Chapter 2. General Provisions of California Food And Agricultural Code >> Division 6. >> Chapter 2.

The purposes of this division and Chapter 1 (commencing with Section 12501), Chapter 2 (commencing with Section 12751), Chapter 3 (commencing with Section 14001), and Chapter 3.5 (commencing with Section 14101) of Division 7 are as follows:
  (a) To provide for the proper, safe, and efficient use of pesticides essential for production of food and fiber and for protection of the public health and safety.
  (b) To protect the environment from environmentally harmful pesticides by prohibiting, regulating, or ensuring proper stewardship of those pesticides.
  (c) To assure the agricultural and pest control workers of safe working conditions where pesticides are present.
  (d) To permit agricultural pest control by competent and responsible licensees and permittees under strict control of the director and commissioners.
  (e) To assure consumers and users that pesticides are properly labeled and are appropriate for the use designated by the label and that state or local governmental dissemination of information on pesticidal uses of any registered pesticide product is consistent with the uses for which the product is registered.
  (f) To encourage the development and implementation of pest management systems, stressing application of biological and cultural pest control techniques with selective pesticides when necessary to achieve acceptable levels of control with the least possible harm to nontarget organisms and the environment.

(a) This division and Division 7 (commencing with Section 12501) are of statewide concern and occupy the whole field of regulation regarding the registration, sale, transportation, or use of pesticides to the exclusion of all local regulation. Except as otherwise specifically provided in this code, no ordinance or regulation of local government, including, but not limited to, an action by a local governmental agency or department, a county board of supervisors or a city council, or a local regulation adopted by the use of an initiative measure, may prohibit or in any way attempt to regulate any matter relating to the registration, sale, transportation, or use of pesticides, and any of these ordinances, laws, or regulations are void and of no force or effect.
  (b) If the director determines that an ordinance or regulation, on its face or in its application, is preempted by subdivision (a), the director shall notify the promulgating entity that it is preempted by state law. If the entity does not repeal its ordinance or regulation, the director shall maintain an action for declaratory relief to have the ordinance or regulation declared void and of no force or effect, and shall also bring an action to enjoin enforcement of the ordinance or regulation.
  (c) Neither this division nor Division 7 (commencing with Section 12501) is a limitation on the authority of a state agency or department to enforce or administer any law that the agency or department is authorized or required to enforce or administer.
  (d) At the request of any state agency disseminating information on the pesticidal uses of any product, the director shall consult with, and provide technical assistance to, that agency to ensure that the dissemination is based on valid scientific information and consistent with state law.

The director, and the commissioner of each county under the direction and supervision of the director, shall enforce this division and the regulations which are issued pursuant to it.

The director shall adopt regulations which govern the conduct of the business of pest control.

(a) The director may adopt regulations to establish the minimum requirements of education, continuing education, training, experience, and examination for applicants for any license or certificate, or renewal of any license or certificate, issued by the director pursuant to this division or Division 7 (commencing with Section 12500). A regulation adopted or amended pursuant to this section pertaining to continuing education requirements shall establish minimum course requirements related to pesticides and pest management. The director shall approve courses that include plant health, organic and sustainable practices, water and air monitoring and residue mitigation, maximum residue levels, quarantine practices, and the on-farm storage of fumigants, all in the context of pesticides and pest management. The director shall not renew a license or certificate if the person who was issued the license or certificate did not complete the required continuing education during the period of validity of the license or certificate, and the person must take and pass the examination to be again issued such a license or certificate. The director shall act within 15 business days of receipt to approve or reject continuing education courses submitted to meet the requirements of this division or Division 7 (commencing with Section 12500).
  (b) The director shall establish, by regulation, fees for the department's licensing and certification programs as established pursuant to this division or Division 7 (commencing with Section 12500). These programs include, but are not limited to:
  (1) License and certificate examination, application, and renewal.
  (2) Approval of continuing education courses and continuing education course providers.
  (3) Changes related to any license or certificate, including, but not limited to, name or address changes, license or certificate replacement costs, duplicate copy of a license or certificate, and changes in qualified person, bond, insurance, or registered officers.
  (4) Penalties for late payment of licensing and certification fees.
  (c) The fees established pursuant to this section may include administrative costs, including overhead costs.
  (d) The regulations shall provide that the examination fee may be charged to applicants who request the director to reschedule an examination due to the applicant's failure to obtain a passing score or failure to appear for the scheduled examination, and for scheduling an examination to amend a license.
  (e) The fees established pursuant to this section shall be set so that the total revenue collected each fiscal year is sufficient to support the expenditure levels for these programs contained in the annual Budget Act. If the director determines that the revenue collected during the preceding year was greater than, or less than, the expenditure levels for these programs set forth in the Budget Act, the director may further adjust the current fees to compensate for the overcollection or undercollection.
  (f) Funds collected pursuant to this section shall be deposited in the Department of Pesticide Regulation Fund, and shall be available for expenditure by the department, upon appropriation, for the purposes of carrying out the programs established pursuant to this division or Division 7 (commencing with Section 12500).
  (g) The regulations adopted pursuant to this section, or any amendment thereto, shall be adopted by the director in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The adoption of these regulations shall be considered by the Office of Administrative Law as an emergency, and necessary for the immediate preservation of the public peace, health, safety, and general welfare. Notwithstanding any other provision of law, the emergency regulations adopted pursuant to this section shall remain in effect until amended by the director.

The commissioner of any county may adopt regulations applicable in his or her county which are supplemental to those of the director which govern the conduct of pest control operations and records and reports of those operations. The regulations may include provisions pertaining to any matter related to the accomplishment of the purposes of Section 11737. The provisions of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code shall be followed insofar as practicable in the adoption of the regulations by the commissioner. The regulations shall be filed with the director who shall compile them. Each regulation of the commissioner shall be approved by the director before it becomes operative. The director, in his or her review of the commissioner's regulations, shall consider, but not be limited to considering, the necessity, authority, clarity, and consistency of the regulations, as these terms are defined in Section 11349 of the Government Code.

The county agricultural commissioner may apply Section 11503 to the agricultural use of any pesticide for agricultural production within one-quarter mile of a school with respect to the timing, notification, and method of application. Any regulations adopted pursuant to this section shall become operative unless specifically disapproved in writing by the director within 30 calendar days of their submission by the commissioner.

Prior to the adoption of regulations by a commissioner, a notice of intention to adopt regulations shall be published in the county, pursuant to Section 6061 of the Government Code, at least 10 days in advance of the time the regulations are to be adopted, amended, or repealed.

The notice of intention which is referred to in Section 11504 shall contain a statement of the time, place, and nature of proceedings for the adoption of the regulations, and either the express terms or an informative summary of the proposed regulations.

At least 10 days prior to the date set for the adoption, amendment, or repeal of the regulations, the commissioner shall mail a copy of the notice of intention to every person who has registered with the commissioner in the manner required by Article 2 (commencing with Section 11731), Chapter 4 of this division, and to any other interested person that has filed with the commissioner a request to receive a notice of such proceedings.

On the date and at the time and place designated in the notice of intention, the commissioner shall afford any interested person or his duly authorized representative, or both, the opportunity to present statements, arguments, or contentions in writing, with or without opportunity to present them orally.

The commissioner shall consider all relevant matter which is presented to him before he adopts any regulation.

In any hearing which is conducted pursuant to Section 11507, the commissioner or his duly authorized representative shall have authority to administer oaths or affirmations, and may continue or postpone such hearing, from time to time, to such time and at such place as he shall determine.

The regulations of the commissioner are subject to review and approval by the director as to reasonableness, and if approved they shall be filed with the director. The regulations shall become effective 30 days after they are approved by the director unless they are designated as emergency regulations.

If, in the opinion of the commissioner, the public health, welfare, or safety requires that any regulation take effect immediately he shall designate it as an emergency regulation and specify in writing the facts which constitute the necessity. An emergency regulation shall become effective on the date it is approved by the director.

Except as provided in Section 11512.5, the proceedings for all hearings conducted by the director pursuant to this division shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The director shall have all of the powers which are granted in that chapter.

(a) The commissioner may refuse, suspend, or revoke a county registration or permit pursuant to Section 11735, 11924, 12035, or 14008. Before that action is taken, the party whose registration or permit request is to be refused, suspended, or revoked, the registered party, or the permittee shall be given a written notice of the proposed action, including the basis for the action, and shall have the right to request a hearing before the commissioner within 20 days after receiving notice of the proposed action. A notice of the proposed action that is sent by certified mail to the last known address of the person against whom the action is proposed shall be considered received even if delivery is refused or 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 present any evidence or argument on his or her own behalf. If a hearing is not requested in a timely manner, the commissioner may take the action proposed without a hearing. If the party whose registration or permit is refused, suspended, or revoked requested and appeared at a hearing, he or she may appeal to the director within 10 days of mailing or personal service of the commissioner's decision. The following procedure shall apply to the appeal:
  (1) The appeal need not be formal, but it shall be in writing and signed by the appellant or his or her authorized agent and shall state the grounds for the appeal. The commissioner's decision shall be stayed pending the director's decision, except as provided in subdivision (b). The party whose registration or permit has been refused shall remain unregistered or unpermitted pending the outcome of the appeal.
  (2) Any party may, at the time of filing the appeal or within 10 days thereafter, make written application to the director to present new evidence, stating the materiality of the evidence, and the reasons why the evidence was not introduced at the hearing before the commissioner. The evidence may be allowed in the discretion of the director. Thereafter, 10 days shall be given the parties to rebut the evidence and make written application to the director to present oral or written argument. An application to present written argument shall be granted, but the director shall have discretion to grant oral argument or to grant both oral and written argument. If an application to present oral argument is granted, written notice of the time and place for oral argument shall be given each party at least 10 days before the date set therefor. The time may be shortened by mutual agreement of the parties. If written argument is granted, all parties shall be notified thereof and shall simultaneously file briefs within the time specified by the director.
  (3) The director shall decide the appeal upon the evidence received at the hearing before the commissioner, oral or written argument, and new or additional evidence as the director may have admitted.
  (4) On an appeal pursuant to this section, the director may sustain, reverse, or modify the decision of the commissioner. A copy of the director's decision shall be delivered or mailed to each party. This shall not be a limitation on the director's authority to institute proceedings against any state license or other indicant of permission issued pursuant to this division or pursuant to Division 7 (commencing with Section 12501).
  (5) A review of a decision of the director 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.
  (b) Notwithstanding any other provision of law, whenever the commissioner has reason to believe that continuance of a registration or permit specified in subdivision (a) endangers public health or safety or the environment, the commissioner, without prior notice, may immediately suspend the registration or permit. The commissioner shall inform the party registered or the permittee, in writing, of the suspension as soon as practical, specifying the reasons for the immediate suspension. When acting pursuant to this subdivision, the commissioner, within seven days of informing the permittee or registered person of the immediate suspension, shall issue a written notice of proposed action as specified in subdivision (a). Subdivision (a) applies to the notice of proposed action, hearing, and appeal, except as otherwise provided in this subdivision. If a hearing is requested, it shall be held not later than seven days from the date the request for the hearing is received by the commissioner, unless the person requesting the hearing agrees to a later hearing date. The commissioner's decision shall be issued within 10 days after the conclusion of the hearing. If the party against whom action was taken requested and appeared at a hearing, he or she may appeal the commissioner's decision, issued following the hearing, to the director as provided in subdivision (a). The director may stay the commissioner's decision pending the director's decision.

Any money which is derived under the provisions of Article 1 (commencing with Section 11701) of Chapter 4 and Article 1 (commencing with Section 11901) of Chapter 5 shall be paid into the State Treasury to the credit of the Department of Food and Agriculture Fund. Any money in the Department of Food and Agriculture Fund which is derived under the provisions of this division may be expended for the administration and enforcement of this division, notwithstanding any other provision of law which limits the expenditure of any such money to the specific purposes or to the administration or enforcement of each of these portions of this code separately.

Whenever a decision of the director suspends for 30 days or less the license of a person licensed pursuant to Sections 11701 to 11709, inclusive, or Sections 11901 to 11913, inclusive, and such suspension becomes final, the licensee may, before the operative date of such suspension, petition the director for permission to make a monetary payment in lieu of serving all, or a portion, of the suspension. Upon receipt of such petition, the director may stay the suspension while he makes such investigation as he deems desirable and may grant the petition if he is satisfied (a) that the public health, safety and welfare will not be impaired by permitting the licensee to operate during the period set for suspension; (b) the payment of the sum of money will achieve the desired disciplinary purpose; and (c) that it will be possible to determine with reasonable accuracy from the records of the licensee the services which would have been performed under the privilege of the license during the period in which the license would have been suspended. As to a licensee engaged for hire in the business of pest control, the monetary payment stated in the petition shall be in a specific amount, which is estimated to be the equivalent of 20 percent of the gross receipts of the licensee for each day of the suspension and shall not be less than two hundred fifty dollars ($250) nor more than two thousand five hundred dollars ($2,500). As to a licensee licensed with a pest control aircraft pilot's certificate, the monetary payment in the petition shall be in a specific amount, which is estimated to be the equivalent of 50 percent of the gross earnings of the licensee for all work performed by him under the privileges of the license for each day of the suspension and shall not be less than one hundred dollars ($100) nor more than one thousand dollars ($1,000). When the decision provides that a portion of the suspension shall be stayed on probationary conditions, the petition shall not apply to the portion of the suspension which is so stayed, nor shall such portion be included in determining the 30-day limitation for eligibility of the petition. If the petition is accepted, then upon payment by the licensee of the sum specified the director shall enter his order permanently staying all or a portion of the suspension in accordance with the petition. All payments received pursuant to this section shall be credited to the Department of Agriculture Fund for use in the administration and enforcement of this division.

Any person whose license or certificate issued pursuant to this division, Chapter 3.4 (commencing with Section 14090), or Chapter 3.6 (commencing with Section 14151) of Division 7 is revoked, or whose application for such a license or certificate is denied for reasons other than his or her failure to satisfy examination requirements, is ineligible for a period of three years from the effective date of the decision to deny or revoke the license or certificate to apply or reapply as an individual, a business, or officer, director, administrator, or owner with a 10 percent or greater interest in a business, whichever is applicable, for the same kind of license or certificate or another license or certificate issued by the department if the grounds for the revocation or denial are determined by the department to be directly relevant to the functions, duties, or responsibilities of that other license or certificate.

A commissioner accepting payment for pest control registrations or services by credit card or other payment device may impose a charge for costs incurred in connection with that form of payment and shall use his or her best efforts to minimize those costs. The terms "credit card" and "payment device" have the same meaning as defined in Section 6161 of the Government Code.