BILL NUMBER: AB 2695 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 15, 2010
INTRODUCED BY Assembly Member Hernandez
(Coauthor: Assembly Member Silva)
FEBRUARY 19, 2010
An act to add Chapter 27 (commencing with Section 79401) to Part 2
of Division 22 of the Food and Agricultural Code, relating to
agriculture, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 2695, as amended, Hernandez. California Nursery Producers
Commission.
(1) Existing law establishes various commissions to promote
agricultural products from the state.
This bill would create the California Nursery Producers Commission
in state government with a prescribed membership, and would specify
the powers, duties, and responsibilities of the commission. The
commission would be authorized to carry out programs of outreach,
education, promotion, marketing, and research relating to nursery
products. The bill would authorize the commission to levy an annual
assessment , not to exceed a specified amount, on
producers of nursery products, and would authorize the expenditure of
those funds for purposes of implementing and administering the bill'
s provisions, thereby making an appropriation.
The bill, except as necessary to conduct an election, would not
become operative until eligible producers, by referendum, vote in
favor of the bill's provisions, as prescribed. The bill would
provide that it is a civil violation for any person to
authorize the commission to levy a civil penalty not
exceeding $1,000 on a person who willfully render
renders or furnish
furnishes false reports or records, fail
fails to render or furnish a report or record,
and secrete, destroy, or alter or secretes, destroys,
or alters records, as specified. The bill would authorize the
commission to bring civil actions and other remedies to enforce the
bill's provisions and regulations adopted pursuant to these
provisions. The bill would also provide for the continuation and
suspension of the operation of its provisions and for concluding the
operations of the commission.
(2) Existing constitutional provisions require that a statute that
limits the right of access to the meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
This bill would make legislative findings to that effect.
Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 27 (commencing with Section 79401) is added to
Part 2 of Division 22 of the Food and Agricultural Code, to read:
CHAPTER 27. CALIFORNIA NURSERY PRODUCERS COMMISSION
Article 1. Declaration and General Provisions
79401. 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.
79402. 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.
79403. 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.
79404. 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.
79405. 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.
79406. (a) 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)).
(b) 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.
(c) The commission shall periodically meet and confer with all
other nursery-related programs administered by the department to
ensure coordination of policies and programs.
79407. 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.
79408. 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.
79409. 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.
79410. 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.
79411. 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
market place; 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.
79412. 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.
79413. 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.
79414. 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. Unless the context otherwise requires, the definitions in
this article govern the construction of this chapter.
79422. "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.
79423. "Commission" means the California Nursery Producers
Commission.
79424. "Department" means the Department of Food and Agriculture.
79425. "Ex officio member" means a nonvoting member of the
commission.
79426. "Market" or "marketing" means to sell nursery products to
a person other than another producer.
79427. "Marketing season" or "fiscal year" are synonymous terms
and mean the period beginning January 1 of any year and extending
through the last day of the year.
79428. "Person" means any individual, partnership, corporation,
limited liability company or partnership, firm, company, or other
entity doing business in California.
79429. (a) "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 market.
"Producer" does not include a licensed producer nursery that produced
and sold nursery products for a gross dollar value of less than five
million dollars ($5,000,000) in the preceding marketing season.
(b) The dollar amount specified in subdivision (a) may be
increased by a two-thirds vote of the commission.
(c) The dollar amount specified in subdivision (a) may be
decreased only if approved by referendum pursuant to Article 5
(commencing with Section 79491). For purposes of a referendum
conducted pursuant to this subdivision, the term "producer," as
defined in subdivision (a), includes persons that would become
subject to this chapter if the referendum is approved.
79430. "Nursery products" means any plant or plant part for
planting or propagation.
79431. "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.
79432. "Secretary" means the Secretary of Food and Agriculture.
79433. "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. (a) 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.
(b) The public member shall be appointed to the commission by the
secretary from nominees recommended by the commission.
(c) The secretary and other appropriate individuals, as determined
by the commission, shall be ex officio members of the commission.
79442. (a) 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.
(b) 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.
(c) 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.
(d) 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.
79443. 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.
79444. 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.
79445. 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.
79446. 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 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.
79447. 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.
79448. 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.
79449. 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).
79450. 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.
79451. The commission 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.
79452. 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.
79453. 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.
79454. 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.
79455. 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).
79456. 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. The powers and duties of the commission shall include, but
are not limited to, all of those contained in this article.
79462. 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.
79463. 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 nursery industry.
79464. 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.
79465. (a) 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.
(b) 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.
(c) 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.
79466. The commission may fix the compensation for all employees
of the commission.
79467. The commission may appoint committees composed of both
members and nonmembers of the commission to advise the commission in
carrying out this chapter.
79468. 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.
79469. 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.
79470. 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 environmental laws and regulations, and actions applicable to
the federal Plant Protection Act, Environmental Quality Improvement
Act, Clean Air Act, other governmental regulatory or statutory
actions, and international trade agreements.
79471. 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.
79472. 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.
79473. 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.
79474. 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.
79475. 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
purposes of promoting, enhancing, and maintaining the nursery
industry.
79476. 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.
79477. 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.
79478. The commission shall establish an assessment rate to be
paid by producers to defray operating costs of the commission.
79479. 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.
79480. The commission shall submit to the secretary for his or
her concurrence an annual statement of contemplated activities
authorized pursuant to this chapter.
79481. 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.
79482. The commission may appoint any person to serve as an ex
officio member.
Article 5. Implementation and Voting Procedures
79491. (a) 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.
(b) 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.
(c) 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.
79492. 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:
(a) 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.
(b) 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.
79493. 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.
79494. Nonreceipt of a ballot by an eligible producer shall not
invalidate a referendum.
79495. 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.
79496. 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.
79497. (a) 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.
(b) 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.
(c) 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.
79498. 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.
79499. 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. (a) The commission shall establish the assessment for the
following marketing season not later than January 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 sales.
(b) An assessment greater than the amount established in
subdivision (a) may not be charged unless approved by a two-thirds
vote of the commission and by producers pursuant to the procedures
specified in Section 79492.
79502. 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.
79503. 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.
79504. 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.
79505. (a) 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.
(b) 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 6252 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.
(c) 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.
79506. Any assessment that is levied as provided for in this
chapter is a personal debt of every person assessed.
79507. 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.
79508. When the producer is a corporation,
limited-liability 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.
79509. 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.
79510. 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. All violations of this chapter shall be prosecuted in
accordance with the provisions of this article and, as appropriate,
Sections 79509 and 79510.
79512. It is a civil violation for any person to do
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:
(a) Willfully render or furnish renders or
furnishes a false report, statement, or record required by the
commission.
(b) Fail Fails to render or furnish
a report, statement, or record required by the commission.
(c) Secrete, destroy, or alter Secretes,
destroys, or alters records required to be kept under this
chapter.
79513. 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.
79514. (a) 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.
(b) 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.
(c) 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.
79515. 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.
79516. 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. Every five years after the implementation of this chapter,
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.
79522. 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.
79523. (a) 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.
(b) 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 by
number who produced and sold not less than 20 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.
(c) 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:
(1) 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.
(2) 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.
79524. 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.
79525. 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.
SEC. 2. The Legislature finds and declares that Section 1 of this
act, which adds Section 79505 to the Food and Agricultural Code,
imposes a limitation on the public's right of access to the meetings
of public bodies or the writings of public officials and agencies
within the meaning of Section 3 of Article I of the California
Constitution. Pursuant to that constitutional provision, the
Legislature makes the following findings to demonstrate the interest
protected by this limitation and the need for protecting that
interest:
In order to allow the California Nursery Producers Commission to
fully accomplish its goals, it is imperative to protect the interests
of those persons submitting information to the commission to ensure
that any personal or sensitive business information that this act
requires those persons to submit is protected as confidential
information.