Article 21. Actions And Penalties of California Food And Agricultural Code >> Division 21. >> Part 2. >> Chapter 1. >> Article 21.

Any action for any penalty or other remedy which is prescribed under any provision of this chapter shall be commenced within three years from the date of the alleged violation.

The penalties, remedies, procedures, and actions which are prescribed by this article apply in instances of any violation or complaint of any violation of any provision of this chapter, any marketing order, or any regulation, or rule and regulation, which is issued by the director pursuant to this chapter or pursuant to any marketing order which is issued under this chapter.

Every person that violates any provision of this chapter or any provision of any marketing order which is duly issued by the director pursuant to this chapter, is guilty of a misdemeanor, and upon conviction, shall be punished by a fine of not less than one hundred dollars ($100), nor more than one thousand dollars ($1,000), or by imprisonment of not less than 10 days nor more than six months, or by both such fine and imprisonment. Each violation during any day constitutes a separate offense.

Any person that violates this chapter or any marketing order which is duly issued by the director and in effect pursuant to this chapter, or violates any rule or regulation which is issued by the director pursuant to this chapter or the marketing order, is liable civilly in an amount of not more than two thousand five hundred dollars ($2,500) for each and every violation. Each violation during any day is a separate offense.

(a) When the director makes a determination that a marketing program assessment payment due pursuant to this chapter is deficient as to the payment due, the director may determine the amount of the deficiency, including any applicable penalty, as provided in this section. After giving notice that a deficiency determination is proposed and an opportunity to file a report or provide supplemental information is provided, the director may make one or more deficiency determinations of the amount due for any reporting period based on information in the director's possession. When a business is discontinued, a deficiency determination may be made at any time thereafter as to liability arising out of the operation of that business. The director shall give notice of the proposed deficiency determination and the notice of deficiency determination by placing the notice thereof in a sealed envelope with postage paid addressed to the person affected as it appears in the records of the marketing order or as otherwise available to the director. The giving of notice is complete at the time of deposit in the United States mail. In lieu of mailing, a notice may be served personally by delivering it to the person to be served. Except in the case of fraud or failure to file a required return, a notice of a deficiency determination shall be given within four years of the accrual of the deficiency.
  (b) The person against whom a deficiency determination is made may petition the director for redetermination within 30 days after the serving of the notice of deficiency determination. If a petition is not filed within 30 days, the deficiency determination shall become final. A petition for redetermination shall be in writing, state the specific grounds upon which it is based, and be supported by applicable records and declarations under penalty of perjury that the information supporting the petition is accurate and complete. If a petition for redetermination is duly filed, the director shall reconsider the deficiency determination and may grant a hearing thereon. The director shall, as soon as practicable, make an order on redetermination, which shall become final 30 days after service of notice of the order of redetermination upon the petitioner. The notice of the order shall be served in the same manner as the notice of the original deficiency determination.
  (c) If any amount required to be paid pursuant to a deficiency determination or redetermination is not paid within the time specified in the notice thereof, the director may, within four years thereafter, file in the Superior Court for the County of Sacramento, or the superior court of any other county, a certificate specifying the amount required to be paid, the name and address of the person liable as it appears on the records of the director, and a request that judgment be entered against the person in that amount 30 days after the filing. Notice of the filing shall be given in the same manner as for the notice of deficiency determination. The court shall enter a judgment in conformance with the director's certificate 30 days after its filing, unless a petition for judicial review has been filed within the 30-day period. An abstract of the judgment, or a copy thereof, may be filed with the county recorder of any county. From the time of filing of the judgment, the amount of the judgment constitutes a lien upon all of the property in the county owned by the judgment debtor. The lien has the force, effect, and priority of a judgment lien and shall continue for 10 years from the date of the judgment, unless sooner released or otherwise discharged. The lien imposed by this section is not valid insofar as personal property is concerned against a purchaser for value without actual knowledge of the lien. Execution shall issue upon the judgment upon request of the director in the same manner as execution may issue upon other judgments, and sales shall be held under execution as prescribed in the Code of Civil Procedure.
  (d) The person named in a notice of deficiency determination or redetermination may, within 30 days of the notice of filing with the superior court, file an action for judicial review thereof, as provided in subdivision (c), in the Superior Court for the County of Sacramento or, with the director's consent, the superior court of any other county where the Attorney General maintains an office. As a condition of staying entry of judgment or granting other relief, the court shall require the filing of a corporate surety bond with the director in the amount of the deficiency stated in the certificate. In any court proceeding, the certificate of the director determining the deficiency shall be prima facie evidence of the fee and the amount due and unpaid.
  (e) The provisions of this section are supplemental to any other procedures for collection and imposition of fees and penalties provided by this chapter. In lieu of proceeding pursuant to this section, the director may file a complaint for collection of unpaid assessments as provided by law.

In addition to such civil penalty, any person that knowingly exceeds any quota or allotment or marketable percentage fixed for him under any marketing order, regulation, or rule and regulation, issued by the director pursuant to such marketing order, shall forfeit to this state a sum equal to the current market value of such excess (or three times such amount, in the discretion of the court) which forfeiture may be recoverable in a civil suit which is brought in the name of this state. Any money which is recovered pursuant to this section shall be deposited in accordance with Section 58937.

If the use by a producer or handler of a particular emblem, label, certificate, or other distinctive designation of grade, quality, or condition, except the grade or other quality designations then in effect pursuant to state or federal grade standards, is made contingent upon compliance with certain production or handling regulations which are authorized by the provisions of a marketing order or agreement which is issued and made effective pursuant to this chapter, it is unlawful and a violation of this chapter for any person, that is not participating in, and complying with, such order, agreement, or regulations to use such designation of grade, quality, or condition.

It is a violation of this chapter for any person to willfully render or furnish a false or fraudulent report, statement, or record which is required by the director pursuant to any provision of this chapter, or any marketing order which is effective pursuant to this chapter.

It is a violation of this chapter for any person that is engaged in the handling or processing of any commodity, or in the wholesale or retail trade of the commodity, to fail or refuse to furnish to the director or his duly authorized agents, upon request, information concerning the name and address of the persons from whom he has received any commodity which is regulated by a marketing order that is issued and in effect pursuant to this chapter, and the quantity of such commodity which is so received.

It is a violation of this chapter for any handler to receive, handle, or have in his possession any commodity which is regulated by a marketing order or marketing agreement which is issued pursuant to this chapter, that the handler knows is being marketed by the producer of the commodity without complying with, or in violation of any provision of such marketing order or agreement.

The director on his own motion may, or shall upon complaint of any interested party which charges any violation of any provision of this chapter or any provision of any marketing order, regulation, or rule and regulation, which is issued by the director and effective pursuant to this chapter, do one of the following:
  (a) Refer the matter directly to the Attorney General or any district attorney for the institution of legal proceedings upon the matter.
  (b) If he deems it necessary or advisable, immediately call an administrative hearing to consider the charges which are set forth in such verified complaint.

If the matter is referred directly by the director to the Attorney General or any district attorney, such officer shall thereupon bring an appropriate action in a court of competent jurisdiction in this state, if, after examination of the complaint and evidence he believes that a violation has occurred.

If an administrative hearing is called by the director, the director shall cause a copy of such complaint, together with a notice of the time and place of hearing of such complaint, to be served personally or by mail upon every person that is named as a respondent in such verified complaint. Such service shall be made at least 10 days before the hearing.

The hearing shall be held at one of the following places which is selected by the director:
  (a) The city or place in which the principal place of business of the respondent is situated.
  (b) The city or place in which the violation complained of is alleged to have occurred.
  (c) In the nearest office of the department.

At the time and place which is designated for such administrative hearing, the director shall hear the parties to the complaint and shall enter in his office at Sacramento, his findings which are based upon the facts that are established at such hearing. If from the testimony and evidence which is adduced at the administrative hearing the director finds that no violation has occurred, he shall forthwith dismiss such complaint and notify the parties to such complaint.

If the director finds from the administrative hearing that a violation has occurred, he shall so enter his findings and notify the parties to such complaint. The director may refer the matter to the Attorney General for the institution of legal proceedings or he may notify such parties to cease and desist from further violation. Upon their refusal or failure to comply, or if he finds that the facts or circumstances warrant immediate prosecution, he shall file a complaint with the Attorney General or any district attorney which requests that such officer commence any action which is authorized in this chapter against such respondent in a court of competent jurisdiction as set forth in this article.

The Attorney General, or any district attorney, shall upon complaint by the director or any other person, or may, upon his own initiative, if, after examination of the complaint and evidence he believes a violation has occurred, bring an action for criminal penalties in the name of the people of this state in any court of competent jurisdiction in this state against any person violating any provision of this chapter or any marketing order which is duly issued by the director and effective pursuant to this chapter.

The Attorney General shall upon complaint by the director or may, upon his own initiative, if, after examination of the complaint and evidence he believes a violation to have occurred, bring an action in the name of the people of this state in the superior court of this state for civil penalties or for injunctive relief, including specific performance of any obligation which is imposed by any marketing order, regulation, or rule and regulation, which is issued pursuant to this chapter, against any person violating any provision of this chapter or of any marketing order, regulation, or rule and regulation, which is duly issued by the director pursuant to this chapter.

If it appears to the court upon any application for a temporary restraining order, or upon the hearing of any order to show cause why a preliminary injunction should not be issued, or upon the hearing of any motion for a preliminary injunction, or if the court shall find, in any such action, that any defendant is violating, or has violated, any provision of this chapter, any marketing order, or any regulation, or rule and regulation, duly issued by the director pursuant to this chapter, the court shall enjoin the defendant from committing further violations, and may compel specific performance of any obligation imposed by a marketing order, or any regulation which is issued by the director pursuant to this chapter.

In any suit brought by the Attorney General to enforce any provision of this chapter, any marketing order which is issued by the director and effective pursuant to this chapter, or any regulation, or rule and regulation, which is issued by the director pursuant to the provisions of any marketing order, the judgment, if in favor of the state, shall provide that the defendant pay to the director the costs which were incurred by the director and by the advisory board concerned with the administration of such marketing order in the prosecution of such action. Any money which is recovered shall be deposited in accordance with Section 58937.

Any such action may be commenced either in the county where defendant resides, or where any act or omission, or part of the act or omission, which is complained of occurred.

The penalties and remedies which are prescribed in this article with respect to any violation mentioned in this article are concurrent and alternative, and neither singly nor combined are exclusive, and either singly or combined are cumulative with any and all other civil, criminal, or administrative rights, remedies, forfeitures, or penalties which are provided or allowed by law with respect to any such violation.

In lieu of other procedures which are provided in this article, the director may, if he finds that any person has exceeded any quota, allotment, or marketable percentage which is fixed for him pursuant to any marketing order issued by the director pursuant to this chapter, and if the director further finds that such person did not intend to violate such quota, allotment, or marketable percentage, make demand on such person to pay to the director an amount equal to the market value of the quantity marketed in excess of such quota, allotment, or percentage. Such market value shall be only the cost of acquisition to the person that is concerned and does not include the value of services or commodities which are added subsequent to acquisition. Payment of such amount shall preclude any further enforcement action in connection with such transaction. If such person refuses to pay, or fails to pay, the amount which is demanded, the director shall thereupon proceed in accordance with the other provisions of this article. Any money which is recovered pursuant to this section shall be deposited in accordance with Section 58937.