Code Section Group

Health and Safety Code - HSC

DIVISION 104. ENVIRONMENTAL HEALTH [106500 - 119405]

  ( Division 104 added by Stats. 1995, Ch. 415, Sec. 6. )

PART 5. SHERMAN FOOD, DRUG, AND COSMETIC LAWS [109875 - 111915]

  ( Part 5 added by Stats. 1995, Ch. 415, Sec. 6. )

CHAPTER 8. Penalties and Remedies [111825 - 111915]

  ( Chapter 8 added by Stats. 1995, Ch. 415, Sec. 6. )

ARTICLE 2. Proceedings [111840 - 111855]
  ( Article 2 added by Stats. 1995, Ch. 415, Sec. 6. )

111840.
  

The Attorney General, any district attorney, or any city attorney to whom the department reports any violation of this part shall begin appropriate proceedings in the proper court.

(Added by Stats. 1995, Ch. 415, Sec. 6. Effective January 1, 1996.)

111845.
  

The department is not required to institute proceedings under this part for minor violations of this part, if the department believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

(Added by Stats. 1995, Ch. 415, Sec. 6. Effective January 1, 1996.)

111850.
  

When the state asserts a violation of this part, the state need not negative any exemption or exception from the requirements of this part in any pleading or in any trial, hearing, or other proceeding. The burden of proof with respect to any exemption or exception rests upon the person claiming its benefit.

(Added by Stats. 1995, Ch. 415, Sec. 6. Effective January 1, 1996.)

111855.
  

(a) If any person violates any provision of this part, or any regulation adopted pursuant to this part, the department may assess a civil penalty against that person as provided by this section.

(b) The penalty may be in an amount not to exceed one thousand dollars ($1,000) per day unless the penalty is for a violation of Section 111825, in which case the penalty may be in an amount not to exceed ten thousand dollars ($10,000) per day. Each day a violation continues shall be considered a separate violation.

(c) If, after examination of a possible violation and the facts surrounding that possible violation, the department concludes that a violation has occurred, the department may issue a complaint to the person charged with the violation. The complaint shall allege the acts or failures to act that constitute the basis for the violation and the amount of the penalty. The complaint shall be served by personal service or by certified mail and shall inform the person so served of the right to a hearing.

(d) Any person served with a complaint pursuant to subdivision (c) of this section may, within 20 days after service of the complaint, request a hearing by filing with the department a notice of defense. A notice of defense is deemed to have been filed within the 20-day period if it is postmarked within the 20-day period. If a hearing is requested by the person, it shall be conducted within 90 days after the receipt by the department of the notice of defense. If no notice of defense is filed within 20 days after service of the complaint, the department shall issue an order setting the penalty as proposed in the complaint unless the department and the person have entered into a settlement agreement, in which case the department shall issue an order setting the penalty in the amount specified in the settlement agreement. When the person has not filed a notice of defense or where the department and the person have entered into a settlement agreement, the order shall not be subject to review by any court or agency.

(e) Any hearing required under this section shall be conducted pursuant to the procedures specified in Section 100171, except to the extent they are inconsistent with the specific requirements of this section.

(f) Orders setting civil penalties under this section shall become effective and final upon issuance thereof, and payment shall be made within 30 days of issuance. A copy of the order shall be served by personal service or by certified mail upon the person served with the complaint.

(g) Within 30 days after service of a copy of a decision issued by the director after a hearing, any person so served may file with the superior court a petition for writ of mandate for review of the decision. Any person who fails to file the petition within this 30-day period may not challenge the reasonableness or validity of the decision or order of the director in any judicial proceeding brought to enforce the decision or order or for other remedies. Section 1094.5 of the Code of Civil Procedure shall govern any proceedings conducted pursuant to this subdivision. In all proceedings pursuant to this subdivision, the court shall uphold the decision of the director if the decision is based upon substantial evidence in the whole record. The filing of a petition for writ of mandate shall not stay any corrective action required pursuant to this part or the accrual of any penalties assessed pursuant to this section. This subdivision does not prohibit the court from granting any appropriate relief within its jurisdiction.

(h) The remedies under this section are in addition to, and do not supersede, or limit, any and all other remedies, civil or criminal.

(Amended by Stats. 2005, Ch. 401, Sec. 6. Effective January 1, 2006.)

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