BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON AGRICULTURE
                          Senator Cathleen Galgiani, Chair
                                2015 - 2016  Regular 

          Bill No:           AB 1039         Hearing Date: 7/7/15
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          |Author:    |Committee on Agriculture                             |
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          |Version:   |4/21/15   Amended                                    |
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          |Urgency:   |No                    | Fiscal:   |Yes              |
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          |Consultant:|Anne Megaro                                          |
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             Subject:  Fertilizing materials: violations: administrative  
                         penalty: filing of final judgment.

           SUMMARY  :
          This bill would remove the authority of the California  
          Department of Food and Agriculture (CDFA) to levy a civil  
          penalty against a person in violation provisions relating to  
          fertilizer, and would instead authorize CDFA to levy an  
          administrative penalty; would authorize CDFA to file the  
          department's final decision directing payment of an  
          administrative penalty and, if applicable, an order denying a  
          petition for a writ of administrative mandamus with the county  
          court clerk who shall enter judgement immediately and at no  
          cost.

           BACKGROUND AND EXISTING  
          LAW  :

          The Fertilizing Materials Inspection Program within CDFA ensures  
          that fertilizing materials distributed in California are safe,  
          effective, and properly identified as to the quality and  
          quantity of materials represented on the product label.   
          Inspectors collect and test samples, respond to consumer  
          complaints, and enforce laws and regulations. 

          Fertilizer Research and Education Program (FREP) was established  
          in 1990 to provide funding for research and education regarding  
          the use and handling of fertilizing material including, but not  
          limited to, any environmental effects.  FREP is funded through a  
          mill fee on the sale of fertilizer materials.








          AB 1039 (Committee on Agriculture)               Page 2 of ?
          
          
          Existing law:

             1)   Defines "fertilizing material" as any commercial  
               fertilizer, agricultural mineral, auxiliary soil and plant  
               substance, organic input material, or packaged soil  
               amendment.

             2)   Requires CDFA to adopt and enforce regulations relating  
               to the manufacturing, labeling, tonnage reporting,  
               inspection, and distribution of fertilizing materials.
             3)   Requires every person who manufactures or distributes  
               fertilizing materials to obtain a license from CDFA.

             4)   Requires every fertilizer material label, and any  
               changes to that label other than weight or package size, to  
               be registered with CDFA.  CDFA may require proof of  
               labeling statements, including scientific data and  
               evaluation.

             5)   Establishes the Fertilizer Inspection Advisory Board,  
               consisting of nine members appointed by the secretary, to  
               make recommendations on all matters pertaining to  
               fertilizing materials such as inspection and enforcement,  
               research and education, budget, and fee rates.

             6)   Provides for misdemeanor violations, hearings, and  
               appeals process.

             7)   Authorizes the secretary to levy a civil penalty, not to  
               exceed $5,000, against persons in violation of fertilizing  
               materials laws and regulations.

           PROPOSED  
          LAW  :

          This bill:

             1)   Replaces CDFA's authority to levy a civil penalty  
               against a person in violation of provisions relating to  
               fertilizer, and instead authorizes CDFA to levy an  
               administrative penalty against that person.

             2)   Makes conforming changes from civil to administrative  
               penalties.









          AB 1039 (Committee on Agriculture)               Page 3 of ?
          
          
             3)   Authorizes CDFA to, after a hearing, file the  
               department's final decision directing payment of an  
               administrative penalty and, if applicable, an order denying  
               a petition for a writ of administrative mandamus with the  
               county court clerk.

             4)   Requires the county court clerk to enter judgement  
               immediately and at no cost.

           ARGUMENTS IN SUPPORT:
           According to the author, "Due to most county district attorneys  
          having very full criminal prosecution schedules, many violations  
          of the Food and Agricultural Code don't get prosecuted.  It has  
          been the policy of the Legislature in recent years to adopt  
          similar provisions for direct adjudication with the courts for  
          various violations enforced by CDFA and the county agricultural  
          commissioners.  The policy concern raised legislatively has been  
          that 'due process' is followed and an 'appeal' option is made  
          available to the violator.  These requirements have been  
          followed and are included in this proposal."

           COMMENTS  :
          
          Civil vs. administrative penalties.  As stated in the author's  
          argument, additional avenues are needed to adjudicate those in  
          violation of provisions of the Food and Agricultural Code.  In  
          the past few years, several bills have addressed this issue by  
          authorizing CDFA to levy administrative penalties instead of  
          taking violators to court (see related legislation, below).   
          This bill is one more in this series, and perhaps not the last,  
          that seeks to penalize violators without requiring civil action.  
           These bills also require specific notice, hearing, and appeals  
          procedures to afford the alleged violator their right of due  
          process.

           RELATED  
          LEGISLATION  :

          AB 689 (Dodd), currently on the Senate Floor.  Among other  
          provisions, would authorize CDFA and county agricultural  
          commissioners, in lieu of prosecution, to levy an administrative  
          penalty on violators of egg marketing provisions, as specified.

          AB 2378 (Huber), Chapter 303, Statutes of 2012.  Among other  
          provisions, increases fines and penalties for violations of  








          AB 1039 (Committee on Agriculture)               Page 4 of ?
          
          
          provisions regarding transportation of inedible kitchen grease  
          and authorizes CDFA, after completion of the appeals process, to  
          file a certified copy of the department's final decision  
          directing payment of a civil penalty, and any order denying a  
          petition for a writ of administrative mandamus, with the county  
          clerk at no cost.

          AB 2686 (Agriculture), Chapter 395, Statutes of 2010.   
          Authorizes county agricultural commissioners to file a certified  
          copy of the commissioner's final decision directing payment of a  
          civil penalty levied on violators of the California Organic  
          Products Act of 2003, and any order denying a petition for a  
          writ of administrative mandamus, with the county clerk at no  
          cost.

          AB 856 (Caballero), Chapter 257, Statutes of 2009.  Expands  
          definitions pertaining to organic fertilizer materials and adds  
          new requirements, fees, and penalties.  

           PRIOR  
          ACTIONS  :
                         
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          |Assembly Floor:                       |74 - 0                     |
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          |Assembly Appropriations Committee:    |17 - 0                     |
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          |Assembly Agriculture Committee:       |9 - 0                      |
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           SUPPORT  :
          
          None received

           OPPOSITION  :
          
          None received

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