California Assembly Bill AB689 Introduced / Bill

 BILL NUMBER: AB 689INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Dodd FEBRUARY 25, 2015 An act to amend Sections 27581.2 and 27581.4 of, and to add Sections 27583, 27584, and 27585 to, the Food and Agricultural Code, relating to eggs. LEGISLATIVE COUNSEL'S DIGEST AB 689, as introduced, 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. The bill would also authorize a county agricultural commissioner, in lieu of prosecution, to levy a civil penalty of up to $10,000 for a violation of those provisions. The bill would set forth notice and other procedural requirements for bringing and resolving an 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  director   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.  SEC. 2. Section 27581.4 of the Food and Agricultural Code is amended to read: 27581.4. (a) The director   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  one   ten  thousand dollars  ($1,000).   ($10,000).  (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 commissioner may levy a civil penalty against a person who violates this chapter or any regulation implemented pursuant to this chapter. (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 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 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. Section 27585 is added to the Food and Agricultural Code, to read: 27585. If an administrative hearing is requested pursuant to Section 27581.2 or 27583, 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.