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Warning! This is a not the current version of this legislative bill.
Italicized text includes proposed additions to law or the previous version of the bill.
Struck text includes proposed deletions to law or the previous version of the bill.

(pdf version)
AMENDED IN SENATE MARCH 19, 2012
AMENDED IN SENATE JUNE 8, 2011
AMENDED IN ASSEMBLY APRIL 14, 2011
AMENDED IN ASSEMBLY MARCH 15, 2011

INTRODUCED BY Assembly Member Ma

FEBRUARY 17, 2011

An act to amend Sections 1122, 1156.6, 1190, 1190.1,
1191, 1196, 1196.1, and 1196.3 of, and to add Section 1190.2 to, the
Harbors and Navigation Code, relating to harbors and ports

55523.3, 55524.5, 55525.75, 55862.7, 55864, 55901, and 55922 of
the Food and Agricultural Code, relating to processors of farm
products, and making an appropriation therefor
.


LEGISLATIVE COUNSEL'S DIGEST


AB 907, as amended, Ma. Harbors and ports: Monterey Bay
and the Bays of San Francisco, San Pablo, and Suisun: pilotage.
Processors of farm products.
(1) Existing law requires a processor of farm products, as
defined, to be licensed by the Secretary of Food and Agriculture, and
provides that an application for a license or for a renewal of a
license that shows the applicant to be in an unsound financial
condition is sufficient grounds to deny an application. Existing law
provides that if the secretary is not satisfied that an applicant or
licensee is financially responsible, the secretary may, in lieu of
denying, suspending, or revoking the license, accept an irrevocable
guarantee of the obligations of the licensee to all California farm
product creditors.

This bill would also authorize the secretary to accept a surety
bond, in a form and amount acceptable to the secretary, in an amount
that is at least sufficient to pay the obligations of the licensee at
the time the bond is issued.

(2) Existing law authorizes the Department of Food and
Agriculture, as an alternative to revocation or denial of a license,
to stay a revocation subject to specified conditions for a period of
probation, or issue a license subject to specified conditions,
including a requirement of restitution. Existing law also authorizes
the department to settle or adjudicate the disposition of a case
other than by revocation or denial of a license, including ordering
payment of amounts owing and imposing administrative penalties.


This bill would specify that the restitution or amounts owing
shall be to California farm product creditors to whom the licensee
owes money, and would also authorize the department to require an
applicant, licensee, or respondent to pay for investigative costs
incurred by the department. The bill would authorize the department
to impose an administrative fine, not to exceed $10,000, on
processors who crush grapes for certain violations, including failing
or refusing to pay for a farm product in the manner specified in a
contract.

(3) Existing law requires a person found to be operating a
business without a license or who has a failed to pay a license fee
pursuant to a certain schedule to pay additional license fees to the
secretary, including paying an amount that is double the amount of
the license fee due.

This bill would require a processor who crushes grapes who
violates those provisions to pay an additional administrative fine to
the secretary, up to a maximum of $6,000.

(4) Existing law prohibits the department from recovering
investigative costs for an administrative licensing action or any
action that has not been filed in a court of law.

This bill would delete that prohibition.

(5) Under existing law, the funds collected pursuant to the
provisions regulating processors of farm products are deposited in
the Department of Food and Agriculture Fund in the State Treasury,
and are continuously appropriated for the administration and
enforcement of those provisions.

Because the administrative fines that would be authorized by this
bill would be deposited in the Department of Food and Agriculture
Fund in the State Treasury, the bill would make an appropriation.

Existing law provides for the regulation and licensing of pilots
for Monterey Bay and the Bays of San Francisco, San Pablo, and Suisun
by the Board of Pilot Commissioners for the Bays of San Francisco,
San Pablo, and Suisun. Existing law specifies the rates of bar
pilotage for vessels inward or outward bound through the Golden Gate
and into or out of the Bays of San Francisco, San Pablo, and Suisun.

This bill would increase those rates, with additional increases
effective January 1, 2013, January 1, 2014, and January 1, 2015. This
bill also would delete obsolete rate increases in those provisions.
The bill would establish a fuel surcharge for each movement of a
vessel using pilot services which would be determined by the board's
executive director according to specified criteria.


Existing law requires the board to adopt a schedule of pilotage
rates applicable to pilots and inland pilots for those operations
that are not otherwise provided for under existing law. Existing law
also requires the board to establish a surcharge for each movement of
a vessel using pilot services to be used for the pilot and inland
pilot continuing education program established by the board.

This bill would make those provisions inapplicable to inland
pilots. This bill would provide that the board's schedule of pilotage
rates for those operations not otherwise provided for under existing
law shall be increased pursuant to the board's findings and
recommendations to the Legislature dated May 25, 2011, with
additional increases effective January 1, 2013, January 1, 2014, and
January 1, 2015. The bill would require the board to post the
schedule of rates on its Internet Web site. The bill would also make
conforming changes.

Under existing law, whenever suspected safety standard violations
concerning pilot hoists, pilot ladders, or the proper rigging of
pilot hoists or pilot ladders are reported to the board, the
executive director is required to assign a commission investigator to
personally inspect the equipment for its compliance with specified
safety standards. This requirement applies to vessels in certain
defined pilotage grounds.

This bill would provide that, if a vessel is expected to pass
outside the pilotage grounds before the investigation, findings, and
recommendations are complete, the port agent would be authorized to
review the initial report of a suspected safety standard violation
and any information gathered as part of the preliminary
investigation. The bill would further provide that if the port agent,
in his or her discretion, concludes that the ladder or hoist
presents a potential danger, the agent would be required to report
the suspected safety standard violation to other pilot organizations.

Existing law makes the owner, operator, and agents of a vessel
jointly and severally liable for $600 per day when a pilot is
unwillingly carried out to sea or unnecessarily detained on board a
vessel.

This bill would increase that amount to $2,058 per day, with
additional increases effective January 1, 2013, January 1, 2014, and
January 1, 2015.

Vote: majority 2/3 . Appropriation:
no yes . Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 55523.3 of the Food
and Agricultural Code
is amended to read:
55523.3. (a) If the director secretary
is not satisfied that an applicant or licensee is financially
responsible, the director secretary
may, in lieu of denying, suspending, or revoking the license, accept
an irrevocable guarantee or a surety bond of the
obligations of the licensee to all California farm product creditors.
The surety bond shall be in an amount that is at least
sufficient to pay for the licensee's obligations at the time the bond
is issued.
The guarantee or surety bond shall be
for any periods period, in any form,
and in any amounts amount that the
director secretary may, from time to
time, require. The director secretary
may, as a condition of accepting and maintaining the guarantee
or surety bond
, require the guarantor to supply financial
information to the director secretary
at times and to the extent the director
secretary
deems advisable.
(b) A guarantee or surety bond placed with the
director
secretary pursuant to subdivision (a)
shall support an action in a court of competent jurisdiction by a
farm products creditor for obligations of the licensee to the
creditor and by a state officer for the obligations of the licensee
to the state related to transactions subject to the guarantee or
surety bond
.
(c) An irrevocable guarantee or surety bond deposited with the
secretary pursuant to this section shall not operate as a release for
purposes of Section 55637.

SEC. 2. Section 55524.5 of the Food and
Agricultural Code
is amended to read:
55524.5. (a) The Legislature finds there to be a substantial
nexus between the conduct specified in Section 55524 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 to California farm product creditors
to whom the licensee owes money, payment of investigative costs
incurred by the department
, payment for extra audits,
immediate revocation on a new violation, or any other terms that
respond to the particular violations or circumstances found. For
processors who crush grapes, terms of probation or terms of
conditional licensure may also include payment of an administrative
fine not to exceed ten thousand dollars ($10,000) for violations of
Sections 55872, 55874, 55875, and 55879.

(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.
SEC. 3. Section 55525.75 of the Food
and Agricultural Code
is amended to read:
55525.75. (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
the 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
is not
limited to, the authority to order payment of amounts
determined owing to California farm product creditors , the
authority to dismiss an action on the department's own initiative,
the authority to order administrative penalties
fines under subdivision (c) of Section 55524.5 , the
authority to order a respondent to pay the department for
investigative costs and 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.
SEC. 4. Section 55862.7 of the Food and
Agricultural Code
is amended to read:
55862.7. (a) If any person is found to be operating a business
without the license required by Section 55521, or failed to pay a fee
in accordance with the schedule in subdivision (b) of Section 55861,
that person shall pay to the secretary double the amount of the
license fee due pursuant to this chapter.
(b) In addition to subdivision (a), if any person is found to be
operating a business within the past five years without a license
required by Section 55521, or failed to pay the fees in accordance
with the schedule in subdivision (b) of Section 55861, that person
shall pay to the secretary an amount equal to that portion of the
fees that were not paid for the last five years the business has
operated.
(c) In addition to the license fees and penalties in subdivisions
(a) and (b), any processor who crushes grapes that is found to be
knowingly operating a business within the past five years without a
license required by Section 55521, or has knowingly failed to pay the
fees in accordance with the schedule specified in subdivision (b) of
Section 55861, the processor shall pay an administrative fine in an
amount, as determined by the secretary, up to five times the amount
of the license fees and penalties due, up to a maximum administrative
fine of six thousand dollars ($6,000).

SEC. 5. Section 55864 of the Food and
Agricultural Code
is amended to read:
55864. All fees which , administrative
fines, and investigative costs that
are collected pursuant to
this chapter shall be paid into the State Treasury monthly and shall
be credited to the Department of Food and Agriculture Fund
and, except as otherwise provided in Section 55433, shall be
expended in carrying out this chapter.
SEC. 6. Section 55901 of the Food and
Agricultural Code
is amended to read:
55901. (a) Except as specified in Section 55902, any misdemeanor
which is prescribed by this article is punishable by a fine of not
less than five hundred dollars ($500) or more than five thousand
dollars ($5,000), by imprisonment in the county jail for not more
than one year, or by both that fine and imprisonment.
(b) For a violation of the offense described in subdivision (a),
the department may recover investigative costs, excluding attorneys'
fees and administrative overhead, for those charges where there has
been a conviction in a court of law, or a court-supervised settlement
has been reached. Nothing in this section allows the
department to recover investigative costs for an administrative
licensing action or any action that has not been filed in a court of
law.

(c) Any person or entity responsible for investigative costs under
this section shall be allowed to audit the department's
investigative costs. The audit must be performed by a third-party
certified public accountant and paid for by the person or entity
requesting the audit. The department shall promulgate regulations to
implement this subdivision by June 1, 2002.
SEC. 7. Section 55922 of the Food and
Agricultural Code
is amended to read:
55922. (a) Any person that violates any provision of this chapter
is liable civilly in the sum of not less than five hundred dollars
($500) or more than one thousand dollars ($1,000) for each
and every
violation, this sum to be
recovered in an action by the secretary in any court of competent
jurisdiction. All sums which are recovered under this section shall
be deposited in the State Treasury to the credit of the Department of
Food and Agriculture Fund.
(b) For a violation of the offense described in
subdivision (a), the
The department
may recover investigative costs, excluding attorneys'
attorney's fees and administrative overhead, for
those charges where there has been a conviction in a court of law,
or a court-supervised settlement has been reached. Nothing in
this section allows the department to recover investigative costs
for an administrative licensing action or any action that has not
been filed in a court of law.

(c) Any person or entity responsible for investigative costs under
this section shall be allowed to audit the department's
investigative costs. The audit must shall
be performed by a third-party certified public accountant and
paid for by the person or entity requesting the audit. The department
shall promulgate regulations to implement this subdivision by June
1, 2002. All matter omitted in this version of the bill appears in
the bill as amended in the Senate, June 8, 2011. (JR11)