Amended in Senate May 18, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 689

Introduced by Assembly Member Dodd

February 25, 2015

An act to amend begin delete Sections 27581.2 and end delete begin insert Section end insert 27581.4 of, and to add Sections begin insert 27581.1, end insert 27583, begin insert 27583.2, 27583.4, end insert 27584, and 27585 to, the Food and Agricultural Code, relating to eggs.

LEGISLATIVE COUNSEL’S DIGEST

AB 689, as amended, Dodd. Marketing of eggs: violations: begin delete civil actions: civil end delete penalties.

Existing law establishes a regulatory scheme for the marketing of shell eggs, and requires egg producers and egg handlers to register with the Secretary of Food and Agriculture. A violation of those provisions or regulations adopted pursuant to those provisions is unlawful, and for certain violations, punishable as a misdemeanor. Existing law also authorizes the secretary, in lieu of seeking prosecution for the violation, to bring a civil action for up to $1,000 for the violation.

This bill would increase that amount to $10,000 begin insert and would also authorize a county agricultural commissioner to bring a civil action end insert . The bill would also authorize begin insert the secretary or end insert a county agricultural commissioner, in lieu of prosecution, to levy begin delete a civil end delete begin insert an administrative end insert penalty of up to $10,000 for a violation of those provisions. begin insert The bill would require the secretary, on or before July 1, 2016, to adopt regulations classifying violations of these egg provisions as either “minor,” “moderate,” or “serious,” with different penalty ranges applicable to each classification, as specified, and would apply these amounts to both civil liability penalties and administrative penalties. end insert The bill would set forth notice and other procedural requirements for bringing and resolving an begin insert administrative end insert action pursuant to those provisions, and would require the funds recovered by the county agricultural commissioner to be deposited in the county’s general fund.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin delete

  

end delete

begin delete

SECTION 1.  

Section 27581.2 of the Food and Agricultural
Code is amended to read:

27581.2.  

(a) In lieu of seeking prosecution of any violation of
this chapter, or the regulations adopted pursuant to this chapter,
as a misdemeanor pursuant to Section 27671, the secretary may
bring a civil action pursuant to Sections 27581 and 27581.4.

(b) The person charged with the violation shall be notified of
the proposed action. The notice shall include the nature of the
violation, the amount of the proposed penalty, the right to request
a hearing to appeal the civil action, and the right to judicial review
of the decision within 30 days of the date of the decision, pursuant
to Section 1094.5 of the Code of Civil Procedure.

(c) The secretary shall send a copy of the notice of the proposed
action to the commissioner of the county in which the violation
took place at the same time notice is sent pursuant to subdivision
(b). Additionally, the secretary shall inform the commissioner of
the county in which the action was initiated of violations for which
a penalty has been assessed.

end delete

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 27581.1 is added to the end insert begin insert Food and
Agricultural Code end insert begin insert , to read: end insert

begin insert

begin insert 27581.1. end insert   

(a) On or before July 1, 2016, the secretary shall
adopt regulations classifying certain violations of this chapter, or
any regulation adopted pursuant to this chapter, as “minor,”
subject to a penalty from fifty dollars ($50) to four hundred dollars
($400), inclusive, certain violations as “moderate,” subject to a
penalty from four hundred one dollars ($401) to one thousand
dollars ($1,000), inclusive, and certain violations as “serious,”
subject to a penalty from one thousand one dollars ($1,001) to ten
thousand dollars ($10,000), inclusive.

(b) The penalty schedule described in this section shall apply
to civil liability penalties imposed pursuant to Section 27581.4
and administrative penalties imposed pursuant to Section 27583.

end insert

SEC. 2.  

Section 27581.4 of the Food and Agricultural Code is
amended to read:

27581.4.  

(a) The secretary, or a commissioner for violations
in his or her county, may bring a civil action against any person
who violates this chapter or any regulation adopted pursuant to
this chapter, and any person who commits that violation is liable
civilly in an amount not to exceed ten thousand dollars ($10,000).
begin insert The court shall set the civil liability imposed on a violator of this
chapter, or any regulation adopted pursuant to this chapter, in
accordance with the penalty schedule adopted by the secretary
pursuant to Section 27581.1. end insert

(b) Any money recovered by the secretary under this section
shall be deposited in the Department of Food and Agriculture Fund
for use by the department in administering this chapter, when
appropriated to the department for that purpose.

(c) Any money recovered by a begin delete county agricultural end delete commissioner
under this section shall be deposited in the county’s general fund.

SEC. 3.  

Section 27583 is added to the Food and Agricultural
Code, to read:

27583.  

(a) In lieu of prosecution, the begin insert secretary or the end insert
commissioner may levy begin delete a civil penalty end delete begin insert an administrative penalty,
in an amount not to exceed ten thousand dollars ($10,000) and in
accordance with Section 27583.2 or Section 27583.4, as applicable, end insert
against a person who violates this chapter or any regulation
implemented pursuant to this chapter. begin insert An administrative penalty
levied pursuant to this section shall be set in accordance with the
penalty schedule adopted by the secretary pursuant to Section
27581.1. end insert

(b) “Person,” as used in this section, means anyone engaged in
the business of producing, candling, grading, packing, or otherwise
preparing shell eggs for market or who engages in the operation
of selling or marketing eggs that he or she has produced, purchased,
or acquired from a producer, or which he or she is marketing on
behalf of a producer, whether as owner, agent, employee, or
otherwise pursuant to this chapter.

begin delete

(c) (1) Before a civil penalty is levied, the person charged with
the violation shall receive written notice of the proposed action
including the nature of the violation and the amount of the proposed
penalty. The person shall have the right to request a hearing within
20 days after receiving notice of the proposed action. A notice 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 if 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
commissioner’s evidence and to present evidence on his or her
own behalf. If a hearing is not timely requested, the commissioner
may take the action proposed without a hearing.

(2) The commissioner shall send a copy of the notice of the
proposed action to the secretary at the same time notice is sent to
the person charged with the violation.

(d) If the person, upon whom the commissioner levied a civil
penalty, requested and appeared at a hearing, the person may appeal
the commissioner’s decision to the secretary within 30 days of the
date of receiving a copy of the 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, states the grounds for the appeal,
and includes a copy of the commissioner’s decision. The appellant
shall file a copy of the appeal with the commissioner at the same
time it is filed with the secretary.

(2) The appellant and the commissioner, at the time of filing
the appeal or within 10 days thereafter or at a later time prescribed
by the secretary, may present the record of the hearing and a written
argument to the secretary stating the ground for affirming,
modifying, or reversing the commissioner’s decision.

(3) The secretary 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 oral argument. The
times may be altered by mutual agreement of the appellant, the
commissioner, and the secretary.

(5) The secretary 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
secretary finds substantial evidence in the record to support the
commissioner’s decision, the secretary shall affirm the decision.

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

(8) Any person who does not request a hearing with the
commissioner pursuant to a penalty assessed under subdivision
(c) may not file an appeal to the secretary pursuant to this
subdivision.

(9) Review of a decision of the secretary 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) After the exhaustion of the appeal and review of procedures
provided in this section, the commissioner, or his or her
representative, may file a certified copy of a final decision of the
commissioner that directs the payment of a civil penalty, and, if
applicable, a copy of any decision of the secretary, or his or her
authorized representative, rendered on an appeal from the
commissioner’s decision and a copy of any order that denies a
petition for a writ of administrative mandamus, with the clerk of
the superior court of any county. Judgment shall be entered
immediately by the clerk in conformity with the decision or order.
No fees shall be charged by the clerk of the superior court for the
performance of any official service required in connection with
the entry of judgment pursuant to this section.

(f) If the person fails to pay the penalty and fails to timely file
a written appeal, the commissioner may take the action described
in subdivision (e).

(g) In addition to the civil penalties, the appellant may be
required to cover the cost of the administrative hearing unless the
decision of the secretary or commissioner is overturned.

(h) Revenues from civil penalties levied by the commissioner
shall be deposited in the general fund of the county and, upon
appropriation by the board of supervisors, shall be used by the
commissioner to carry out his or her responsibilities under this
chapter. The commissioner shall inform the secretary of any
violations for which a penalty has been assessed.

end delete

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 27583.2 is added to the end insert begin insert Food and Agricultural
Code end insert begin insert , to read: end insert

begin insert

begin insert 27583.2. end insert   

If the secretary levies an administrative penalty
pursuant to Section 27583, the following provisions shall apply:

(a) The person charged with the violation shall be notified of
the proposed action. The notice shall include the nature of the
violation, the amount of the proposed administrative penalty, the
right to request a hearing to appeal the administrative action, and
the right to judicial review of the decision within 30 days of the
date of the decision, pursuant to Section 1094.5 of the Code of
Civil Procedure.

(b) The secretary shall send a copy of the notice of the proposed
action to the commissioner of the county in which the violation
took place at the same time notice is sent pursuant to subdivision
(a). Additionally, the secretary shall inform the commissioner of
the county in which the action was initiated of violations for which
a penalty has been assessed.

end insert

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 27583.4 is added to the end insert begin insert Food and Agricultural
Code end insert begin insert , to read: end insert

begin insert

begin insert 27583.4. end insert   

If a commissioner levies an administrative penalty
pursuant to Section 27583, the following provisions shall apply:

(a) (1) Before an administrative penalty is levied, the person
charged with the violation shall receive written notice of the
proposed action including the nature of the violation and the
amount of the proposed penalty. The person shall have the right
to request a hearing within 20 days after receiving notice of the
proposed action. A notice 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 if 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 commissioner’s evidence and to present
evidence on his or her own behalf. If a hearing is not timely
requested, the commissioner may take the action proposed without
a hearing.

(2) The commissioner shall send a copy of the notice of the
proposed action to the secretary at the same time notice is sent to
the person charged with the violation.

(b) If the person, upon whom the commissioner levied an
administrative penalty, requested and appeared at a hearing, the
person may appeal the commissioner’s decision to the secretary
within 30 days of the date of receiving a copy of the 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 commissioner’s decision. The appellant
shall file a copy of the appeal with the commissioner at the same
time it is filed with the secretary.

(2) The appellant and the commissioner, at the time of filing
the appeal, within 10 days thereafter, or at a later time prescribed
by the secretary, may present the record of the hearing and a
written argument to the secretary stating the ground for affirming,
modifying, or reversing the commissioner’s decision.

(3) The secretary 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 oral argument. The
times may be altered by mutual agreement of the appellant, the
commissioner, and the secretary.

(5) The secretary 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
secretary finds substantial evidence in the record to support the
commissioner’s decision, the secretary shall affirm the decision.

(6) The secretary 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 secretary may
affirm the commissioner’s decision, modify the commissioner’s
decision by reducing or increasing the amount of the penalty levied
so that it is consistent with the penalty schedule described in
Section 27581.1, or reverse the commissioner’s decision. An
administrative penalty increased by the secretary shall not be
higher than that proposed in the commissioner’s notice of proposed
action given pursuant to subdivision (a). A copy of the secretary’s
decision shall be delivered or mailed to the appellant and the
commissioner.

(8) Any person who does not request a hearing with the
commissioner pursuant to an administrative penalty assessed under
subdivision (a) shall not file an appeal to the secretary pursuant
to this subdivision.

(9) Review of a decision of the secretary 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.

(c) After the exhaustion of the appeal and review of procedures
provided in this section, the commissioner, or his or her
representative, may file a certified copy of a final decision of the
commissioner that directs the payment of an administrative penalty,
and, if applicable, a copy of any decision of the secretary, or his
or her authorized representative, rendered on an appeal from the
commissioner’s decision and a copy of any order that denies a
petition for a writ of administrative mandamus, with the clerk of
the superior court of any county. Judgment shall be entered
immediately by the clerk in conformity with the decision or order.
No fees shall be charged by the clerk of the superior court for the
performance of any official service required in connection with
the entry of judgment pursuant to this section.

(d) If the person fails to pay the administrative penalty and fails
to timely file a written appeal, the commissioner may take the
action described in subdivision (c).

(e) In addition to the administrative penalties, the appellant
may be required to cover the cost of the administrative hearing
unless the decision of the secretary or commissioner is overturned.

(f) Revenues from administrative penalties levied by the
commissioner shall be deposited in the general fund of the county
and, upon appropriation by the board of supervisors, shall be used
by the commissioner to carry out his or her responsibilities under
this chapter. The commissioner shall inform the secretary of any
violations for which a penalty has been assessed.

end insert

begin delete SEC. 4. end delete
begin insert SEC. 6. end insert   

Section 27584 is added to the Food and Agricultural
Code, to read:

27584.  

If a respondent in an administrative action agrees to
stipulate to the notice of proposed action, a signed stipulation with
the payment of the proposed administrative penalty shall be
returned to the commissioner or secretary, as applicable, within
45 days of the postmark of the notice of the proposed action. If
the stipulation and payment of the proposed administrative penalty
are not received within 45 days, the commissioner or the secretary
may file a certified copy of a final decision that directs the payment
of begin delete a civil end delete begin insert an administrative end insert penalty with the clerk of the superior
court of any county. Judgement shall be entered immediately by
the clerk in conformity with the decision. 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.

begin delete SEC. 5. end delete
begin insert SEC. 7. end insert   

Section 27585 is added to the Food and Agricultural
Code, to read:

27585.  

If an administrative hearing is requested pursuant to
Section begin delete 27581.2 end delete begin insert 27583.2 end insert or begin delete 27583, end delete begin insert 27583.4, end insert a final decision and
order shall be made by either the secretary or commissioner, as
applicable, within 60 days of the conclusion of the hearing. The
order shall be mailed to the respondent, and any penalty imposed
shall be due and payable within 45 days of the postmark of the
order.