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

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Date Published: 09/24/2018 09:00 PM
SB668:v93#DOCUMENT

Senate Bill No. 668
CHAPTER 683

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, and making an appropriation therefor.

[ Approved by Governor  September 22, 2018. Filed with Secretary of State  September 22, 2018. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 668, McGuire. 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 that 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 funds are continuously appropriated to cover costs related to the enforcement of provisions relating to agricultural chemicals, livestock remedies, and commercial feed.
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 and provide that those funds are continuously appropriated to the department to cover costs related to the 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. By establishing a new penalty, the revenue from which is deposited into a continuously appropriated fund, the bill would make an appropriation.
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 that 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 relating to commercial feed.
This bill would recast certain 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.
Vote: 2/3   Appropriation: YES   Fiscal Committee: YES   Local Program: YES  

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 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 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 secretary to bear or contain a poisonous, deleterious, or nonnutritive substance in amounts that are specified as being unsafe by the secretary by regulation is 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 a violation of this chapter.

SEC. 4.

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

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 that is adopted pursuant to this chapter.
(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. Pursuant to Section 6103 of the Government Code, the clerk of the superior court shall not charge a fee for the performance of any official service required in connection with the entry of judgment pursuant to this section.
(f)   Any funds recovered by the secretary 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 the department to cover costs related to the 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.
 In lieu of any other penalty provided by this chapter, the secretary may initiate a proceeding for the issuance of a civil penalty.

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 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 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 secretary, unless the movement has the prior approval of the secretary, is a violation of this chapter.

SEC. 10.

 Section 15081 of the Food and Agricultural Code is repealed.

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 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 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 secretary to report for prosecution or to institute injunction proceedings for any minor violation of this chapter whenever the public interest would be adequately served by a suitable written notice of warning, and compliance with 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.