BILL ANALYSIS Ó SENATE COMMITTEE ON AGRICULTURE Senator Cathleen Galgiani, Chair 2015 - 2016 Regular Bill No: AB 1039 Hearing Date: 7/7/15 ----------------------------------------------------------------- |Author: |Committee on Agriculture | |-----------+-----------------------------------------------------| |Version: |4/21/15 Amended | ----------------------------------------------------------------- ---------------------------------------------------------------- |Urgency: |No | Fiscal: |Yes | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Anne Megaro | | | | ----------------------------------------------------------------- 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 : ------------------------------------------------------------------ |Assembly Floor: |74 - 0 | |--------------------------------------+---------------------------| |Assembly Appropriations Committee: |17 - 0 | |--------------------------------------+---------------------------| |Assembly Agriculture Committee: |9 - 0 | | | | ------------------------------------------------------------------ SUPPORT : None received OPPOSITION : None received -- END --