SECTIONS 47025-47026 - California Statutes

FOOD AND AGRICULTURAL CODE

SECTION 47025-47026

47025. (a) In lieu of prosecution, but not precluding suspension or
revocation of certified producer's certificates or certified farmers'
market certificates, the secretary or the county commissioner may
levy a civil penalty against a person who violates this chapter or
any regulation implemented pursuant to this chapter. Actions to
administer administrative civil penalties, suspensions, or both,
against a certified producer may be made by the county agricultural
commissioner who either issued the certified producer's certificate
or issued the violation, regardless of the county or counties where
the violation occurred, or where the certified producer's certificate
originated. The secretary may take action to administer
administrative civil penalties, suspensions, or both, against a
certified producer, regardless of the county or counties where the
violation occurred, or where the certified producer's certificate
originated.
(b) Civil penalties 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 is levied 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 the
amount of the proposed 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 levied a civil
penalty, 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 penalty levied
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 penalty assessed 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, 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), 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.

47026. This article shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.