BILL NUMBER: AB 689 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 18, 2015
INTRODUCED BY Assembly Member Dodd
FEBRUARY 25, 2015
An act to amend Sections 27581.2 and
Section 27581.4 of, and to add Sections 27581.1,
27583, 27583.2, 27583.4, 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:
civil actions: civil 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 and would
also authorize a county agricultural commissioner to bring a civil
action . The bill would also authorize the secretary or
a county agricultural commissioner, in lieu of prosecution, to
levy a civil an administrative penalty
of up to $10,000 for a violation of those provisions. 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 penal ties and
administrative penalties. The bill would set forth notice and
other procedural requirements for bringing and resolving an
administrative 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:
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.
SECTION 1. Section 27581.1 is added to the
Food and Agricultural Code , to read:
27581.1. (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.
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). 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.
(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 county agricultural
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 secretary or the
commissioner may levy a civil penalty
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, against a person who violates this
chapter or any regulation implemented pursuant to this chapter.
An administrative penalty levied pursuant to t his section
shall be set in accordance with the penalty schedule adopted by the
secretary pursuant to Section 27581.1.
(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.
(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.
SEC. 4. Section 27583.2 is added to the
Food and Agricultural Code , to read:
27583.2. 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.
SEC. 5. Section 27583.4 is added to the
Food and Agricultural Code , to read:
27583.4. 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.
SEC. 4. SEC. 6. 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
a civil an administrative 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.
SEC. 5. SEC. 7. Section 27585 is
added to the Food and Agricultural Code, to read:
27585. If an administrative hearing is requested pursuant to
Section 27581.2 27583.2 or
27583, 27583.4, 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.