations to determine specific de
minimis categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(3) This subdivision does not affect the other enforcement options
available to the division, including settlements.
(c) The department shall report to the Legislature on the
implementation of this section.
SEC. 5. SEC. 6. Section 13363 is
added to the Water Code, to read:
13363. (a) (1) The state board shall update, by February 15,
2010 2011 , and on January 1
annually every four years thereafter, all civil
and administrative penalties imposed pursuant to this division or
pursuant to Section 25270.12, 25299, or 25299.76 of the Health and
Safety Code to adjust the maximum and minimum amounts specified in
those provisions for inflation or deflation , as
established by the amount by which the Consumer Price Index for the
month of June of the year prior to the adjustment exceeds , or
is less than, the Consumer Price Index for June of the calendar
year in which legislation was last enacted establishing or amending
the amount of the penalty.
(2) The amount of any penalties determined pursuant to this
subdivision shall be rounded as follows:
(A) To the nearest multiple of ten dollars ($10) in the case of a
penalty less than or equal to one hundred dollars ($100).
(B) To the nearest multiple of one hundred dollars ($100) in the
case of a penalty greater than one hundred dollars ($100) but less
than or equal to one thousand dollars ($1,000).
(C) To the nearest multiple of one thousand dollars ($1,000) in
the case of a penalty greater than one thousand dollars ($1,000) but
less than or equal to ten thousand dollars ($10,000).
(D) To the nearest multiple of five thousand dollars ($5,000) in
the case of a penalty greater than ten thousand dollars ($10,000) but
less than or equal to one hundred thousand dollars ($100,000).
(E) To the nearest multiple of ten thousand dollars ($10,000) in
the case of a penalty greater than one hundred thousand dollars
($100,000) but less than or equal to two hundred thousand dollars
($200,000).
(F) To the nearest multiple of twenty-five thousand dollars
($25,000) in the case of a penalty greater than two hundred thousand
dollars ($200,000).
(3) Inflation adjustments made pursuant to this subdivision shall
be exempt from the requirements of Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(b) (1) If the state board, a regional
board, or a unified program agency seeks to impose a penalty
below the maximum levels set an administrative or
civil penalty below the maximum monetary level authorized
pursuant to this division or pursuant to Section 25270.12, 25299, or
25299.76 of the Health and Safety Code, as adjusted by subdivision
(a), the state board, a regional board, or a unified program agency
shall calculate, and make express findings concerning, the
non-de minimis economic benefits, if any, derived by the
violator from the acts that constitute the violation. At a minimum,
liability shall be assessed at a level that recovers those economic
benefits, unless the state board, a regional board, or a unified
program agency makes express findings that document that good faith
efforts to comply or inability to pay justify a reduction and that
the liability assessed will maintain the deterrent effect of the
penalty. This subdivision does not affect the requirement to recover
economic benefits from a violator, imposed pursuant to subdivision
(e) of Section 13385.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The state board, a regional board, or a unified program agency may
adopt rules and regulations to determine specific de minimis
categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(3) This subdivision does not affect the other enforcement options
available to the state board, a regional board, or a unified program
agency, including settlements.
(c) Except as provided in subdivision (k) of Section 13350 and
paragraph (2) of subdivision (n) of Section 13385, and in Sections
25270.12, 25299, and 25299.50 of the Health and Safety Code, proceeds
from the implementation of subdivision (a) shall be deposited in the
Clean Water Civil Penalty Inflation Account, which is hereby created
in the General Fund, to be expended, upon appropriation by the
Legislature, consistent with Section 13441. "Proceeds" as used in
this subdivision means the amount of the penalty imposed and
collected that is above the amount that was authorized before the
maximum penalty was first adjusted pursuant to subdivision (a).
(d) The state board shall report to the Legislature on the
implementation of this section.
SEC. 6. SEC. 7. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.