SECTIONS 56181-56196 - California Statutes

FOOD AND AGRICULTURAL CODE

SECTION 56181-56196

56181. Except as otherwise provided in Section 55610, any person
engaged in the business of buying, receiving on consignment,
soliciting for sale on commission, or negotiating the sale of farm
products from a licensee or producer for resale shall be licensed as
provided in this chapter.

56182. Any person required by Section 56181 to be licensed shall
file an application with the director for a license to transact
business before engaging in such business. The application shall be
accompanied by the application fee which is provided in Article 17
(commencing with Section 56571) of this chapter.

56182.5. (a) It is unlawful for a licensee that has changed its
legal entity to do any of the following:
(1) Continue to operate after the change.
(2) Purchase or handle any farm product from a person who had a
farm product contract with the former licensee at the time of the
change in entity without notifying that person, in writing, of the
change in entity.
(3) Use any invoice, contract, or other document associated with
the purchase, consignment, or brokerage of any farm product that
identifies the former licensee unless the new entity is conspicuously
identified on the same invoice, contract, or other document as the
entity responsible for the transaction.
(b) The new entity shall notify the director in writing of the
change in legal entity within 15 days of the change. The new legal
entity shall, before it conducts business that requires a license,
obtain a new license for the business.
(c) Notwithstanding subdivision (b), if a licensee conducts
business without a new license as a result of a change of legal
entity, it may, within 120 days of the change, upon a showing of no
substantial change in financial resources and liabilities, petition
the director to grant a new license retroactive to the first day of
the month during which the change occurred, and the director may
grant the license with retroactive effect upon a finding that doing
so would be consistent with the purposes of this chapter. Upon
granting the petition, the director shall (1) require the licensee to
pay an additional fee in an amount that will cover the expenses of
the department in the matter, but not to exceed the fee for a new
license, (2) place conditions on the license that are consistent with
the purposes of this chapter as the director deems appropriate, and
(3) require the licensee to pay an amount, for deposit in the Farm
Products Trust Fund, equal to the amount that would have been
required had the license been obtained in accordance with subdivision
(b).

56182.6. (a) If the Secretary of State suspends the corporate
status of any licensee or if the corporate status is forfeited, the
license is revoked by operation of law. The former licensee shall
provide written notice of the suspension or forfeiture to the
director, and to each person with whom it has a farm product
contract, within 15 days of the date the Secretary of State mails the
notice of suspension or forfeiture.
(b) The former licensee, may, upon a showing of no substantial
change in financial resources and liabilities, and within 90 days of
the suspension or forfeiture of corporate status, petition the
director for an order to reissue its license formerly held under this
chapter. If the corporate status has been reinstated by the
Secretary of State, the director may reissue the license if the
director finds that doing so would be consistent with the purposes of
this chapter. As a condition to reissuing the license, the director
may (1) require the former licensee to undertake such financial
guarantees, including the filing and maintaining of bonds, as the
director deems necessary to protect the interests of contracting
parties and (2) impose other conditions on the license that are
consistent with the purposes of this chapter as the director deems
appropriate.

56183. The application shall in each case state all of the
following:
(a) Every class of farm products which the applicant proposes to
handle.
(b) The full name of the person that is applying for such license.
If the applicant is a firm, exchange, association, or corporation,
the full name of each member of the firm, or the names of the
officers of the exchange, association, or corporation shall be given
in the application.
(c) The principal business address of the applicant in this state
and elsewhere.
(d) The name of each person authorized to receive and accept
service of summons and legal notices of all kinds for the applicant.

56183.5. (a) An initial application, at a minimum, shall include
the following:
(1) A release authorizing the department, during consideration of
the application and for the duration of licensure, to have access to
and obtain financial information from both of the following:
(A) The applicant's files with credit reporting agencies.
(B) The applicant's files with banks, savings and loan
associations, or any other financial institutions with whom the
applicant has done business in the past or with whom the applicant
intends to do business during the year of licensure.
(2) A notice signed by the applicant that the department may
obtain criminal record information during the course of a licensing
investigation or upon presentation with a reasonable basis to believe
the licensee has been convicted of a crime. An applicant whose
application is incomplete shall be given written notice that a
failure to complete it within 60 calendar days shall result in denial
of the application.
(b) The documents and information procured pursuant to this
section shall be considered the records of a consumer and shall not
be construed to be a public record. The documents and information
shall remain confidential, except in actions brought by the
department to enforce this division, or as a result of the issuance
of a subpoena in accordance with Section 1985.4 of the Code of Civil
Procedure. The unauthorized release of the documents received from
the Department of Justice or the information contained in those
documents is a misdemeanor.
(c) The department shall adopt regulations that specify the proper
and necessary information and supporting documentation the
department requires for an application to be considered complete.

56184. In addition to the general requirements which are applicable
to all applications as set forth in this article, the following
requirements shall apply to each applicant who engages in the
designated activity:
(a) Each applicant who intends to engage in business as a
commission merchant shall include a complete schedule of commissions,
together with an itemized listing of all charges for all services.
Such designated commissions and charges shall not be changed or
varied except by written contract between the parties. If changed by
a written contract, such charges shall be clearly set forth in detail
in such written contract. Any services which are rendered for which
charges are made, if not listed in the schedule on the application,
shall be rendered on a strictly cost basis.
(b) Each application for an agent's license shall include such
information as the director may consider proper or necessary, and
shall include the name and address of applicant, and the name and
address of the licensee that is represented or sought to be
represented by the agent, and the written endorsement or nomination
of such licensee.

56185. The department shall accept or deny an application within 90
calendar days of receipt of a completed application. The department
may deny, condition, suspend, or revoke a license issued pursuant to
this chapter upon any of the following grounds and in the manner
provided in this chapter:
(a) Upon one flagrant violation, as determined by the department,
or upon repeated violations, by the holder or applicant, of any one
or combination of the sections of this division or under any one or
combination of the regulations promulgated by the department under
the authority of this division.
(b) Upon one flagrant violation, as determined by the department,
or upon repeated violations, by a holder's or applicant's agent,
employee, or contractor, or of an organization or entity in which the
holder or applicant holds a significant financial interest, of any
one or combination of the sections of this division or any one or
combination of the regulations promulgated under this division under
circumstances where the holder or applicant knew or should have known
and failed to take reasonable measures to prevent the violation or
failed to report the violation to the department upon learning of the
violation.
(c) Upon the conviction of the holder or applicant of a crime that
includes as one of its elements the financial victimization of
another person. However, if the licensee was licensed prior to
January 1, 1998, and the department knew of, or was on notice of, the
conviction, that conviction may not form the basis of a disciplinary
action under this subdivision.
(d) On the grounds of a false or misleading statement by a holder
or applicant that the holder or applicant knew or should have known
to be false or misleading, directed to any official of any government
concerning the scope of any indicia of authority, including, but not
limited to, the holder's or applicant's license associated with the
holder's or applicant's business, the standards under which the
indicia was authorized, the contents of the application for
licensure, or the holder's or applicant's relationship to the
indicia.
(e) On the grounds that a holder or applicant, or a holder's or
applicant's agency, employee, or contractor, or an organization or
entity in which a holder or applicant holds a significant financial
interest, deceived a grower in any material matter. Deception, for
purposes of this subdivision, does not require scienter, but requires
active misrepresentation where the actor knew the representation to
be false or where the actor should have known, with due
consideration, that he or she did not know whether or not the
representation was true or false.

56185.5. (a) The Legislature finds there to be a substantial nexus
between the conduct specified in Section 56185 and an applicant's or
holder's fitness for licensure.
(b) The department shall not dismiss an action where a violation,
however minor, has been established. The department shall not dismiss
an action because the applicant or holder establishes factors in
mitigation.
(c) However, the department may impose discipline other than
denial or revocation of the license. As an alternative to revocation
of a license, the department may stay a revocation subject to terms
for a period of probation. As an alternative to denial the department
may issue a license subject to conditions. Terms of probation or
terms of conditional licensure may include, but are not limited to, a
requirement of restitution, payment for extra audits, immediate
revocation on a new violation, or any other terms that respond to the
particular violations or circumstances found.
(d) Once a finding of a violation has been made, the department
may consider the following factors in assessing the appropriate level
of discipline:
(1) The relative isolation or infrequency of the conduct.
(2) Whether the conduct was a part of a pattern or practice.
(3) Whether the actor had been warned before.
(4) Whether the actor considered the consequences of the conduct.
(5) Whether the actor reasonably relied on others.
(6) The severity of the consequences.
(7) The mens rea of the actor.
(8) In the case of a criminal conviction, evidence of
rehabilitation.
(9) The total licensing history.
(e) The following factors shall not be considered in assessing the
appropriate level of discipline:
(1) The social or economic contributions of the applicant or
holder.
(2) General testimonials as to good character and worthiness to be
licensed.
(3) Economic hardship on the licensee.
(4) "Mercy of the court" pleas in connection with criminal
convictions, pattern or practice violations, or deception.
(5) In the case of a felony criminal conviction, the department
shall not consider rehabilitation unless the convicted person has a
valid certificate of rehabilitation.

56185.75. (a) If an application for a license indicates, or the
department determines during the application review process, that the
applicant was issued a license that was revoked within the preceding
two years, the department shall cease any further review of the
application until two years have elapsed from the date of the
revocation. The cessation of review shall not constitute a denial of
the application for the purposes of this chapter, or any other
provision of law.
(b) If an application for a license indicates, or the department
determines during the application review process, that the applicant
had previously applied for a license and the application was denied
within the last year, the department shall cease further review of
the application until 30 days have elapsed from the date of the
notification of the denial or from the effective date of the decision
and order of the department upholding a denial. The cessation of
review shall not constitute a denial of the new applicant for
purposes of this chapter, or any other provision of law.
(c) Nothing in subdivision (a) or (b) prohibits the department
from taking into account the basis for denial or revocation in
considering any new application subsequent to the elapse of the
applicable period of prohibition.

56186. The department shall require the applicant to make a showing
of character, responsibility, and good faith in seeking to carry on
the business that is stated in the application, and may make
investigations, hold hearings, and make determinations respecting
such matters.

56186.5. A license is forfeited by operation of law prior to its
expiration date when one of the following occurs:
(a) The holder surrenders the license to the department.
(b) The holder dies.
(c) The partnership holder dissolves.
(d) The holder of a significant financial interest in a
corporation transfers his or her interest to another person or
entity, regardless of relationship.
(e) The holder files for bankruptcy under provisions other than
those permitting and governing reorganization under bankruptcy.

56186.75. (a) The withdrawal of an application for a license after
it has been filed with the department does not deprive the department
of its authority to institute or continue a proceeding against the
applicant or to enter an order denying the license, unless the
department consents in writing to such a withdrawal.
(b) The expiration or forfeiture by operation of law of a license,
or its forfeiture or cancellation by order of the department or by
order of a court of law, or its surrender without the written consent
of the department, does not deprive the department of its authority
to institute or continue a disciplinary proceeding against the holder
upon any ground provided by law or to enter an order revoking the
license or otherwise taking disciplinary action against the holder.
(c) Any action brought by the department against an applicant or
holder does not abate by reason of the sale or other transfer of
ownership of the business that is a party to the action, except with
the written consent of the department.
(d) Nothing in this division or in any other provision of this
code deprives the department of the authority to settle or adjudicate
a disposition of a case other than by revocation or denial. The
department or the department's designee may compromise with the
applicant or holder in a written stipulation and order. The
department may, following a hearing, order probation on terms and
conditions as determined by the department. The authority conferred
by this subdivision shall include, but not be limited to, the
authority to order payment of amounts determined owing, the authority
to dismiss an action on the department's own initiative, the
authority to order administrative penalties, the authority to order a
respondent to pay for heightened audit scrutiny, the authority to
suspend a license for a period of years, or any combination of
remedies other than final revocation or denial of a license.

56189. Any person who is adjudicated liable for payment of a claim
for farm products that arose out of the conduct of a business
licensed or requiring a license under this chapter or Chapter 6
(commencing with Section 55401), and who has not made full settlement
with all producer-creditors, shall not be licensed by the director
as a principal for four years from the date of the adjudication.

56189.2. In addition to the other requirements of this chapter,
each application for a license, except for a cash buyer's license,
shall include an affidavit in which the applicant affirms that he or
she is current in making all payments required under undisputed
contract agreements, and that he or she will do all of the following:
(a) Abide by all provisions of this chapter and Chapter 6
(commencing with Section 55401).
(b) Will prepare and retain financial records adequate to document
all transactions with suppliers.
(c) Will prepare and retain current financial information,
including, but not limited to, profit-and-loss statements and a
balance sheet that presents fairly the financial condition as of the
applicant's most recent yearend.
The affidavit shall be on a form prescribed by the secretary and
shall be submitted under penalty of perjury.

56189.5. (a) Licensees or applicants for a license shall be
required to furnish and maintain a surety bond in a form and amount
satisfactory to the director, if within the preceding four years the
director determines that they have done any of the following:
(1) Engaged in conduct which demonstrates a lack of financial
responsibility including, but not limited to, delinquent accounts
payable, judgments of liability, insolvency, or bankruptcy.
(2) Failed to assure future financial responsibility unless a
surety bond is posted.
(3) Otherwise violated this chapter which resulted in license
revocation.
(b) The bond shall not be less than ten thousand dollars ($10,000)
or 20 percent of the annual dollar volume of business based on farm
product value returned to the grower, whichever is greater, as
assurance that the licensee's or applicant's business will be
conducted in accordance with this chapter and that the licensee or
applicant will pay all amounts due farm products creditors.
(c) The director, based on changes in the nature and volume of
business conducted by the licensee, may require an increase or
authorize a reduction in the amount of the bond, but in no case shall
the bond be reduced below ten thousand dollars ($10,000). A licensee
who is notified by the director to provide a bond in an increased
amount shall do so within a reasonable time as specified by the
director. If the licensee fails to do so, the director may, after
notice and opportunity for hearing, suspend or revoke the license of
any licensee.

56190. (a) The department shall notify the applicant or holder in
writing of the department's decision to bring charges to deny,
suspend, or revoke a license.
(1) The notice shall inform the applicant or holder of the charges
against him or her, of the department's proposed disciplinary
action, and of his or her rights under this chapter.
(2) The notice shall be served by certified mail to the applicant
or holder's last known address.
(3) Except where the license has been temporarily suspended, the
notice shall be mailed to the applicant or holder at least 30
calendar days in advance of the impending action.
(b) The department's proposed action shall become final unless the
applicant or holder appeals prior to the end of the notice period by
submitting a notice of defense to the department in a form specified
by the department. The notice shall be transmitted to the department
in a form that is written, including, but not limited to, by
facsimile.
(c) If the department receives a timely notice of defense, the
department shall schedule a hearing within 90 calendar days of
receipt of the notice of defense, except where the license has been
temporarily suspended. Pending the final decision at the conclusion
of the hearing, a revocation shall be stayed. A temporary suspension
shall not be stayed.
(d) Proceedings for the revocation or denial of a license issued
under this chapter shall be conducted by hearing officers appointed
for that purpose by the department. The department may elect to use
hearing officers employed by the Office of Administrative Hearings.
The hearing officers shall be independent of the Market Enforcement
Bureau, but may be employees of the department. The hearing officers
shall be qualified administrative law judges.
(e) Proceedings shall be conducted generally in accordance with
the provisions of Chapters 4.5 (commencing with Section 11400) and 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code. However, proceedings need not conform strictly
to any "rules of court" adopted as regulations by the Office of
Administrative Hearings to guide the conduct of hearings conducted by
the Office of Administrative Hearings. The department has all power
granted by Chapters 4.5 (commencing with Section 11400) and 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(1) The sole parties to the proceedings shall be the department
and the applicant or holder. Third party intervention shall not be
permitted. The disputes, claims, and interests of third parties shall
not be within the jurisdiction of the proceedings. However, nothing
in this paragraph prohibits any interested party from submitting an
amicus brief if the hearing officer requests written briefs.
(2) The validity of a department regulation or order shall not be
within jurisdiction of the proceedings.
(3) Law and motion matters shall be handled by the assigned
hearing officer.
(4) The hearing officer may not enter into settlement discussions.
(5) The hearing officer may not issue sanctions.
(f) In all proceedings conducted in accordance with this section,
the standard of proof to be applied is the preponderance of the
evidence. When the department seeks to revoke an existing license,
the department shall have the burden of proof and the burden of
producing evidence.
(g) Decisions following a hearing shall be adopted by the
department or the department's designee and become final unless
remanded for reconsideration or alternated in accordance with
Chapters 4.5 (commencing with Section 11400) and 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code.
(h) The department shall maintain a library of decisions that
shall be made available to any person, including the parties to
administrative actions during discovery.

56193. Each licensee shall post his license or a copy of it in his
office or salesroom in plain view of the public.

56194. The director shall issue to any individual or member of a
partnership, a card which specifies that he or his firm is licensed.
The licensee shall show such card upon the request of any interested
person.

56195. The director may also issue to each agent a separate card
for each principal which the agent represents, which shall bear the
signature of the agent. Any agent shall show the card upon the
request of any interested person. Any agent that displays a void or
expired license card is guilty of a misdemeanor, punishable as
provided in Section 56631 of this chapter.

56196. All indicia of the possession of a license are at all times
the property of this state. Each licensee is entitled to the
possession of them only for the duration of the license.