Code Section Group

Food and Agricultural Code - FAC

DIVISION 17. FRUIT, NUT, AND VEGETABLE STANDARDS [42501 - 49014]

  ( Division 17 enacted by Stats. 1967, Ch. 15. )

CHAPTER 10.5. Direct Marketing [47000 - 47062]

  ( Chapter 10.5 added by Stats. 1996, Ch. 606, Sec. 1.5. )

ARTICLE 4. Enforcement [47025- 47025.]
  ( Heading of Article 4 amended by Stats. 2013, Ch. 409, Sec. 3. )

47025.
  

(a) In lieu of prosecution, but not precluding suspension or revocation of certified producer’s certificates or certified farmers’ market certificates pursuant to any other authority, the secretary or the county agricultural commissioner may impose an administrative civil penalty, suspension of certification, or both, on a person who violates this chapter or any regulation implemented pursuant to this chapter.

(b) A civil penalty pursuant to this section shall be levied in proportion to the violation, measured as either “serious,” “moderate,” or “minor.”

(1) “Serious” violations are repeat or intentional violations, punishable by a civil penalty of not less than four hundred one dollars ($401) and up to a maximum of one thousand dollars ($1,000) per violation.

(2) “Moderate” violations are repeat violations or violations that are not intentional, punishable by a civil penalty of not less than one hundred fifty-one dollars ($151), but not more than four hundred dollars ($400) per violation.

(3) “Minor” violations are violations that are procedural in nature, punishable by a civil penalty of not less than fifty dollars ($50), but not more than one hundred fifty dollars ($150) per violation.

(c) Before a civil penalty or suspension is imposed pursuant to this section, the person charged with the violation shall receive written notice of the proposed action including the nature of the violation and, if applicable, the amount of the proposed civil 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.

(d) If the person, upon whom the commissioner imposed a civil penalty or suspension, 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, state the grounds for the appeal, and include 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 therefor. 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 civil penalty levied, if applicable, 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 civil penalty or suspension imposed 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 or provides for the imposition of a suspension, 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) In addition to the civil penalties prescribed in subdivision (b), or a suspension imposed pursuant to this section, the appellant may be required to cover the cost of the administrative hearing unless the decision of the secretary or county agricultural commissioner is overturned.

(g) “Person,” as used in this section, means any applicant for a certified producers’ certificate or certified farmers’ market certificate, producer of agricultural products, certified producer, family member or employees of a certified producer, certified farmers’ market manager, or certified farmers’ market operator engaged or involved in the direct marketing of agricultural products at a certified farmers’ market pursuant to this chapter.

(Amended by Stats. 2018, Ch. 223, Sec. 1. (AB 3260) Effective January 1, 2019.)

FACFood and Agricultural Code - FAC4