SB 1332, as introduced, Wolk. Pesticides: carbon monoxide pest control devices.
Existing law regulates pesticide use and generally provides that, except for specified provisions that are within the jurisdiction of the Secretary of Food and Agriculture, the enforcement of these provisions is the duty of the Director of Pesticide Regulation. Existing law, until January 1, 2018, authorizes the use of carbon monoxide for the control of burrowing rodent pests under specified conditions, including that the carbon monoxide delivery device be permanently affixed with a warning label, as provided. Existing law provides that a violation of the provisions relating to pesticides, or any regulation adopted pursuant to those provisions, is guilty of a misdemeanor, and further provides, in lieu of misdemeanor prosecution by the director, for civil prosecution by the director, or for the director or a county agricultural commissioner to levy a civil penalty against a person violating those provisions.
This bill would authorize the director to regulate the use of carbon monoxide pest control devices, as defined, and to adopt and enforce regulations to provide for the proper, safe, and efficient use of these devices, as specified. A violation of those provisions would be a misdemeanor, and would also be subject to the provisions authorizing the action to be prosecuted civilly by the director, or for a county agricultural commissioner to levy a civil penalty, in lieu of prosecution as a misdemeanor. The bill would also make nonsubstantive changes. By expanding the scope of a crime, the 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 no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 12999.5 of the Food and Agricultural
2Code is amended to read:
(a) In lieu of civil prosecution by the director, the
4begin insert county agriculturalend insert commissioner may levy a civil penalty against
5a person violating Division 6 (commencing with Section 11401),
6Article 10 (commencing with Section 12971) or Article 10.5
7(commencing with Section 12980) of this chapter, Section 12995,
8Article 1 (commencing with Section 14001) of Chapter 3,begin insert Chapter
93.7 (commencing with Section 14160),end insert Chapter 7.5 (commencing
10with Section 15300), or a regulation adopted pursuant to any of
11these provisions, of not more than one thousand dollars ($1,000)
12for each violation.
Any violation determined by thebegin insert
county
13agriculturalend insert commissioner to be abegin delete seriousend deletebegin insert Class Aend insert violation as
14defined in Section 6130 of Title 3 of the California Code of
15Regulations is subject to a fine of not more than five thousand
16dollars ($5,000) for each violation. It is unlawful and grounds for
17denial of a permit under Section 14008 forbegin delete anyend deletebegin insert aend insert person to refuse
18or neglect to pay a civil penalty levied pursuant to this section once
19the order is final.
20(b) If a person has received a civil penalty for pesticide drift in
21a school area subject to Section 11503.5 that
results in abegin delete seriousend delete
22begin insert
Class Aend insert violation as defined in subdivision (a), thebegin insert county
23agriculturalend insert commissioner shall charge a fee, not to exceed fifty
24dollars ($50), for processing and monitoring each subsequent
25pesticide application that may pose a risk of pesticide drift made
26in a school area subject to Section 11503.5. Thebegin delete Agricultural begin insert county agricultural commissionerend insert shall continue
27Commissionerend delete
P3 1to impose the fee for each subsequent application that may pose
2a risk of drift, until the person has completed 24 months without
3anotherbegin delete seriousend deletebegin insert
Class Aend insert
violation as defined in subdivision (a).
4(c) Before a civil penalty is levied, the person charged with the
5violation shall be given a written notice of the proposed action
6including the nature of the violation and the amount of the proposed
7penalty, and shall have the right to request a hearing within 20
8days after receiving notice of the proposed action. A notice of the
9proposed action that is sent by certified mail to the last known
10address of the person charged shall be considered received even
11if delivery is refused or the notice is not accepted at that address.
12If a hearing is requested, notice of the time and place of the hearing
13shall be given at least 10 days before the date set for the hearing.
14At the hearing, the person shall be given an opportunity to review
15thebegin insert county agriculturalend insert commissioner’s evidence and to
present
16evidence on his or her own behalf. If a hearing is not timely
17requested, thebegin insert county agriculturalend insert commissioner may take the
18action proposed without a hearing.
19(d) If the person upon whom thebegin insert county agriculturalend insert
20 commissioner levied a civil penalty requested and appeared at a
21hearing, the person may appeal thebegin insert county agriculturalend insert
22 commissioner’s decision to the director within 30 days of the date
23of receiving a copy of thebegin insert county agriculturalend insert commissioner’s
24decision. The following procedures apply to the appeal:
25(1) The appeal shall be in writing and signed by the appellant
26or his or her authorized agent, state the grounds for the appeal, and
27include a copy of thebegin insert county agriculturalend insert commissioner’s decision.
28The appellant shall file a copy of the appeal with thebegin insert county
29agriculturalend insert commissioner at the same time it is filed with the
30director.
31(2) The appellant and thebegin insert county agriculturalend insert commissioner
32may, at the time of filing the appeal or within 10 days thereafter
33or at a later time prescribed by the director, present the record of
34the hearing including written evidence
that was submitted at the
35hearing and a written argument to the director stating grounds for
36affirming, modifying, or reversing thebegin insert
county agriculturalend insert
37 commissioner’s decision.
38(3) The director may grant oral arguments upon application
39made at the time written arguments are filed.
P4 1(4) If an application to present an oral argument is granted,
2written notice of the time and place for the oral argument shall be
3given at least 10 days before the date setbegin delete therefor.end deletebegin insert for the oral
4argument.end insert The times may be altered by mutual agreement of the
5appellant, thebegin insert county agriculturalend insert commissioner, and the director.
6(5) The
director shall decide the appeal on the record of the
7hearing, including the written evidence and the written argument
8described in paragraph (2), that he or she has received. If the
9director finds substantial evidence in the record to support the
10begin insert county agriculturalend insert commissioner’s decision, the director shall
11affirm the decision.
12(6) The director shall render a written decision within 45 days
13of the date of appeal or within 15 days of the date of oral arguments
14or as soon thereafter as practical.
15(7) On an appeal pursuant to this section, the director may affirm
16thebegin insert county agriculturalend insert commissioner’s decision, modify thebegin insert
county
17agriculturalend insert commissioner’s decision by reducing or increasing
18the amount of the penalty levied so that it is within the director’s
19guidelines for imposing civil penalties, or reverse thebegin insert county
20agriculturalend insert commissioner’s decision. Any civil penalty increased
21by the director shall not be higher than that proposed in thebegin insert county
22agriculturalend insert commissioner’s notice of proposed action given
23pursuant to subdivision (c). A copy of the director’s decision shall
24be delivered or mailed to the appellant and thebegin insert county agriculturalend insert
25 commissioner.
26(8) Any person who does not request a hearing
pursuant to
27subdivision (c) may not file an appeal pursuant to this subdivision.
28(9) Review of a decision of the director may be sought by the
29appellant within 30 days of the date of the decision pursuant to
30Section 1094.5 of the Code of Civil Procedure.
31(e) Thebegin insert county agriculturalend insert commissioner may levy a civil
32penalty pursuant to subdivisions (a), (c), and (d) against a person
33violating paragraph (1), (2), or (8) of subdivision (a) of Section
341695 of the Labor Code, which pertains to registration with the
35begin insert county agriculturalend insert commissioner, carrying proof of that
36registration, and filing changes of address with thebegin insert
county
37agriculturalend insert commissioner.
38(f) After the exhaustion of the appeal and review procedures
39provided in this section, thebegin insert
county agriculturalend insert commissioner or
40his or her representative may file a certified copy of a final decision
P5 1of thebegin insert county agriculturalend insert commissioner that directs the payment
2of a civil penalty and, if applicable, a copy of any decision of the
3director or his or her authorized representative rendered on an
4appeal from thebegin insert county agriculturalend insert commissioner’s decision and
5a copy of any order that denies a petition for a writ of
6administrative mandamus, with the clerk of the superior court of
7any county. Judgment shall be entered immediately by the clerk
8in conformity with the decision or order. No fees shall be charged
9by the clerk of the superior court for the performance of any official
10service required in connection with the entry of judgment pursuant
11to this
section.
Chapter 3.7 (commencing with Section 14160) is added
13to Division 7 of the Food and Agricultural Code, to read:
14
For purposes of this chapter, “carbon monoxide pest
18control device” means any method or instrument using carbon
19monoxide to prevent, eliminate, destroy, or mitigate burrowing
20rodent pests.
The director may regulate the use of carbon monoxide
22pest control devices, and may adopt and enforce regulations to
23provide for the proper, safe, and efficient use of these devices for
24the protection of public health and safety, and the environment.
No reimbursement is required by this act pursuant to
26Section 6 of Article XIII B of the California Constitution because
27the only costs that may be incurred by a local agency or school
28district will be incurred because this act creates a new crime or
29infraction, eliminates a crime or infraction, or changes the penalty
30for a crime or infraction, within the meaning of Section 17556 of
31the Government Code, or changes the definition of a crime within
32the meaning of Section 6 of Article XIII B of the California
33Constitution.
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