BILL NUMBER: AB 606 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 1, 2009
PASSED THE ASSEMBLY SEPTEMBER 3, 2009
AMENDED IN SENATE AUGUST 26, 2009
AMENDED IN SENATE AUGUST 17, 2009
AMENDED IN SENATE JULY 15, 2009
AMENDED IN SENATE JUNE 22, 2009
AMENDED IN ASSEMBLY APRIL 16, 2009
AMENDED IN ASSEMBLY APRIL 2, 2009
INTRODUCED BY Assembly Member Ma
FEBRUARY 25, 2009
An act to add Chapter 26 (commencing with Section 79201) to Part 2
of Division 22 of the Food and Agricultural Code, relating to
agriculture, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 606, Ma. California Blueberry Commission.
Existing law establishes various commissions to promote
agricultural products from the state.
This bill would create the California Blueberry Commission in
state government with a prescribed membership, and would specify the
powers, duties, and responsibilities of the commission. The
commission would be authorized to carry out programs of education,
promotion, marketing, and research relating to blueberries. The bill
would authorize the commission to levy an annual assessment, not to
exceed a specified amount, on producers and handlers of blueberries,
and would authorize the expenditure of those funds for purposes of
implementing the bill, thereby making an appropriation.
The bill, except as necessary to conduct an election, would not
become operative until the producers and handlers of blueberries, by
referendum, vote in favor of the bill's provisions, as prescribed.
The bill would also provide for the suspension of the operation of
its provisions and for concluding the operations of the commission.
The bill would authorize the commission to levy a civil penalty, as
specified, on a person for rendering or furnishing false reports,
secreting, destroying, or altering records, failing to furnish a
report, or failing or refusing to furnish to the commission
information concerning the name and address of persons from whom
blueberries are received. The bill would authorize the commission to
bring certain civil actions to enforce the bill's provisions and
regulations adopted pursuant to these provisions. The bill would also
authorize the commission to recommend to the Secretary of Food and
Agriculture the adoption of blueberry quality standards, product
labeling, or marketing activity, as provided.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 26 (commencing with Section 79201) is added to
Part 2 of Division 22 of the Food and Agricultural Code, to read:
CHAPTER 26. CALIFORNIA BLUEBERRY COMMISSION
Article 1. Declaration and General Provisions
79201. The production and marketing of blueberries constitute an
important industry of this state that provides substantial and
necessary revenues for the state and employment for its citizens.
79202. The establishment of the commission is necessary for the
efficient creation and management of a research program to develop
improved varieties of blueberries, an integrated approach to manage
pests and diseases common to blueberries, and more efficient cultural
practices. The commission is also necessary for the efficient
development and management of a state, national, and international
advertising and promotion program that, combined with the research
program, will enhance the competitiveness of the California blueberry
industry within the national and international marketplace.
79203. The maintenance of the blueberry industry in California is
necessary to assure the public of a continuous supply of this
important commodity and the maintenance of needed levels of income
for those engaged in the blueberry industry of this state.
79204. The production and marketing of blueberries produced in
this state is hereby declared to be affected with a public interest.
This chapter is enacted in the exercise of the police power of this
state for the purpose of protecting the health, peace, safety, and
general welfare of the people of this state.
79205. The commission form of administration created by this
chapter is uniquely situated to provide those engaged in the
production of blueberries the opportunity to avail themselves of the
benefits of collective action in the broad fields of transportation,
pest management, advertising, promotion, food safety, production
research, nutrition, marketing research, quality and maturity
standards, the collection and dissemination of crop volume and
related statistics, and public education.
79206. No action taken by the commission, or by any individual in
accordance with this chapter or with rules and regulations adopted
under this chapter, shall be deemed a violation of the Cartwright Act
(Chapter 2 (commencing with Section 16700) of Part 2 of Division 7
of the Business and Professions Code), the Unfair Practices Act
(Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of
the Business and Professions Code), or any rule of statutory or
common law against monopolies or combinations in restraint of trade.
79207. It is hereby declared as a matter of legislative
determination that members of the commission are intended to
represent and further the interest of the particular industry
concerned and that this representation and furtherance is intended to
serve the public interest. Accordingly, the Legislature finds that
with respect to persons who are elected or appointed to the
commission, the particular industry concerned is tantamount to, and
constitutes the public generally within the meaning of Section 87103
of the Government Code.
Article 2. Definitions
79211. Unless the context otherwise requires, the definitions in
this article govern the construction of this chapter.
79212. "Advertising and promotion" mean, in addition to their
ordinarily accepted meaning, any plan directed toward increasing the
sale of blueberries in domestic or foreign markets and trade
promotion and activities for the prevention, modification, or removal
of trade barriers that affect the marketing of blueberries.
79213. "Blueberries" mean all blueberries produced in California
for commercial purposes.
79214. "Books and records" means books, records, contracts,
documents, memoranda, papers, correspondence, or other written data
pertaining to matters relating to the activities subject to this
chapter.
79215. "Commission" means the California Blueberry Commission.
79216. (a) "Districts" consist of the following:
(1) District 1 consists of all counties in the state along the
coastline, including San Diego.
(2) District 2 consists of the counties in the state that do not
border the coastline and lie north of a line drawn on the north
boundaries of the Counties of Fresno, Inyo, and San Benito.
(3) District 3 consists of all counties in the state that do not
border the coastline and lie south of the boundary line set forth in
paragraph (2).
(b) The boundaries of any district may be changed and districts
may be added or eliminated by a two-thirds vote of the commission,
which is concurred in by the secretary, so long as proper notice is
provided to all persons subject to this chapter prior to the action.
The boundaries need not coincide with county lines.
79217. "Ex officio members" are nonvoting members of the
commission.
79218. "Handle" means to engage in the business of a handler.
79219. (a) "Handler" means any person who engages, in this state,
in the operation of selling, marketing, or distributing blueberries
that he or she has produced or purchased or acquired from a producer,
or that he or she is marketing on behalf of a producer, whether as
owner, agent, employee, broker, or otherwise.
(b) When the handler is a corporation or a limited liability
company, all of the directors, officers, managers, and members of the
corporation or limited liability company in their capacity as
individuals shall be included, and any liability for failure to
collect or make payment of assessments to which a corporate handler
or a handler that is a limited liability company may be subject
pursuant to this chapter shall include identical liability upon each
individual director, officer, manager, or member of the corporation
or limited liability company.
(c) "Handler" does not include a retailer, except for a retailer
who purchases or acquires from any producer, or handles on behalf of
any producer, blueberries that were not previously subjected to
regulation by the commission.
79220. "Market" or "marketing" means to sell or otherwise
distribute blueberries into commercial channels or trade resulting in
the sale of blueberries.
79221. "Marketing research" means any research relating to the
sale of blueberries.
79222. "Marketing season" or "fiscal year" are synonymous terms
and mean the period beginning March 1 of any year and extending
through the last day of February of the following year.
79223. "Producer" and "grower" are synonymous terms and mean any
person who produces or causes to be produced on land totaling more
than five acres of blueberries for market and who shall, upon request
of the commission, provide proof of commodity sale.
79224. "Production research" means any research relating to the
production, harvest, and postharvest handling of blueberries.
79225. "Secretary" means the Secretary of Food and Agriculture.
Article 3. The California Blueberry Commission
79231. (a) There is in the state government the California
Blueberry Commission. Except as provided in subdivision (c), the
commission shall be composed of five producers, five handlers, and
one public member. Three producer members shall be elected by and
from producers within the respective districts, one from each
district, and two producer members shall be elected by and from
producers on a statewide basis without reference to districts. The
handler members shall be elected by and from handlers on a statewide
basis without reference to districts. The public member shall be
appointed to the commission by the secretary from nominees
recommended by the commission. Each entity subject to this chapter is
limited to two representatives, one representing producers and one
representing handlers.
(b) The secretary and other appropriate persons as determined by
the commission shall be ex officio members of the commission.
(c) The commission may modify the number of producers and handlers
who serve on the commission by a two-thirds vote of the commission
that is concurred in by the secretary, so long as proper notice is
provided to all persons subject to this chapter prior to the action
and the number of producers and the number of handlers who serve on
the commission remain equal.
79232. (a) The secretary may require the commission to correct or
cease any existing activity or function that is determined by the
secretary not to be in the public interest or in violation of this
chapter.
(b) If the commission refuses or fails to cease those activities
or functions or to make corrections as required by the secretary, the
secretary may, upon written notice, suspend all or a portion of the
activities or functions of the commission until such time as the
cessation or correction of activities or functions as required by the
secretary has been accomplished by the commission.
(c) Actions of the commission in violation of the secretary's
written notice shall be without legal force or effect. The secretary,
to the extent feasible, shall issue the written notice prior to the
commission entering into any contractual relationship affecting the
existing or proposed activities or functions that are the subject of
the written notice.
(d) Upon service of the written notice, the secretary shall notify
the commission in writing of the specific acts that he or she
determines are not in the public interest or are in violation of this
chapter, and his or her reasons for requiring a cessation or
correction of specific existing or proposed activities or functions,
and may make recommendations that will make those activities or
functions acceptable to the secretary.
79233. The commission or the secretary may bring an action for
judicial relief from the secretary's written notice, or from
noncompliance by the commission with the written notice, in a court
of competent jurisdiction, which may issue a temporary restraining
order, permanent injunction, or other applicable relief.
79234. The commission shall reimburse the secretary for all
expenditures incurred by the secretary in carrying out his or her
duties and responsibilities under this chapter. However, a court may,
if it finds that the secretary acted arbitrarily or capriciously in
restricting the activities or functions of the commission, relieve
the commission of the responsibility for payment of the secretary's
legal costs with regard to that action.
79235. Except for the ex officio members of the commission, each
member of the commission shall have an alternate member elected in
the same manner as the member. An alternate member, in the absence of
the member for whom he or she is an alternate, shall serve in place
of the member on the commission. An alternate member may also serve
in place of any other absent member of the same classification,
producer or handler, if the member's alternate is also absent.
However, an alternate may not serve in place of more than one absent
member at a meeting. An alternate member serving in place of a member
shall have and be able to exercise all rights, privileges, and
powers of the member when serving on the commission. In the event of
death, removal, resignation, or the disqualification of a member, the
alternate for the member, or another alternate of the same
classification if the alternate for the member is absent, shall act
as a member on the commission until a qualified successor is elected.
79236. Any vacancy on the commission including, but not limited
to, the failure of any person elected to the commission as a member
or alternate member to continue in his or her position due to a
change in status making him or her ineligible to serve, or due to
death, removal, or resignation, shall be filled by the appointment of
another person, for the unexpired portion of the term, by a majority
vote of the commission. However, the appointee shall fulfill all the
qualifications set forth in this article as required for the office
he or she is to occupy. The qualifications of any person to fill a
vacancy on the commission shall be certified in writing to the
secretary. The secretary shall notify the commission if he or she
determines that the person is not qualified.
79237. A producer member or his or her alternate on the
commission shall be an individual, partner, or employee of a producer
who has a financial interest in producing, or causing to be
produced, blueberries for market. The producer member or his or her
alternate shall be so qualified during the entire term of office.
79238. A handler member or his or her alternate on the commission
shall be an individual, partner, or employee of a handler who has a
financial interest in handling blueberries for market. The handler
member or his or her alternate shall be so qualified during the
entire term of office.
79239. The public member, or his or her alternate on the
commission, shall have all the powers, rights, and privileges of any
other member on the commission. The public member shall not have any
financial interest in the blueberry industry.
79240. The term of office of all members of the commission and
alternates, except any ex officio member, shall be two years from the
date of their election and until their successors are elected,
except, that of the first members of the commission, one-half shall
serve one year and one-half shall serve two years. The determination
of the term of each member shall be made by lot at the time of
election.
79241. The commission may sue and be sued and enter into
contracts. Copies of its proceedings, records, and acts, when
authenticated, shall be admissible in evidence in all courts of the
state, and shall be prima facie evidence of the truth of all
statements therein.
79242. A quorum of the commission is a majority of the producer
members and a majority of the handler members on the commission.
Except as otherwise provided in this chapter, the vote of a majority
of members present at a meeting at which there is a quorum shall
constitute an act of the commission.
79243. The secretary or his or her representatives shall be
notified and may attend each meeting of the commission and any
committee meeting of the commission. However, the secretary is not
entitled to attend an executive session of the commission called for
the purpose of discussing potential or actual litigation against the
department.
79244. No member of the commission or of any committee
established by the commission, which may include nonmembers of the
commission, shall receive a salary. Except for ex officio government
members, the members may receive reasonable and necessary traveling
expenses and meal allowances, as established by the commission, for
each day spent in actual attendance at, or in traveling to and from,
meetings of the commission or committees of the commission, or on
special assignment for the commission.
79245. If the secretary is required to concur in a decision of
the commission, he or she shall indicate his or her response to the
commission within 15 working days from notification of the decision.
The response may be a request that additional information be
provided.
79246. All moneys received by any person from assessments levied
under the authority of this chapter or otherwise received by the
commission shall be deposited in banks designated by the commission
and shall be disbursed by order of the commission through an agent or
agents designated for that purpose. Any authorized agent or agents
shall be bonded by a fidelity bond, executed by a surety company
authorized to transact business in the state, in favor of the
commission, in the amount of not less than twenty-five thousand
dollars ($25,000).
79247. The state shall not be liable for the acts of the
commission or its contracts. Payments of all claims arising by reason
of the administration of this chapter or acts of the commission
shall be limited to the funds collected by the commission. No member,
alternate member, or any employee or agent of the commission, shall
be personally liable on the contracts of the commission and no
member, alternate member, or employee of the commission shall be
responsible individually in any way to any producer, handler, or any
other person for error in judgment, mistakes, or other acts, either
of commission or omission, as principal, agent, or employee, except
for his or her own individual acts of dishonesty or crime. No member
or alternate member shall be held responsible individually for any
act or omission of any member or alternate member of the commission.
The liability of the members and alternate members shall be several
and not joint, and no member or alternate member shall be liable for
the default of any other member or alternate member.
Article 4. Powers and Duties of the Commission
79251. The powers and duties of the commission shall include, but
are not limited to, all of the following:
(a) Adopt and from time to time alter, rescind, modify, and amend
bylaws, rules, regulations, and orders for carrying out this chapter,
including rules for appeals from any bylaw, rule, regulation, or
order of the commission. These actions shall not be subject to
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code.
(b) Administer and enforce this chapter and perform all acts and
exercise all powers incidental to, or in connection with, or
determined reasonably necessary for, proper or advisable effectuation
of the purposes of this chapter.
(c) Appoint its own officers, including a chairperson, one or more
vice chairpersons, and any other officers as it determines
necessary. The officers shall have the powers and duties delegated to
them by the commission.
(d) Employ a person to serve at the pleasure of the commission as
president and chief executive officer of the commission, and other
personnel, including legal counsel, necessary to carry out this
chapter. The commission may retain a management firm or staff from
any board, commission, or committee of the state to perform the
functions prescribed by this subdivision under control of the
commission. If the person engages in any conduct that the secretary
determines is not in the public interest or in violation of this
chapter, the secretary shall notify the commission of the conduct and
request that corrective, and if appropriate, disciplinary action, be
taken by the commission. If the commission fails or refuses to
correct the situation or to take disciplinary action satisfactory to
the secretary, the secretary may suspend or discharge the person.
(e) Fix the compensation for all employees of the commission.
(f) Appoint committees composed of both members and nonmembers of
the commission to advise the commission in carrying out this chapter.
(g) Establish offices and incur expenses, invest funds, enter into
contracts and agreements, and create liabilities and borrow funds in
advance of receipt of assessments as determined necessary by the
commission for the proper administration and enforcement of this
chapter and the performance of its duties.
(h) Keep accurate books, records, and accounts of all of its
dealings, which books, records, and accounts shall be subject to an
annual audit by an auditing firm selected by the commission with the
concurrence of the secretary. The audit shall be made a part of an
annual report to all producers and handlers of blueberries, and
copies of the audit shall be submitted to the Legislature and the
department. In addition, the secretary may, as he or she determines
necessary, conduct, or cause to be conducted, a fiscal and compliance
audit of the commission.
(i) Promote the sale of blueberries by advertising and any other
promotional means, including cost-sharing advertising, for the
purpose of maintaining and expanding present markets and creating new
and larger intrastate, interstate, and foreign markets for
blueberries, and to educate and instruct the public with respect to
the uses, healthful properties, and nutritional value of blueberries.
(j) Educate and instruct the wholesale and retail trade with
respect to proper methods of handling and selling blueberries, make
market surveys and analyses, and present facts to, and negotiate
with, state, federal, and foreign agencies on matters that affect the
marketing of blueberries.
(k) Make, in the name of the commission, contracts to render
service in formulating and conducting plans and programs, and any
other contracts or agreements the commission determines necessary for
the promotion of blueberries.
(l) Conduct, and contract with others to conduct, scientific
research, including the study, analysis, dissemination, and
accumulation of information obtained from research or elsewhere with
respect to cultural and production practices, good agricultural
practices, and marketing and distribution of blueberries. In
connection with the research, the commission shall have the power to
accept contributions of, or to match, private, state, or federal
funds that may be available for these purposes, and to employ or make
contributions of funds to other persons or state or federal agencies
conducting the research.
(m) Collect information and publish and distribute to producers
and handlers a bulletin or other communication for dissemination of
information, including, but not limited to, crop statistics relating
to the blueberry industry.
(n) Establish an assessment rate to defray operating costs of the
commission.
(o) Establish an annual budget according to accepted accounting
practices. The budget shall be concurred in by the secretary prior to
disbursement of funds, except for disbursements made pursuant to
subdivision (e).
(p) Submit to the secretary for his or her concurrence, an annual
statement of contemplated activities authorized under this chapter.
(q) Investigate and prosecute civil violations of this chapter and
file complaints with appropriate law enforcement agencies or
officers for suspected criminal violations of this chapter.
(r) Administer any program authorized in Article 9 (commencing
with Section 79301).
(s) Prescribe the form and manner by which proponents and
opponents of the commission may contact producers and handlers so
long as all expenses associated with the contacts are paid in
advance.
(t) Develop and promote good agricultural practices and other food
safety practices for the production of blueberries.
79252. (a) To prevent unfair trade practices which are
detrimental to California's blueberry industry, including, but not
limited to, deception and misinformation, the commission shall
collect and disseminate to any and all interested persons, handler
f.o.b. (free on board), market price information based on sales that
have occurred.
(b) The identity of each handler reporting information and the
information reported under this section shall be kept confidential
and not made public under any circumstances. Information that gives
industry totals, averages, and other similar data may be disclosed by
the commission.
(c) The procedure for the collection and dissemination of the
information pursuant to this section shall be approved by the
secretary.
Article 5. Implementation and Voting Procedures
79261. (a) Within 15 days after the effective date of this
chapter, the secretary shall establish a list of producers and
handlers eligible to vote on the implementation of this chapter. In
establishing the list, the secretary shall require that producers and
handlers of blueberries in California submit the names, mailing
addresses, and the volume of blueberries produced by each producer
and handled by each handler during the preceding marketing season.
The request for the information shall be in writing. The information
shall be filed within 10 days following receipt of the written
request for information.
(b) Any producer or handler of blueberries whose name does not
appear upon the secretary's list may have his or her name placed on
the list by filing with the secretary a signed statement identifying
himself or herself as a producer or handler. Failure to be on the
list does not exempt the producer or handler from paying assessments
under this chapter.
79262. This chapter, except as necessary to conduct an
implementation referendum vote, shall not become operative until the
secretary finds the following in a referendum vote conducted by the
secretary:
(a) At least 40 percent of the total number of producers from the
list established by the secretary pursuant to this article
participate, and that either of the following occurs:
(1) Sixty-five percent of the producers who voted in the
referendum voted in favor of this chapter, and the producers so
voting produced a majority of the total quantity of blueberries
produced in the preceding marketing season by all of the producers
voting in the referendum.
(2) A majority of the producers who voted in the referendum voted
in favor of this chapter, and the producers so voting produced 65
percent or more of the total quantity of blueberries produced in the
preceding marketing season by all of the producers voting in the
referendum.
(b) At least 40 percent of the total number of handlers from the
list established by the secretary pursuant to this article
participate, and that either of the following occurs:
(1) Sixty-five percent of the handlers who voted in the referendum
voted in favor of this chapter, and the handlers so voting handled a
majority of the total quantity of blueberries handled in the
preceding marketing season by all of the handlers voting in the
referendum.
(2) A majority of the handlers who voted in the referendum voted
in favor of this chapter, and the handlers so voting handled 65
percent or more of the total quantity of blueberries handled in the
preceding marketing season by all of the handlers voting in the
referendum.
79263. The secretary shall establish a period in which to conduct
the referendum which shall not be less than 10 days or more than 60
days in duration and may prescribe additional procedures necessary to
conduct the referendum. If the initial period established is less
than 60 days, the secretary may extend the period. However, the total
referendum period may not exceed 60 days.
79264. Nonreceipt of a ballot shall not invalidate a referendum.
79265. If the secretary finds that a favorable vote has been
given as provided in Section 79262, he or she shall so certify and
give notice of the vote to all producers and handlers whose names and
addresses are on file with the secretary.
79266. If the
secretary finds that a favorable vote has not been given as provided
in this article, he or she shall so certify and declare this chapter
inoperative. The secretary may conduct another implementation
referendum vote one or more years after the previous vote has been
taken.
79267. (a) Upon certification of the commission, the secretary
shall contact all producers and handlers in a manner determined by
the secretary for the purpose of nominating and electing persons to
the commission. To be eligible for election to the commission,
nominees shall present to the secretary a nomination petition with
the signatures of at least three eligible persons.
(b) Subsequent to the first selection of members of the
commission, persons to be elected to the commission shall be selected
pursuant to nomination and election procedures established by the
commission with the concurrence of the secretary.
79268. Prior to the referendum vote conducted by the secretary
pursuant to this article, the proponents of the commission shall
deposit with the secretary an amount of funds determined necessary by
the secretary to defray the expenses of preparing the necessary
lists and information and conducting the vote. Any funds not used for
this purpose shall be returned to the proponents of the commission
who deposited the funds with the secretary. Upon establishment of the
commission, the commission may reimburse the proponents of the
commission for any funds deposited with the secretary and for any
legal expenses and costs incurred in establishing the commission.
Article 6. Assessments and Records
79271. (a) The commission shall, not later than March 1 of each
year, or as soon thereafter as possible, establish the assessment to
be paid by the producers and handlers for the marketing season. The
assessment shall not be more than two and one-half cents ($0.025) per
pound for blueberries handled. Of the assessment one-half shall be
assessed to producers, and one-half shall be assessed to handlers.
(b) An assessment greater than the amounts in this section may not
be charged unless it is approved in accordance with the voting
requirements of Section 79262.
79272. This chapter does not apply to blueberries produced only
for a producer's home use or to blueberries that are used only for
ornamental purposes.
79273. Every person who handles blueberries shall keep a complete
and accurate record of all blueberries handled by him or her with
the name of the producer whose blueberries were handled. A producer
who delivers or markets blueberries to persons other than to a
handler shall keep a complete and accurate record of all those
blueberries. The records shall contain information required by the
commission. The records shall be preserved by the producer or handler
for a period of two years and shall be offered and submitted for
inspection at any reasonable time upon written demand of the
commission or its duly authorized agent.
79274. (a) All proprietary information obtained by the commission
or the secretary from any source, including the names and addresses
of producers and handlers, shall be confidential and shall not be
disclosed except when required by court order in a judicial
proceeding.
(b) Information on volume shipments, crop value, and any other
related information that is required for reports to governmental
agencies, financial reports to the commission or aggregate sales and
inventory information, and any other information that gives only
totals, but excludes individual information, may be disclosed by the
commission.
79275. The first handler of blueberries being assessed shall
deduct the assessment from amounts paid by him or her to the
producer, and shall be a trustee of the funds until they are paid to
the commission at the time and in the manner prescribed by the
commission. A producer who handles blueberries shall pay an
assessment directly to the commission at the time and in the manner
prescribed by the commission.
79276. Every handler shall be personally liable for the payment
of the collected assessments from producers, and failure to collect
the assessment from any producer shall not exempt the handler from
liability.
79277. Any assessment that is levied as provided in this chapter
is a personal debt of every producer and handler so assessed.
79278. (a) Any person who fails to file a return or pay any
assessment within the time required by the commission shall pay to
the commission a penalty of 10 percent of the amount of the
assessment determined to be past due and, in addition, interest on
the unpaid balance at the rate of 1.5 percent per month.
(b) In addition to any other penalty imposed, the commission may
require any person who fails to pay any assessment or related charge
pursuant to this article to furnish and maintain a surety bond in a
form and amount and for a period of time specified by the commission
as assurance that all payments to the commission will be made when
due.
Article 7. Actions and Penalties
79281. A civil penalty not exceeding one thousand dollars
($1,000) may be levied by the commission upon a person who does any
of the following:
(a) Willfully to render or furnish a false report, statement, or
record required by the commission, or in any way to affect the
shipment and marketing of blueberries in order to avoid payment of
assessments on the product's highest value.
(b) Fail to render or furnish a report, statement, or record
required by the commission.
(c) When engaged in the shipping or processing of blueberries or
in the wholesale or retail trade of blueberries, to fail or refuse to
furnish to the commission or its duly authorized agents, upon
request, information concerning the name and address of the persons
from whom he or she has received blueberries and the quantity so
received.
(d) Secrete, destroy, or alter records required to be kept by this
chapter.
79282. The commission shall establish procedures for the purpose
of according individuals aggrieved by its actions or determinations
an informal hearing before the commission, or before a committee of
the commission designated for this purpose. Appeals from decisions of
the commission may be made to the secretary. The determination of
the secretary shall be subject to judicial review upon petition filed
with the appropriate superior court.
79283. (a) The commission may commence civil actions and utilize
all remedies provided in law or equity for the collection of
assessments and civil penalties, and for obtaining injunctive relief
or specific performance, relating to this chapter and the rules and
regulations adopted under this chapter. A court shall issue to the
commission any requested writ of attachment or injunctive relief upon
a prima facie showing by verified complaint that a named defendant
has violated this chapter or any other rule or regulation of the
commission, including, but not limited to, the nonpayment of
assessments. No bond shall be required to be posted by the commission
as a condition for the issuance of any writ of attachment or
injunctive relief.
(b) A writ of attachment shall be issued pursuant to Chapter 5
(commencing with Section 485.010) of Title 6.5 of Part 2 of the Code
of Civil Procedure, except that the showing specified in Section
485.010 is not required. Injunctive relief shall be issued pursuant
to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of
the Code of Civil Procedure, except that the showing of irreparable
harm or of inadequate remedy at law specified by Section 526 or 527
is not required.
(c) Upon entry of any final judgment on behalf of the commission
against any defendant, the court shall enjoin the defendant from
conducting any type of business regarding blueberries until there is
full compliance with, and satisfaction of, the judgment.
(d) Upon a favorable judgment for the commission, the court may
order that the commission be reimbursed for reasonable attorney's
fees and other actual related costs. Venue for these actions is at
the domicile or place of business of the defendant or in the county
of the principal office of the commission. The commission may be sued
only in the county of its principal office.
79284. Any action by the commission for any penalty or other
remedy that is prescribed under this chapter shall be commenced
within two years from the date of discovery of the alleged violation.
Any action against the commission by any person shall be commenced
within two years from the date of the alleged violation.
79285. The commission is not required to allege or prove that an
adequate remedy at law does not exist in any action brought under
this chapter.
79286. This chapter shall be liberally construed. If any section,
clause, or part of this chapter is for any reason held
unconstitutional or invalid as applied to any person or as applied
under certain circumstances, that decision shall not affect the
remaining portions of this chapter or the application of this chapter
to any other persons or under any other circumstance.
79287. The termination of this chapter shall not affect or waive
any right, duty, obligation, or liability that has arisen or that may
thereafter arise in connection with this chapter, release or
extinguish any violation of this chapter, or affect or impair any
right or remedies of the commission with respect to any violation.
Article 8. Continuation or Suspension and Termination
79291. (a) Five years after implementation of this chapter, the
secretary shall hold a public hearing, after providing proper notice
to all persons subject to this chapter and any other persons or
entities who have requested, in writing, notice of the hearing, to
determine whether the operation of this chapter should be continued.
If the secretary finds after the hearing that a substantial question
exists among the persons assessed under this chapter regarding
whether the operation of this chapter should be continued, the
secretary shall submit the chapter to a reapproval referendum to be
conducted among producers and handlers to determine whether the
operation of this chapter shall be reapproved and continued in
effect.
(b) If the secretary finds after conducting a hearing that no
substantial question exists or, if a reapproval referendum is
required, that a majority of the eligible producers and a majority of
eligible handlers voting in the referendum voted in favor of
continuing the operation of this chapter, the secretary shall so
certify and this chapter shall remain operative. If the secretary
finds that a favorable vote has not been given, he or she shall so
certify and declare the operation of this chapter and the commission
suspended upon the expiration of the current marketing season.
Thereupon, the operations of the commission shall be concluded and
funds distributed in the manner provided in Section 79294. No bond or
security shall be required for any such referendum.
79292. Following a hearing, and favorable referendum if required,
the process specified in Section 79291 shall be conducted by the
secretary every five years thereafter between March 1 and February
28, unless a referendum is conducted as the result of a petition
pursuant to Section 79293. In that case, the hearing, and referendum
if required, shall be conducted every five years following the
industry petitioned referendum.
79293. (a) Upon a finding by a two-thirds vote of the commission
that the operation of this chapter has not tended to effectuate its
declared purposes, the commission may recommend to the secretary that
the commission be suspended. Any suspension shall not become
effective until the expiration of the current marketing season.
(b) The secretary shall, upon receipt of a recommendation, or may,
after a public hearing to review a petition filed with him or her
requesting such suspension, signed by 15 percent of the producers by
number who produced not less than 15 percent of the volume in the
immediately preceding marketing season and 15 percent of the handlers
by number who handled not less than 15 percent of the volume in the
immediately preceding marketing season, cause a referendum to be
conducted among the listed producers and handlers to determine if the
operations of the commission shall be suspended. However, the
secretary shall not hold a referendum as a result of the petition
unless the petitioner shows by the weight of evidence that this
chapter has not effectuated its declared purposes.
(c) The secretary shall establish a referendum period, which shall
not be less than 10 days or more than 60 days in duration. The
secretary may prescribe additional procedures necessary to conduct
the referendum. At the close of the established referendum period,
the secretary shall tabulate the ballots filed during the period. The
secretary shall suspend the operation of this chapter, if the
secretary finds the following:
(1) At least 40 percent of the total number of producers from the
list established by the secretary participate, and that either of the
following occurs:
(A) Sixty-five percent of the producers who voted in the
referendum voted in favor of suspension, and the producers so voting
produced a majority of the total quantity of blueberries produced in
the preceding marketing season by all of the producers voting in the
referendum.
(B) A majority of the producers who voted in the referendum voted
in favor of suspension, and the producers so voting produced 65
percent or more of the total quantity of blueberries produced in the
preceding marketing season by all of the producers voting in the
referendum.
(2) At least 40 percent of the total number of handlers from the
list established by the secretary participate, and that either of the
following occurs:
(A) Sixty-five percent of the handlers who voted in the referendum
voted in favor of suspension, and the handlers so voting handled a
majority of the total quantity of blueberries handled in the
preceding marketing season by all of the handlers voting in the
referendum.
(B) A majority of the handlers who voted in the referendum voted
in favor of suspension, and the handlers so voting handled 65 percent
or more of the total quantity of blueberries handled in the
preceding marketing season by all of the handlers voting in the
referendum.
79294. After the effective date of suspension of this chapter and
of the commission, the operations of the commission shall be
concluded and all moneys held by the commission, and moneys collected
by assessment and not required to defray the expenses of concluding
and terminating operations of the commission, shall be returned upon
a pro rata basis to all persons from whom assessments were collected
in the immediately preceding current marketing season. However, if
the commission finds that the amounts returnable are so small as to
make impractical the computation and remitting of the pro rata refund
to those persons, any moneys remaining and any moneys remaining
after payment of all expenses of winding up and terminating
operations shall be withdrawn from the approved depository and paid
into an appropriate state or federal program or used to fund
activities related to the subject matter of this chapter.
79295. Upon suspension of the operation of this chapter and of
the commission, the commission shall mail a copy of the notice of
suspension to all producers and handlers affected by the suspension
whose names and addresses are on file.
Article 9. Quality Standards
79301. The commission may recommend to the secretary that he or
she adopt blueberry quality standards, product labeling, or engage in
any other activity authorized pursuant to the California Marketing
Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of
Division 21). The adoption of standards or any of these activities
shall be in accordance with the procedures specified in that act
unless otherwise specified in this article.
79302. Any activity recommended by the commission shall not
become operative until approved in the manner specified in Section
79262.
79303. Any activity adopted pursuant to this article shall be
implemented by the secretary at the beginning of the marketing season
next succeeding the date on which the activity is approved by the
secretary.
79304. The commission shall serve as the advisory body to the
secretary on all matters pertaining to this article.