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SB-668 Commercial feed: violations: administrative penalty.(2017-2018)

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Date Published: 06/11/2018 09:00 PM
SB668:v96#DOCUMENT

Amended  IN  Assembly  June 11, 2018
Amended  IN  Senate  May 02, 2017
Amended  IN  Senate  April 20, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 668


Introduced by Senator McGuire

February 17, 2017


An act to repeal Section 15620 of the Government Code, relating to the State Board of Equalization. An act to amend Sections 14991, 15042, 15056, 15071, 15071.5, 15075, 15091, and 15092 of, to add Sections 15071.1, 15071.3, 15071.4, and 15082 to, and to repeal Section 15081 of, the Food and Agricultural Code, relating to commercial feed.


LEGISLATIVE COUNSEL'S DIGEST


SB 668, as amended, McGuire. State Board of Equalization: reports: extension to file. Commercial feed: violations: administrative penalty.
Existing law regulates the manufacture, distribution, and labeling of commercial feed, and requires the Secretary of Food and Agriculture to enforce those provisions and the regulations adopted pursuant to those provisions. Existing law provides that generally a violation of a provision relating to commercial feed, or the regulations adopted by the Department of Food and Agriculture related to commercial feed, is a misdemeanor. Existing law provides that the sale or distribution of commercial feed without a label, the sale or distribution of commercial feed that is deemed to bear or contain a poisonous, deleterious, or nonnutritive substance in amounts which are specified as being unsafe, or the manufacture or distribution of commercial feed without a valid license, are punishable as infractions, except as specified. Under existing law, unless a different penalty is expressly provided, a violation of any provision of the Food and Agricultural Code is a misdemeanor.
This bill would eliminate the provisions specifying different criminal penalties for a violation of commercial feed provisions. The bill would provide that it is unlawful for any person to manufacture or distribute in this state any commercial feed without complying with these provisions and regulations adopted relating to commercial feed. By changing the penalty for a crime and by expanding the definition of a crime, this bill would impose a state-mandated local program.
Existing law authorizes the secretary to levy a civil penalty against a person who violates certain provisions relating to commercial feed in an amount not to exceed $500 for each violation in lieu of any other penalty. Existing law requires a person charged with a violation to receive notice of the nature of the violation before a civil penalty is levied. Existing law requires any funds recovered by levying the civil penalty to be deposited in a special account in the Department of Food and Agriculture Fund and provides that the moneys in the fund are continuously appropriated to cover costs related to the enforcement of provisions relating to agricultural chemicals, livestock remedies, and commercial feeds.
This bill would eliminate these requirements on civil penalties and the maximum amount for a civil penalty. The bill would require the department to levy an administrative penalty against a person who violates any provisions or regulations relating to commercial feed in an amount of not more than $5,000 for the first violation and not less than $5,000 for each subsequent violation. The bill would authorize the secretary to issue a notice of warning, in lieu of an administrative penalty, upon a finding that the violation is minor or unintentional. The bill would require funds recovered by the secretary to be deposited in a special account in the Department of Food and Agriculture Fund. The bill would provide that funds in the account are available, upon appropriation by the Legislature, to the department for the purpose of administration and enforcement of commercial feed provisions. The bill would require the department to be entitled to receive reimbursement from any person found in violation of the commercial feed provisions for any reasonable attorney’s fees and other related costs.
Existing law authorizes the secretary, after a hearing, to refuse to issue or renew, or to suspend or revoke, a license for a violation of the laws and regulations relating to commercial feed.
This bill would authorize a person against whom a licensing action is initiated to appeal to the secretary by requesting a hearing and, if a hearing is not requested, the licensing action would constitute a final and nonreviewable order.
Existing law requires any lot of commercial feed which is seized and held, unless previously analyzed, to be sampled and promptly analyzed within a reasonable period of time, for the purpose of determining if the commercial feed is, in fact, in violation of provisions or regulations relating to commercial feed.
This bill would authorize the secretary to prohibit a person from obtaining a license to sell commercial feed for 3 years if the person is found to adulterate, misbrand, or alter any commercial feed with the result that the feed would be inconsistent with the label claims or whose commercial feed is seized and determined to be in violation of provisions or regulations.
This bill would recast provisions relating to commercial feed and make other nonsubstantive changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law authorizes the State Board of Equalization to extend the time fixed for filing any report required by it for a period not to exceed 30 days, except as otherwise provided.

This bill would repeal that authorization.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 14991 of the Food and Agricultural Code is amended to read:

14991.
 (a) Except as otherwise provided in this chapter or by regulations of the director which secretary that declare that the statement required pursuant to this article is not applicable to certain products to carry out this chapter, every lot, parcel, or package of commercial feed distributed within this state shall have affixed to it, or be accompanied by, a label.
(b) The sale or distribution of any lot, parcel, or package of commercial feed without a label, as specified in this chapter, is an infraction punishable by a fine of not more than two hundred fifty dollars ($250) if at least one notice of warning has been issued by the director for a prior violation within the preceding 12-month period. A second or subsequent violation of this subdivision within a 12-month period is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000). a violation of this chapter.

SEC. 2.

 Section 15042 of the Food and Agricultural Code is amended to read:

15042.
 The sale or distribution of any lot, parcel, or package of commercial feed deemed by the director secretary to bear or contain a poisonous, deleterious, or nonnutritive substance in amounts which that are specified as being unsafe by the director secretary by regulation is an infraction punishable by a fine of not more than five hundred dollars ($500). A second or subsequent violation of this section is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000). a violation of this chapter.

SEC. 3.

 Section 15056 of the Food and Agricultural Code is amended to read:

15056.
 The penalty for the manufacture or distribution of a commercial feed without a valid license as specified in Section 15051 is an infraction punishable by a fine of not more than five hundred dollars ($500). A second or subsequent violation of this section is a misdemeanor punishable by a fine of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000). a violation of this chapter.

SEC. 4.

 Section 15071 of the Food and Agricultural Code is amended to read:
15071.

(a)Unless otherwise specified, any violation of this chapter or the regulations adopted pursuant to it is a misdemeanor which is punishable by a fine of not more than five hundred dollars ($500) for the first violation and not less than one thousand dollars ($1,000) for each subsequent violation.

(b)The director

15071.
 (a) The secretary may, after a hearing, refuse to issue or renew, or may suspend or revoke a license for any violation of this chapter or any regulation which that is adopted pursuant thereto. to this chapter.

(c)Upon calling a hearing, the director shall serve notice personally or by mail to the licensee specifying the time and place at least 10 days prior to the hearing. At the hearing, the director may do all of the following:

(1)Administer oaths and hear testimony.

(2)Issue subpoenas requiring the attendance of the licensee and witnesses.

(3)Compel the disclosure of the licensee and any witness of all the facts known to him or her regarding the case. In no instance shall any employee of the Feed, Fertilizer, and Livestock Drugs Branch serve as the hearing officer in any case under this section.

(d)After the loss of a license, the person so deprived has the right to appeal this action to the director.

(b) A person against whom a licensing action is initiated may appeal to the secretary by requesting a hearing. If a hearing is not requested, the licensing action shall constitute a final and nonreviewable order.
(c) An appeal pursuant to this section shall be submitted in accordance with subdivision (d) of Section 15071.1 and with Section 1094.5 of the Code of Civil Procedure.

SEC. 5.

 Section 15071.1 is added to the Food and Agricultural Code, to read:

15071.1.
 (a) The department shall levy an administrative penalty against a person who violates this chapter or the regulations adopted pursuant to it in an amount of not more than five thousand dollars ($5,000) for the first violation and not less than five thousand dollars ($5,000) for each subsequent violation. The department may consider the severity, intent, and repeat nature of violations in issuing penalties. The department shall base the amount of the penalty assessed for each violation upon the nature of the violation, the seriousness of the effect of the violation upon the effectuation of the purposes and provisions of this chapter, and the impact of the penalty on the violator, including the deterrent effect on future violations.
(b) The secretary may issue a notice of warning, in lieu of an administrative penalty, upon a finding that the violation is minor or unintentional.
(c) A person against whom an administrative penalty is levied shall be afforded an opportunity for a hearing before the secretary, upon a request made within 30 days after the date of issuance of the notice of penalty. At the hearing, the person shall be given the right to present evidence on his or her own behalf. If a hearing is not requested, the administrative penalty shall constitute a final and nonreviewable order.
(d) If a hearing is held, review of the decision of the secretary may be sought by the person against whom the administrative penalty is levied within 30 days of the date of the final order of the secretary pursuant to Section 1094.5 of the Code of Civil Procedure.
(e) After completion of the hearing procedure pursuant to subdivision (c), the secretary may file a certified copy of the department’s final decision that directs payment of an administrative penalty, and if applicable, any order denying a petition for a writ of administrative mandamus, with the clerk of the superior court of any county that has jurisdiction over the matter. Judgment shall be entered immediately by the clerk in conformity with the decision or order. Fees shall not be charged by the clerk of the superior court for performance of any official services required in connection with the entry of judgment and the satisfaction of the judgment pursuant to this section.
(f) Any funds recovered by the secretary pursuant to this section shall be deposited in a special account, which is hereby created within the Department of Food and Agriculture Fund. Upon appropriation by the Legislature, moneys in the account are available to the department for the administration and enforcement of this chapter.

SEC. 6.

 Section 15071.3 is added to the Food and Agricultural Code, to read:

15071.3.
 (a) The department shall be entitled to receive reimbursement from any person who is found in violation of this chapter for any reasonable attorney’s fees and other related costs, including, but not limited to, investigative costs, involved in enforcement of this chapter.
(b) The department shall use all funds received pursuant to this chapter for the purposes of this chapter.

SEC. 7.

 Section 15071.4 is added to the Food and Agricultural Code, to read:

15071.4.
 The procedures for the issuance of citations and penalties shall be prescribed in a citations policy adopted by the secretary, notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, upon the recommendation of the board.

SEC. 8.

 Section 15071.5 of the Food and Agricultural Code is amended to read:

15071.5.
 (a)In lieu of any other penalty provided by this chapter, the director may levy a civil penalty against a person who violates Section 15051, 15053, or 15054, in an amount not to exceed five hundred dollars ($500) for each violation. secretary may initiate a proceeding for the issuance of a civil penalty.

(b)Before a civil penalty is levied, the person charged with the violation shall receive notice of the nature of the violation.

(c)Any person against whom a civil penalty is imposed pursuant to this section may appeal to the director within 10 days of the date of receiving notification of the penalty in accordance with the following procedure:

(1)The appeal shall be in writing and signed by the appellant or his or her authorized agent, and shall state the grounds for the appeal.

(2)Any party may, at the time of filing the appeal or within 10 days thereafter, submit written evidence and a written argument to the director.

(3)The director may authorize a person to present an oral argument on his or her behalf. The person shall submit a request to present an oral argument at the same time the written evidence or written arguments are submitted.

(4)If a request to present an oral argument is granted by the director, the director shall give written notice of the time and place for the oral argument not less than 10 days prior to the date set for oral argument. This time requirement may be altered by an agreement between the director and the appellant.

(5)The director shall decide the appeal on the basis of the oral or written arguments, briefs, and evidence presented to the director.

(6)The director shall render a written decision within 45 days of the date the appeal was received or within 15 days of the date of the oral argument, whichever date is later.

(7)On an appeal pursuant to this section, the director may sustain the decision, modify the amount of the penalty imposed, or reverse the decision. A copy of the director’s decision shall be delivered or mailed to the appellant.

(8)The decision of the director may be reviewed pursuant to Section 1094.5 of the Code of Civil Procedure.

(d)Any funds recovered by the director pursuant to this section shall be deposited in a special account in the Department of Food and Agriculture Fund and, notwithstanding Section 13340 of the Government Code, are continuously appropriated to cover costs related to the enforcement of this division.

SEC. 9.

 Section 15075 of the Food and Agricultural Code is amended to read:

15075.
 (a) Any lot of commercial feed for which a hold order or notice is issued shall be held by the person having control of the feed and shall not be disturbed or moved except under the specific directions of the director secretary pending final disposition pursuant to this chapter. This restriction does not prevent the person having control of the feed from inspecting any feed so seized, nor from taking therefrom, in the presence of a person designated by the director, secretary, a reasonable sample for evidence.
(b) The movement, distribution, or sale of all or part of any lot, parcel, or package of commercial feed that has been quarantined by the director, secretary, unless the movement has the prior approval of the director, secretary, is a misdemeanor punishable by a fine of not more than five hundred dollars ($500). A second or subsequent violation of this subdivision is a misdemeanor punishable by a fine of not less than one thousand dollars ($1,000). violation of this chapter.

SEC. 10.

 Section 15081 of the Food and Agricultural Code is repealed.
15081.

The authority for the issuance of citations under this chapter is limited to violations of Section 14991, 15011, 15042, 15056, or 15075. The procedures for the issuance of citations and penalties shall be prescribed in a citations policy adopted by the director, notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, upon the recommendation of the Feed Inspection Advisory Board.

SEC. 11.

 Section 15082 is added to the Food and Agricultural Code, to read:

15082.
 (a) It is unlawful for any person to manufacture or distribute in this state any commercial feed without complying with this chapter or any regulations adopted pursuant to this chapter.
(b) It is unlawful for any person to adulterate, misbrand, or alter any commercial feed with the result that the feed would be inconsistent with the label claims.
(c) The secretary may prohibit any person found in violation of subdivision (b) or Section 15076 from obtaining a license to sell feed for three years.

SEC. 12.

 Section 15091 of the Food and Agricultural Code is amended to read:

15091.
 In addition to the remedies provided in this chapter, the department may bring an action in superior court and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this chapter or the rules and regulations promulgated under this chapter. the court may grant a temporary or permanent injunction restraining any person from violating this chapter or the regulations adopted pursuant to this chapter. Any proceeding under the provisions of this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. The department shall not, however, be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss. The court may require such acts or course of conduct as necessary to effectuate the purpose of this chapter.

SEC. 13.

 Section 15092 of the Food and Agricultural Code is amended to read:

15092.
 Nothing in this chapter requires the director secretary to report for prosecution or to institute injunction proceedings for any minor violation of this chapter whenever he believes that the public interest shall would be adequately served by a suitable written notice of warning, and compliance with such the notice.

SEC. 14.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
SECTION 1.Section 15620 of the Government Code is repealed.