Code Section Group

Food and Agricultural Code - FAC

DIVISION 7. AGRICULTURAL CHEMICALS, LIVESTOCK REMEDIES, AND COMMERCIAL FEEDS [12500 - 15340]

  ( Division 7 enacted by Stats. 1967, Ch. 15. )

CHAPTER 1.5. Produce Carrying Pesticide Residue [12501 - 12674]

  ( Heading of Chapter 1.5 renumbered from Chapter 1 by Stats. 1994, Ch. 545, Sec. 1. )

ARTICLE 6. Abatement as Public Nuisance [12641 - 12649]
  ( Article 6 enacted by Stats. 1967, Ch. 15. )

12641.
  

As used in this article, “nuisance” means the public nuisance which is specified in Section 12642.

(Enacted by Stats. 1967, Ch. 15.)

12642.
  

Any lot of produce which is found to carry pesticide residue in excess of any maximum which is provided in this chapter, or in excess of a permissible tolerance, together with its containers, is a public nuisance, and if not disposed of pursuant to Article 5 (commencing with Section 12601) of this chapter, is subject to disposal on complaint of the director to a court of competent jurisdiction.

(Amended by Stats. 1983, Ch. 717, Sec. 11.)

12643.
  

The district attorney of the county in which the nuisance is found, at the request of the director, shall maintain, in the name of the people of the State of California, a civil action to abate and prevent the nuisance.

(Amended by Stats. 1967, Ch. 26.)

12644.
  

Upon judgment and by order of the court, the nuisance shall be condemned and destroyed in the manner directed by the court, or denatured or otherwise processed, or released upon such conditions as the court in its discretion may impose to insure that the nuisance shall be abated.

(Enacted by Stats. 1967, Ch. 15.)

12645.
  

If the owner fails to comply with the order of the court within the time which is specified in the order, the court may order the disposal or sale of the produce or containers which are a nuisance, under the terms and conditions as the court may prescribe, by the director, or by the sheriff or marshal.

(Amended by Stats. 1996, Ch. 872, Sec. 29. Effective January 1, 1997.)

12646.
  

If the court orders the sale of any of the produce or containers which can be salvaged, the costs of disposal shall be deducted from the proceeds of sale and the balance paid into court for the owner.

(Enacted by Stats. 1967, Ch. 15.)

12647.
  

A proceeding pursuant to this article where the value of the property seized amounts to twenty-five thousand dollars ($25,000) or less is a limited civil case.

(Amended by Stats. 1998, Ch. 931, Sec. 162. Effective September 28, 1998.)

12648.
  

(a) Notwithstanding any other provision of this code, a site within this state that has been treated with, or a plant, crop, or commodity, whether grown in this state or elsewhere, that has been treated with, or grown on a site treated with, a pesticide that is not registered for use on that plant, crop, commodity, or site is a public nuisance and may be seized by order of the director.

(b) The unlawful treatment described in subdivision (a) creates, in favor of the director, rebuttable presumptions affecting the burden of producing evidence pursuant to Section 604 of the Evidence Code as follows:

(1) That the treated plant, crop, commodity, or site, or any plant, crop, or commodity grown on the treated site, presents a hazard to human health or the environment.

(2) That the pesticide was used to gain an unfair business advantage for the owner or person in possession or control of the plant, crop, commodity, or site.

(c) The director shall provide notice to the owner or person in possession or control of the plant, crop, commodity, or site prior to seizure, unless the director has reason to believe that prior notice would result in the loss of control by the director of that plant, crop, commodity, or site, in which case notice shall be given as soon as practical, but in any event within five days of the seizure. The notice shall specify the grounds for the seizure and provide that the owner or person in possession or control, within 15 days of receipt of the notice, may request a hearing before the director to contest the seizure or rebut the presumptions specified in subdivision (b). The hearing shall be held not later than five days from the date the request of the owner or person is received by the director. The director shall render a written decision within five days of the hearing or within five days of the expiration of the time to request a hearing if no hearing was requested. The decision shall either release the plant, crop, commodity, or site from seizure or make any of the following orders:

(1) Destruction of the plant, crop, or commodity.

(2) Prohibition of harvest or sale of the plant, crop, or commodity grown on the site.

(3) Prohibition of the use or planting of the site, which may be for the period of any plant back time specified for the pesticide used on the site.

(4) Any other appropriate action or measure.

(d) Review of the decision of the director may be sought by the owner or person in possession or control of the plant, crop, commodity, or site pursuant to Section 1094.5 of the Code of Civil Procedure.

(Amended by Stats. 1997, Ch. 17, Sec. 42. Effective January 1, 1998.)

12648.5.
  

(a) It is unlawful for the owner of a plant, crop, or commodity to knowingly treat or apply to that plant, crop, or commodity, or cause that plant, crop, or commodity to be treated or applied, with a pesticide that was stolen or otherwise acquired by illegal means.

(b) The owner of a crop, who is found by a court to have violated this section, in addition to any other penalties imposed by a court, shall be subject to a fine of ten thousand dollars ($10,000) plus an amount equal to one-half the value of the crop on which the illegally obtained pesticide was applied.

(c) For purposes of this section, “one-half the value of the crop” means one-half the market value of the crop that was actually treated with the illegally obtained pesticide as determined by the actual sale of the crop or, if the crop is not actually sold, as determined by the director based on an average of the typical market value for such a crop sold in the normal channels of trade in the year in which the crop was produced and in the preceding two years.

(d) Moneys received as a result of fines and penalties imposed pursuant to this section shall be divided and distributed as follows:

(1) Fifty percent to the county in which the case was brought to court or in which a court-approved settlement of the matter was negotiated.

(2) Twenty-five percent to the office of the county agricultural commissioner.

(3) Twenty-five percent to the department.

(Amended by Stats. 1996, Ch. 361, Sec. 24. Effective January 1, 1997.)

12648.6.
  

Any person who is licensed pursuant to this code and who is found by a court to have knowingly sold, applied, or provided pesticides that were stolen or otherwise obtained illegally, in addition to any other penalty that may be imposed, shall have his or her license or licenses suspended for a minimum of 18 months.

(Amended by Stats. 1996, Ch. 361, Sec. 25. Effective January 1, 1997.)

12649.
  

The director may bring an action to enjoin the violation or the threatened violation of any order made pursuant to Section 12648 in the superior court in the county in which the order was issued or the violation has occurred or is threatening to occur. The court may enjoin the violation or threatened violation upon this showing and without evidence of irreparable injury. The court may compel specific performance of any acts or course of conduct necessary to implement any order made pursuant to Section 12648.

(Added by Stats. 1988, Ch. 908, Sec. 3.)

FACFood and Agricultural Code - FAC6