Amended in Senate April 21, 2014

Senate Bill No. 1332

Introduced by Senator Wolk

February 21, 2014

An act to amend Section 12999.5 of, and to add Chapter 3.7 (commencing with Section 14160) to Division 7 of, the Food and Agricultural Code, relating to pesticides.

LEGISLATIVE COUNSEL’S DIGEST

SB 1332, as amended, 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 begin delete authorize end delete begin insert require end insert 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 1.  

Section 12999.5 of the Food and Agricultural
Code is amended to read:

12999.5.  

(a) In lieu of civil prosecution by the director, the
county agricultural commissioner may levy a civil penalty against
a person violating Division 6 (commencing with Section 11401),
Article 10 (commencing with Section 12971) or Article 10.5
(commencing with Section 12980) of this chapter, Section 12995,
Article 1 (commencing with Section 14001) of Chapter 3, Chapter
3.7 (commencing with Section 14160), Chapter 7.5 (commencing
with Section 15300), or a regulation adopted pursuant to any of
these provisions, of not more than one thousand dollars ($1,000)
for each violation. Any violation determined by the county
agricultural commissioner to be a Class A violation as defined in
Section 6130 of Title 3 of the California Code of Regulations is
subject to a fine of not more than five thousand dollars ($5,000)
for each violation. It is unlawful and grounds for denial of a permit
under Section 14008 for a person to refuse or neglect to pay a civil
penalty levied pursuant to this section once the order is final.

(b) If a person has received a civil penalty for pesticide drift in
a school area subject to Section 11503.5 that results in a Class A
violation as defined in subdivision (a), the county agricultural
commissioner shall charge a fee, not to exceed fifty dollars ($50),
for processing and monitoring each subsequent pesticide
application that may pose a risk of pesticide drift made in a school
area subject to Section 11503.5. The county agricultural
commissioner shall continue to impose the fee for each subsequent
application that may pose a risk of drift, until the person has
completed 24 months without another Class A violation as defined
in subdivision (a).

(c) Before a civil penalty is levied, the person charged with the
violation shall be given a written notice of the proposed action
including the nature of the violation and the amount of the proposed
penalty, and shall have the right to request a hearing within 20
days after receiving notice of the proposed action. A notice of the
proposed action that is sent by certified mail to the last known
address of the person charged shall be considered received even
if delivery is refused or the notice is not accepted at that address.
If a hearing is requested, notice of the time and place of the hearing
shall be given at least 10 days before the date set for the hearing.
At the hearing, the person shall be given an opportunity to review
the county agricultural commissioner’s evidence and to present
evidence on his or her own behalf. If a hearing is not timely
requested, the county agricultural commissioner may take the
action proposed without a hearing.

(d) If the person upon whom the county agricultural
commissioner levied a civil penalty requested and appeared at a
hearing, the person may appeal the county agricultural
commissioner’s decision to the director within 30 days of the date
of receiving a copy of the county agricultural commissioner’s
decision. The following procedures apply to the appeal:

(1) The appeal shall be in writing and signed by the appellant
or his or her authorized agent, state the grounds for the appeal, and
include a copy of the county agricultural commissioner’s decision.
The appellant shall file a copy of the appeal with the county
agricultural commissioner at the same time it is filed with the
director.

(2) The appellant and the county agricultural commissioner
may, at the time of filing the appeal or within 10 days thereafter
or at a later time prescribed by the director, present the record of
the hearing including written evidence that was submitted at the
hearing and a written argument to the director stating grounds for
affirming, modifying, or reversing the county agricultural
commissioner’s decision.

(3) The director may grant oral arguments upon application
made at the time written arguments are filed.

(4) If an application to present an oral argument is granted,
written notice of the time and place for the oral argument shall be
given at least 10 days before the date set for the oral argument.
The times may be altered by mutual agreement of the appellant,
the county agricultural commissioner, and the director.

(5) The director shall decide the appeal on the record of the
hearing, including the written evidence and the written argument
described in paragraph (2), that he or she has received. If the
director finds substantial evidence in the record to support the
county agricultural commissioner’s decision, the director shall
affirm the decision.

(6) The director shall render a written decision within 45 days
of the date of appeal or within 15 days of the date of oral arguments
or as soon thereafter as practical.

(7) On an appeal pursuant to this section, the director may affirm
the county agricultural commissioner’s decision, modify the county
agricultural commissioner’s decision by reducing or increasing
the amount of the penalty levied so that it is within the director’s
guidelines for imposing civil penalties, or reverse the county
agricultural commissioner’s decision. Any civil penalty increased
by the director shall not be higher than that proposed in the county
agricultural commissioner’s notice of proposed action given
pursuant to subdivision (c). A copy of the director’s decision shall
be delivered or mailed to the appellant and the county agricultural
commissioner.

(8) Any person who does not request a hearing pursuant to
subdivision (c) may not file an appeal pursuant to this subdivision.

(9) Review of a decision of the director may be sought by the
appellant within 30 days of the date of the decision pursuant to
Section 1094.5 of the Code of Civil Procedure.

(e) The county agricultural commissioner may levy a civil
penalty pursuant to subdivisions (a), (c), and (d) against a person
violating paragraph (1), (2), or (8) of subdivision (a) of Section
1695 of the Labor Code, which pertains to registration with the
county agricultural commissioner, carrying proof of that
registration, and filing changes of address with the county
agricultural commissioner.

(f) After the exhaustion of the appeal and review procedures
provided in this section, the county agricultural commissioner or
his or her representative may file a certified copy of a final decision
of the county agricultural commissioner that directs the payment
of a civil penalty and, if applicable, a copy of any decision of the
director or his or her authorized representative rendered on an
appeal from the county agricultural commissioner’s decision and
a copy of any order that denies a petition for a writ of
administrative mandamus, with the clerk of the superior court of
any county. Judgment shall be entered immediately by the clerk
in conformity with the decision or order. 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.  

Chapter 3.7 (commencing with Section 14160) is added
to Division 7 of the Food and Agricultural Code, to read:

 

Chapter  3.7. Carbon Monoxide Pest Control Devices

 

14160.  

For purposes of this chapter, “carbon monoxide pest
control device” means any method or instrument using carbon
monoxide to prevent, eliminate, destroy, or mitigate burrowing
rodent pests.

14161.  

The director begin delete may end delete begin insert shall end insert regulate the use of carbon
monoxide pest control devices, and begin delete may end delete begin insert shall end insert adopt and enforce
regulations to provide for the proper, safe, and efficient use of
these devices for the protection of public health and safety, and
the environment.

SEC. 3.  

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.